United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE NAVY, HUMAN
RESOURCES OFFICE, Camp Pendleton, CA,
Employer
__________________________________________

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

Docket No. 14-1739
Issued: May 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2014 appellant filed a timely appeal from a July 2, 2014 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant established a recurrence of disability on March 25, 2014
due to the accepted February 23, 2010 occupational injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence after the issuance of the July 2, 2014 decision. The Board
lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On February 23, 2010 appellant, then a 59-year-old military pay technician, filed a
traumatic injury claim (Form CA-1) alleging a right knee fracture as a result of tripping over a
parking divider in a parking lot at the employing establishment. On August 11, 2010 OWCP
accepted her claim for a contusion of the right knee.
In a report dated October 26, 2010, Dr. Norman Kane, a Board-certified orthopedic
surgeon, diagnosed appellant with right knee advanced medial compartment osteoarthritis with
tearing and extrusion of the medial meniscus; a vertical tear of the posterior horn of the medial
meniscus; and moderate patellofemoral chondromalacia. He noted that she was working and that
she wanted to wait for another steroid injection to her right knee. Dr. Kane released appellant to
work without restrictions in a form dated August 24, 2010. On December 21, 2010 appellant
underwent a steroid injection.
In a diagnostic report dated May 8, 2010, Dr. Gregory Nicpon, a Board-certified
radiologist, interpreted the results of a magnetic resonance imaging (MRI) scan of appellant’s
right knee. He stated an impression of advanced medial compartment osteoarthritis with tearing
and medial extrusion of the medial meniscus, with a vertical tear running through the posterior
horn; moderate patellofemoral chondromalacia; a one centimeter calcified body in the anterior
notch; and a small joint effusion.
On January 21, 2011 Dr. Kane stated that steroid injection created a good response in the
right knee, but that appellant’s symptoms had increased. Appellant had developed enough pain
and discomfort to proceed with an arthroscopic surgical procedure, which he recommended.
By letter dated February 3, 2011, OWCP denied appellant’s request for authorization for
right knee arthroscopic surgery, finding that the evidence on file did not establish that her right
knee condition was causally related to the employment incident of February 23, 2010.
In a report dated February 18, 2011, Dr. Kane stated:
“I did receive a report indicating that arthroscopic evaluation was not certified.
“As you recall, when I began evaluating this [appellant], which was over one year
ago, on May 28, 2010 she had an MRI scan, which reveals tearing and extrusion
of the medial meniscus with a vertical tear running through the posterior horn.
For over one year I have been encouraging [her] to have a surgical procedure but
she declined this offer. However, [appellant’s] symptoms have now reached the
point that she can no longer live with them, and for this reason she has elected to
undergo surgery of this nature....
“It is essentially medical malpractice to deny [appellant] the option of undergoing
an arthroscopic meniscectomy and chondroplasty. Hopefully, authorization will
be received expeditiously for [her] to undergo treatment of this nature.
[Appellant] will continue her regular duties.”
He again requested authorization for an arthroscopic procedure in a note dated April 8, 2011.
2

By letter dated April 15, 2011, OWCP rejected appellant’s request for an arthroscopic
meniscectomy. It stated that it had examined the MRI scan results dated May 8, 2010, but that it
required medical evidence explaining the relationship between appellant’s preexisting
osteoarthritic and degenerate meniscus conditions and the February 23, 2010 employment injury.
On April 19, 2011 Dr. Kane responded to OWCP’s April 15, 2011 letter. He stated that
appellant did have preexisting degenerate osteoarthritic changes of the joint, but that her
meniscal tear was caused by the injury of February 23, 2010. Dr. Kane noted that the need for
surgical intervention was the accepted injury and the resulting condition.
On May 19, 2011 OWCP authorized a right knee arthroscopy.
In a statement of accepted facts dated June 9, 2011 prepared for a nurse intervention,
OWCP stated that appellant’s accepted conditions included a right knee contusion and a medial
meniscus tear.
On June 14, 2011 Dr. Kane stated that appellant would be temporarily totally disabled
from June 24 through July 1, 2011, but could perform her usual duties from June 14
through 23, 2011.
In an operative report dated June 24, 2011, Dr. Kane described the procedures of a right
knee examination under anesthesia, an athrthoscopic patellar chondroplasty, a resection of the
tear of the midsubstance of the medial meniscus, a resection of the tear and fraying of the
midsubstance of the lateral meniscus, and a reactive synovectomy. There were no complications.
On July 1, 2011 Dr. Kane noted that appellant would be temporarily totally disabled from
that date until July 15, 2011. On July 15, 2011 he extended the period she would be temporarily
totally disabled until July 29, 2011. Dr. Kane noted that appellant still had a mild antalgic gait
pattern, but that the wound on her right knee was well healed. He diagnosed her with a status
post right knee partial medial and partial lateral meniscectomy.
On July 29, 2011 Dr. Kane again extended appellant’s temporary total disability from
July 27 through August 7, 2011. He noted that she could return to her usual duties on August 8
through 26, 2011.
In a report dated July 29, 2011, Dr. Kane noted that it had been five weeks since
appellant’s surgery and that she did not have the “spring back” in her leg yet. He noted that she
was walking with a mild antalgic gait pattern and had completed her therapy program.
On August 26, 2011 Dr. Kane stated that appellant was still having some pain and
discomfort along the medial joint line of her right knee and that she was having a hard time
working. He further noted that she could perform her usual duties from August 26 through
September 15, 2011.
In a report dated September 16, 2011, Dr. Kane stated that appellant was still having pain
and discomfort with significant loss of articular cartilage in the medial compartment of her right
knee. He stated that he would request authorization for a leg brace. Dr. Kane further noted that
appellant could perform her usual duties from September 16 through October 7, 2011.
3

On October 7, 2011 Dr. Kane noted that appellant still had pain and discomfort in her
right knee. He stated that she could walk, but not for long distances, and that she could not kneel
or squat. On October 28, 2011 Dr. Kane injected appellant’s right knee with Synvisc One, which
had previously been approved by OWCP. He further noted that she could perform her usual
duties from October 28 through November 18, 2011.
In a report dated November 18, 2011, Dr. Kane stated that appellant had a good response
to the injection on October 28, 2011. He noted that she was still limping slightly, but that her
range of motion had increased.
On December 23, 2011 Dr. Kane noted that appellant was walking reasonably well, but
that there was some tenderness in the medial joint line.
In a report dated February 2, 2012, Dr. Kane stated that appellant told him her right knee
condition was doing well because she was not working. Appellant explained that when she was
at work, she had to get up and down regularly, and that she has not had to do that recently.
Dr. Kane continued to state that she could perform her regular duties.
On March 15, 2012 Dr. Kane noted that appellant’s range of motion had increased and
that she was doing reasonably well. He stated that she was a candidate for a medial
unicompartment arthroplasty, but that she did not want to have surgery at the moment.
In a report dated July 16, 2012, Dr. Kane noted that appellant was aware that she had
significant degenerative changes of the medial joint line of her right knee and was postponing
further treatment until her condition worsened. He stated that she was walking and working.
Dr. Kane noted that appellant was temporarily partially disabled from July 16 through 17, 2012,
with restrictions of lifting no more than 20 pounds. In another report dated September 18, 2012,
he stated that she could result her usual and customary duties on that date.
On March 1, 2013 Dr. Kane stated that appellant still had pain and discomfort in her right
knee and wished to undergo a medial unicompartmental arthroplasty.
By letter dated March 11, 2013, OWCP denied appellant’s request for authorization for
medial unicompartmental arthroplasty. It stated that the medical reports of record did not
contain significant findings or diagnostic test results to demonstrate a change in her condition
such as to warrant surgery.
In a report dated April 12, 2013, Dr. Kane stated that appellant’s symptoms had
progressed such that she was having difficulty with any weight bearing, kneeling, squatting, or
climbing. He reported that her range of motion had decreased.
On May 20, 2013 Dr. Kane responded to OWCP’s denial of March 11, 2013. He noted:
“[Appellant] has complete loss of articular cartilage of the medial surface of the
tibial plateau. She has continued with a conservative approach, but she has
reached the point that she can no longer live with the pain and discomfort in her
right knee, so authorization was requested to perform a medial unicompartmental

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arthroplasty. [Appellant] has failed an arthroscopic evaluation, steroid injections,
Synvisc injections, and extensive physical therapy.”
He continued to submit reports in support of authorization of this procedure through
March 4, 2014.
In a note dated March 25, 2014, Dr. Kane stated that appellant was temporarily totally
disabled from March 25 through April 22, 2014 pending authorization for surgery. Appellant
submitted claims for compensation for leave without pay from March 25 through April 18, 2014.
By letter dated April 22, 2014, OWCP informed appellant that it considered her claims
for compensation for leave without pay as a claim for recurrence due to her employment-related
condition. It stated that the evidence received in support of her continuing disability, the note
dated March 25, 2014, was insufficient to support her claim for recurrence because it lacked
sufficient objective findings and rationale that would support temporary total disability. OWCP
asked that appellant submit additional medical evidence and to respond to its inquiries.
On April 28, 2014 appellant responded to OWCP’s inquiries. She stated that it was an
ongoing recurrence due to walking up and down at work. Appellant noted that she never had any
trouble with her knee until she fell and that her knee continued to worsen.
Appellant submitted progress reports from Dr. Kane dated March 25 and April 22, 2014,
which noted that her symptoms were getting worse. Dr. Kane stated in his report of March 25,
2014 that he was going to take her out of work and noted that her range of motion had decreased.
In his report of April 22, 2014, he noted that appellant remained temporarily totally disabled and
that when surgery was performed she could return to her normal vocation. Dr. Kane submitted a
form noting that she was temporarily totally disabled from April 22 through May 20, 2014,
without elaboration.
By decision dated July 2, 2014, OWCP denied appellant’s claim for recurrence. It found
that she had not submitted a rationalized medical opinion providing objective findings and
rationale that would support a material worsening of her claim. OWCP further noted that
appellant had not provided a response to the question of whether she had sustained any injuries
on or off duty since her original injury. It listed her accepted conditions as a contusion of the
right knee, a tear of the medial meniscus of the right knee, and an old bucket handle tear of the
medial meniscus of the right knee.
LEGAL PRECEDENT
Under FECA,3 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.4 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment

3

Supra note 1.

4

See Prince E. Wallace, 52 ECAB 357, 358 (2001).

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injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.5
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.6 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.7
OWCP’s procedures correspondingly state that a recurrence of disability includes a work
stoppage caused by a spontaneous material change in the medical condition demonstrated by
objective findings. That change must result from a previous injury or occupational illness rather
than an intervening injury or new exposure to factors causing the original illness. It does not
include a condition that results from a new injury, even if it involves the same part of the body
previously injured.8
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
the employment injury and supports that conclusion with medical reasoning.9 Where no such
rationale is present, the medical evidence is of diminished probative value.10
ANALYSIS
OWCP accepted appellant’s claim for a contusion of the right knee, a tear of the medial
meniscus of the right knee, and an old bucket handle tear of the medial meniscus of the right
knee. Appellant returned to full duty on August 8, 2011 and continued working until March 25,
2014, when she claimed to be temporarily totally disabled from work. The Board finds that she
did not submit sufficient rationalized medical evidence, supported by objective findings and

5

Cheryl L. Decavitch, 50 ECAB 397, 401 n.5 (1999); Maxine J. Sanders, 46 ECAB 835, 840 (1995).

6

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525, 531 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a
medical condition as a documented need for medical treatment after release from treatment for the accepted
condition).
7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) (October 2009).

9

Ronald A. Eldridge, 53 ECAB 218, 221 (2001).

10

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

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rationale, to establish that her present disability was causally related to her accepted injury.11 For
this reason, appellant has not met her burden of proof.
Appellant did not allege a change in the nature and extent of light-duty job requirements,
because she had returned to full duty. She attributed her recurrence of disability to a change in
the nature and extent of her employment-related condition. Appellant must provide medical
evidence to establish that she became disabled due to an exacerbation of her accepted workrelated conditions.12
In support of her claim for recurrence on March 25, 2014, appellant submitted reports
from Dr. Kane. In a note dated March 25, 2014, Dr. Kane stated that she was temporarily totally
disabled from March 25 through April 22, 2014 pending authorization for surgery. He stated in
his report of March 25, 2014, that he was going to take appellant out of work and noted that her
range of motion had decreased. In his report of April 22, 2014, Dr. Kane noted that she
remained temporarily totally disabled and that when surgery was performed she could return to
her normal work. He submitted a form noting that she was temporarily totally disabled from
April 22 through May 20, 2014, without elaboration. These reports did not provide a
rationalized medical opinion addressing specific dates of disability, explaining how the
progression of appellant’s condition was causally related to the original work injury of 2010, or
why it was now totally disabling.
A physician’s opinion on causal relationship between a claimant’s disability and an
employment injury is not dispositive simply because it is rendered by a physician. To be of
probative value, the physician must provide rationale for the opinion reached.13 Without medical
reasoning showing that the conclusion reached is sound, logical, and rational, the opinion of
Dr. Kane is of diminished probative value.14
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury.15
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

11

See T.M., Docket No. 06-440 (issued August 7, 2006).

12

See Jackie D. West, 54 ECAB 158, 160-61 (2002).

13

Thaddeus J. Spevack, 53 ECAB 474 (2002).

14

See E.A., 58 ECAB 677 (2007).

15

See Ronald C. Hand, 49 ECAB 113 (1997).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability on March 25, 2014 causally related to the accepted work injury of
February 23, 2010.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2014 decision of the Office of Workers’
Compensation programs is affirmed.
Issued: May 15, 2015
Washington, DC

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

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

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

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

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

Docket No. 17-0808
Issued: July 7, 2017

Case Submitted on the Record

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

JURISDICTION
On March 1, 2017 appellant, through counsel, filed a timely appeal from a November 17,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a bilateral knee
condition with left meniscal tear causally related to factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 22, 2016 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that, on or before November 25, 2014, while on limited
duty, she suffered chondromalacia and an effusion of the right knee, left meniscal tear, patellar
tendinitis, and osteoarthritis of both knees due to prolonged walking, standing, and climbing
while casing and delivering mail. She stopped work on or about August 8, 2014 and did not
return.
In a February 4, 2016 letter, OWCP notified appellant of the additional evidence needed
to establish her occupational disease claim, including a detailed description of the work factors
alleged to have caused or contributed to the claimed conditions, and a medical report from her
attending physician explaining how and why those factors would cause bilateral knee conditions.
It afforded her 30 days to submit additional evidence.
In response, appellant provided a February 4, 2015 report from Dr. Marilyn Watts, an
attending retired Board-certified pediatrician practicing Ayurvedic medicine, related appellant’s
account of prolonged walking and standing while casing and delivering mail while on duty.
Dr. Watts noted that November 25, 2014 magnetic resonance imaging scans of appellant’s knees
showed “osteoarthritic changes of the medial compartment of the left knee and a tear of the left
medial meniscus, and chondromalacia and degenerative arthritis of the lateral compartment of
the right knee with patellar tendinosis of the right knee” and a small joint effusion. She opined
that “prolonged standing and prolonged walking as well as the necessary climbing, has further
aggravated the knees bilaterally.”
By decision dated March 17, 2016, OWCP accepted that appellant performed prolonged
standing, walking, and climbing in the performance of duty as alleged, but denied the claim as
causal relationship was not established. It found that the medical evidence did not explain how
the accepted work events would cause the claimed conditions.
On September 12 and October 14, 2016 appellant requested reconsideration. She also
submitted additional evidence. Dr. Watts provided reports dated April 14, May 12, and June 14,
2016, noting a history of July 24, 2013 “bilateral knee surgery (torn menisci).” She related
appellant’s account of an increase in bilateral knee symptoms on August 7, 2014 due to
“excessive repetitive activities.” Dr. Watts diagnosed knee sprains and sprains, and a torn left
medial meniscus.
On October 19, 2016 appellant filed claims for compensation (Forms CA-7) for the
period August 8, 2014 through October 15, 2016. She submitted employing establishment time
keeping forms showing that she was “off work due to injury” from July 12, 2014 to
April 22, 2016.
By decision dated November 17, 2016, OWCP denied modification of its March 17, 2016
decision, finding that the medical evidence of record failed to meet appellant’s burden of proof in
establishing causal relationship. It found that her physicians did not differentiate between workrelated and preexisting conditions, and provided insufficient medical rationale explaining how
and why the accepted work factors would cause the claimed knee conditions.

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LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA; that the claim was filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged; and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.4 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.5
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.6 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.7
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 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 medial certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.8
ANALYSIS
Appellant claimed that she sustained bilateral knee conditions and a torn left medial
meniscus due to prolonged walking, standing, and climbing while casing and delivering mail on
or before November 25, 2014. OWCP accepted that these events occurred at the time, place, and
in the manner alleged, but denied the claim as the medical evidence of record was insufficient to
establish causal relationship.
3

Id.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

20 C.F.R. § 10.5(q).

7

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

8

Solomon Polen, 51 ECAB 341 (2000).

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In support of her claim, appellant provided reports from Dr. Watts dated from February 4,
2015 through June 14, 2016. Dr. Watts related appellant’s account of prolonged standing
walking, and climbing in the performance of duty. She opined that these activities “further
aggravated the knees bilaterally,” with a marked increase in symptoms on August 7, 2014.
However, Dr. Watts failed to explain how and why the accepted work factors would cause the
claimed bilateral knee conditions. In the absence of a clear presentation of the pathophysiologic
basis for supporting a causal connection between appellant’s duties and the claimed degenerative
arthritis, chondromalacia, and left meniscal tear, Dr. Watts’ opinion is insufficient to meet
appellant’s burden of proof.9
On appeal counsel contends that OWCP’s November 17, 2016 decision was “contrary to
law and fact.” As set forth above, the medical evidence of record is insufficiently rationalized to
meet appellant’s burden of proof to establish causal relationship.
Appellant may submit additional evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a bilateral
knee condition with left meniscal tear causally related to factors of her federal employment.

9

Deborah L. Beatty, 54 ECAB 340 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 17, 2016 is affirmed.
Issued: July 7, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Oberlin, OH, Employer
__________________________________________

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

Docket No. 06-1690
Issued: January 29, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2006 appellant filed a timely appeal of a June 14, 2006 decision of the Office
of Workers’ Compensation Programs, denying his claim for leave buyback for the period
December 20, 2003 to April 2, 2004 and compensation for lost wages for April 3, 2005 and
continuing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant was entitled to leave buyback for intermittent days
between December 20, 2003 and April 14, 20041 and for compensation for lost wages from
April 5 to 9 and 14, 2004 and continuing.
1

Although appellant filed a claim for compensation beginning December 20, 2003, the record shows that he
began using sick leave for his accepted condition on December 15, 2003. He used four hours of sick leave for
April 14, 2004 and was in leave without pay (LWOP) status for the remaining four hours on that date. Additionally,
appellant used leave for April 12 and 13, 2004.

FACTUAL HISTORY
On April 6, 2004 appellant, then a 39-year-old air traffic control specialist, filed an
occupational disease claim alleging that he sustained post-traumatic stress disorder (PTSD)
beginning April 25, 2001 due to stressful incidents at work, including three near collisions of
aircraft. On August 13, 2004 the Office accepted his claim for PTSD caused by operational
errors which resulted in “near miss” aircraft incidents. The Office advised appellant that he
needed to submit medical evidence documenting any periods of disability. On June 24, 2002 he
was assigned to temporary light duty performing administrative tasks in the quality assurance
section because he was unable to perform his regular duties. From November 17 to
December 14, 2003 appellant was assigned to administrative tasks in the plans and programs
section. On December 15, 2003 he was assigned to “A-side Duties” working with air traffic
controllers. Appellant used sick leave beginning December 15, 2003 and, beginning in
April 2004, LWOP. He was permanently medically disqualified from air traffic control work by
the regional flight surgeon on November 12, 2003.
On August 25, 2004 appellant filed a claim for leave buyback for the period
December 20, 2003 to April 2, 2004 for disability causally related to his accepted PTSD. He
filed a claim for compensation for lost wages for April 3, 2004 and continuing.2
On September 29, 2004 the Office advised appellant that he needed to submit additional
medical evidence establishing that his claimed periods of total disability were causally related to
his accepted PTSD.
In a report dated October 25, 2004, Dr. Joel S. Steinberg, a Board-certified internist
specializing in forensic psychiatry and an Office referral physician, provided a comprehensive
psychiatric evaluation of appellant’s condition based on the medical records, statement of
accepted facts, mental status examination and clinical interview. He diagnosed PTSD and panic
disorder, both in a moderately good degree of remission. Dr. Steinberg stated:
“[Appellant] had been assigned to office duty until October 2003. He had then
been assigned to another office duty. By Christmas of 2003 there was no more
work to do with regard to the second assignment of office duty. As a result, he
was ‘put back on the floor’ as an associate on the A-side. His task there was to
coordinate and disseminate various kinds of information. However, when he
returned to the floor, he found that many of the symptoms that he had previously
experienced (which primarily were panic attacks …) returned suddenly and in
severe form.”
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2

Employing establishment time analysis forms show that appellant used sick and annual leave for intermittent
dates between December 15, 2003 and April 14, 2004. He worked 56 hours from December 16 to 23, 2003, five
hours from January 2 to 3, 2004 and 16 hours from January 5 to 6, 2004. Appellant was in LWOP status from
April 5 to 9 and 14, 2004 (4 hours) and continuing. He used 16 hours of sick leave for April 12 to 13, 2004 and 4
hours for April 14, 2004.

2

“I asked [appellant] if he presently was working. He replied that he was not
working now. [Appellant] had last worked in January 2004. He thought that he
might have lasted as long as seven or even ten days once he had been transferred
out of the office duty to the A-side in January 2004. [Appellant] recalled that as
he entered the A-side for a return to work in the active part of controlling
airplanes that he had developed all of his old apprehensions again.”
***
“The most significant events in terms of [appellant’s] inability to carry out his job
was his forced return to work in early January 2004 after most of his psychiatric
symptoms were in a considerable degree of remission. He still found that he
experienced an overwhelming sense of anxiety when he was put out on the active
floor.”
***
“[Appellant] has been totally disabled from his work as an air traffic controller
since January 13, 2004. However, he has not been totally disabled from work.
[Appellant] retains the capacity to do a wide variety of substantial gainful
activities.”
***
“[Appellant] currently is relatively asymptomatic and can be expected to remain
that way as long as he is not forced to take an active role as an air traffic
controller. He found that he was able to work at the tower in other capacities
without disabling symptoms. [Appellant] simply cannot function as an air traffic
controller.” (Emphasis in the original.)
In an undated letter to his representative, appellant stated that he did not believe
Dr. Steinberg was fully aware of the nature of his A-side work in 2004. He stated that the A-side
was a part of the air traffic control team and, even though he did not talk to the air traffic
controllers directly, he had direct contact with other individuals in the control room and his
duties as part of the air traffic control team made him responsible if anything went wrong. He
could be held accountable for an operational error. Appellant indicated that it was the direct
contact with the air traffic control room that aggravated his PTSD.
By decision dated June 2, 2006, the Office denied appellant’s claim for leave buy back
and compensation for lost wages on the grounds that the medical evidence did not establish that
he was totally disabled for work.
Appellant requested an oral hearing that was held on March 29, 2006.
By decision dated June 14, 2006, an Office hearing representative affirmed the June 2,
2005 decision.

3

LEGAL PRECEDENT
Appellant has the burden of proving by the preponderance of the reliable, probative and
substantial evidence that he was disabled for work as the result of an employment injury.3
Monetary compensation benefits are payable to an employee who has sustained wage loss due to
disability for employment resulting from the employment injury.4 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues which must be proved by a preponderance of reliable, probative and substantial
medical evidence.5
In situations where compensation is claimed for periods where leave was used, the Office
has the authority and the responsibility to determine whether the employee was disabled during
the period for which compensation is claimed.6 The Office determines whether the medical
evidence establishes that an employee is disabled by an employment-related condition during the
period claimed for leave buyback, after which the employing establishment will determine
whether it will allow the employee to buyback the leave used.7
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and that he cannot perform the light-duty position. As part of this burden of proof, the employee
must show either a change in the nature and extent of the injury-related condition or a change in
the nature and extent of the light-duty job requirements.8
ANALYSIS
Appellant has the burden to provide medical evidence establishing that he was totally
disabled for the period December 20, 2003 and continuing due to a worsening of his accepted
work-related condition, PTSD, or a change in his job duties such that he was unable to perform
his light-duty work. However, it is well established that proceedings under the Act are not
adversarial in nature, and, while the claimant has the burden to establish entitlement to

3

David H. Goss, 32 ECAB 24 (1980).

4

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

5

Edward H. Horten, 41 ECAB 301 (1989).

6

Laurie S. Swanson, 53 ECAB 517 (2002); see also 20 C.F.R. § 10.425, which provides: “The employee may
claim compensation for periods of annual and sick leave which are restorable in accordance with the rules of the
employing [establishment]. Forms CA-7 and CA-7b are used for this purpose.”
7

Laurie S. Swanson, supra note 6.

8

Bryant F. Blackmon, 57 ECAB ___ (Docket No. 04-564, issued September 23, 2005); Terry R. Hedman, 38
ECAB 222 (1986).

4

compensation, the Office shares responsibility in the development of the evidence.9 The Office
has an obligation to see that justice is done.10 Once the Office undertakes development of the
record, it has the responsibility to do so in a proper manner.11
The Board finds that this case is not in posture for a decision.
Dr. Steinberg found that appellant was totally disabled from his work as an air traffic
controller but indicated that appellant was able to work at the employing establishment in other
capacities without disabling symptoms. He indicated that, when appellant was assigned to the
A-side, returning to work in the active part of controlling airplanes, he developed the previous
symptoms of his PTSD suddenly and in severe form. Dr. Steinberg stated that appellant could be
expected to remain asymptomatic as long as he was not forced to take an active role as an air
traffic controller. Appellant indicated that the A-side job, to which he was assigned on
December 15, 2003, gave him an active role in the air traffic control team and, even though he
did not talk to the air traffic controllers directly, he had direct contact with other individuals in
the control room. He stated that his duties as part of the air traffic control team made him
responsible if anything went wrong and he could be held accountable for an operational error.
Appellant indicated that it was the direct contact with the air traffic control room functions that
aggravated his PTSD.
The Board finds that further development of the medical evidence is needed on the issue
of whether the change in the nature and extent of appellant’s light-duty assignment in
January 2004 caused a change in his accepted PTSD such that he was totally disabled. While his
first two light-duty assignments involved administrative duties in an area away from the air
traffic control room, his change in light-duty assignment in January 2004 required his
involvement in air traffic control functions which he alleged caused a recurrence of total
disability causally related to his accepted PTSD.
CONCLUSION
The Board finds that this case requires further development of the medical evidence. On
remand, the Office should ask Dr. Steinberg for a supplemental report addressing the issue of
whether appellant’s change in light-duty work on December 15, 2003, in which he had an active
role in the air traffic control functions, caused an aggravation of his accepted PTSD and a
recurrence of total disability. After such further development as the Office deems necessary, it
should issue an appropriate decision.

9

See Udella Billups, 41 ECAB 260 (1989).

10

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

11

See Henry G. Flores, Jr., 43 ECAB 901 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 14, 2006 is set aside and the case is remanded for further
development consistent with this decision.
Issued: January 29, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, RUGBY STATION,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 12-18
Issued: April 24, 2012

Case Submitted on the Record

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

JURISDICTION
On September 28, 2011 appellant filed a timely appeal of the April 8, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), denying her request for
reconsideration.1 Because more than 180 days elapsed from the most recent merit decision dated
June 4, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
case pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued on April 8, 2011, the 180-day computation begins April 9, 2011. Since using October 14, 2011, the date
the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark
is considered the date of filing. The date of the U.S. Postal Service postmark is September 28, 2011, which renders
the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that a medical report from an attending physician is
sufficient to establish that she has continuing residuals of her accepted employment injuries.
FACTUAL HISTORY
OWCP accepted that on December 3, 1998 appellant, then a 26-year-old letter carrier,
sustained a left knee and lumbosacral sprain when she tripped on stairs at work. She stopped
work on the date of injury and returned to limited-duty work on December 21, 1998. Appellant
stopped work on January 15, 1999 and returned to limited-duty work on January 26, 1999. On
September 18, 2004 she stopped work and filed a recurrence of disability claim as she was
advised by management that work was no longer available. OWCP paid appellant appropriate
wage-loss compensation for total disability.
In a September 22, 2008 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective September 28, 2008. It found that an April 2, 2008 medical report
of Dr. Michael P. Rafiy, a Board-certified orthopedic surgeon and OWCP referral physician,
represented the weight of the medical evidence and established that she no longer had any
residuals or disability causally related to her accepted December 3, 1998 employment injuries.
In a January 5, 2009 report, Dr. Pran N. Sood, an attending Board-certified orthopedic
surgeon, obtained a history of the December 3, 1998 employment injuries and appellant’s
medical treatment and social background. He listed findings on physical and x-ray examination
of the neck, lower back and left hand, hip and leg. Dr. Sood advised that appellant had low back
pain with left lower extremity radiculopathy, coccyalgia of the left hip, rule out sacroiliac joint
pathology, chronic cervical pain with cervical spondylosis and left upper extremity radiculopathy
rule out left carpal tunnel and headache that was “most likely” secondary to her cervical
problem. He stated that he did not have a diagnosis at that point and recommended additional
diagnostic testing of the cervical and lumbosacral spines, and left hip and upper extremity.
In a January 29, 2009 report, Dr. Sood reviewed notes given to him by appellant, which
revealed diagnoses of chronic lumbosacral and left hip strain and left wrist and neck sprain. He
stated that the sprain was the reason for her symptoms for almost seven to eight years and
intermittent disability for work. Dr. Sood further stated that the diagnosed conditions were not
sufficient for him to make recommendations for appellant’s work and future treatment and
disability. He noted that x-rays of the cervical spine performed on the date of his examination
were consistent with mild cervical spondylosis. X-rays of the lumbosacral spine were normal.
Dr. Sood recommended additional diagnostic testing to establish a diagnosis for appellant’s
injuries, the cause of the diagnosis and her work capacity.
By decision dated May 1, 2009, an OWCP hearing representative affirmed the
September 22, 2008 termination decision. The hearing representative found that the medical

2

evidence subsequently submitted by appellant was not sufficient to overcome the weight
accorded to Dr. Rafiy’s medical report.
In a June 4, 2010 decision, OWCP reviewed the merits of appellant’s claim and denied
her April 26, 2010 request for modification of the termination.
By letter dated March 22, 2011, appellant requested reconsideration.
In an October 14, 2010 report, Dr. Sood listed a history of the December 3, 1998
employment injuries and appellant’s medical treatment. He advised that x-ray examinations of
the low back, hips and knee demonstrated no fracture or dislocation. Appellant had coccyalgia
of the left hip. X-rays of the cervical spine were consistent with moderate spondylosis and
altered C curve and showed moderate arthrosis. A 2009 magnetic resonance imaging scan was
consistent with positive tenderness in the midline posteriorly and paralumbar disc disease with
annular bulge foraminal stenosis at L3-L4. An electromyogram suggested L4 radiculopathy/
myelopathy secondary to the above findings. Dr. Sood advised that his objective findings
continued to show that appellant had decreased range of motion of the spine, guarded movement,
a painful gait, limited ability to squat, sit and bend and decreased internal rotation of the hip by
10 degrees. The left suprascapular and supraclavicular regions were positive for tenderness.
Dr. Sood opined that appellant’s original and present symptoms were secondary to the 1998
employment injuries. Appellant’s impairment was permanent and she could only perform
modified light-duty work with limitations. Dr. Sood addressed her treatment plan which
included rehabilitation, epidural injections for the lower back and appropriate bracing. There
was no plan to perform surgery. In an October 14, 2011 work capacity evaluation, Dr. Sood
reiterated appellant’s physical limitations for an eight-hour workday.
In an April 8, 2011 decision, OWCP denied appellant’s request for reconsideration,
finding that the medical evidence was insufficient to warrant further merit review of her claim.
It determined that Dr. Sood’s opinion that her unresolved pain resulting from the accepted
employment injury was cumulative and repetitious of his prior reports.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year

3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

3

of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
In the most recent merit decision dated June 4, 2010, OWCP denied modification of the
termination of appellant’s wage-loss compensation and medical benefits on the grounds that she
no longer had any residuals or disability causally related to her accepted December 3, 1998
employment-related injuries. On March 22, 2011 appellant requested reconsideration and
submitted medical evidence. In an April 8, 2011 decision, OWCP denied her request for
reconsideration without a merit review of her claim, finding that the medical evidence submitted
was cumulative and repetitive of evidence previously considered in its prior decisions and not
relevant.
Dr. Sood’s October 14, 2011 report listed objective test results which revealed coccyalgia
of the left hip, moderate spondylosis and altered C curve and moderate arthrosis of the cervical
spine, tenderness in the midline posteriorly and paralumbar disc disease with annular bulge
foraminal stenosis at L3-L4 and L4 radiculopathy/myelopathy. He advised that these findings
continued to show that appellant had decreased range of motion of the spine, guarded movement,
painful gait, limited ability to squat, sit and bend, decreased internal rotation of the hip by 10
degrees and tenderness in the left suprascapular and supraclavicular regions. Dr. Sood opined
that her symptoms were secondary to the December 3, 1998 employment injuries, that the
impairment was permanent and that she was only capable of performing modified light-duty
work with restrictions. Although this evidence reiterated his prior findings that appellant had
continuing lumbosacral, left hip and cervical problems, Dr. Sood offered a new opinion finding
that these problems were directly related to the accepted employment-related injuries. The
medical evidence provided medical rationale in support of his opinion addressing the relevant
issue of whether OWCP properly terminated appellant’s compensation on the grounds that she
no longer had any residuals causally related to her employment-related left knee and lumbosacral
conditions. The Board finds that Dr. Sood’s October 14, 2010 report constituted relevant and
pertinent new evidence not previously considered.6 Therefore, OWCP improperly refused to
reopen appellant’s case for further review of the merits.
To obtain merit review, appellant is not required to submit evidence sufficient to establish
her claim. She need only provide evidence that is relevant and pertinent new and not previously
considered by OWCP.7 Dr. Sood’s report meets these requirements. The case will, therefore, be
remanded for consideration of this physician’s report, together with the previously submitted
evidence of record and a decision on the merits of appellant’s claim.

5

Id. at § 10.607(a).

6

Id. at § 10.606(b)(2).

7

Billy B. Scoles, 57 ECAB 258 (2005).

4

CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s claim for further
review of the merits under 5 U.S.C. § 8128(a) in its April 8, 2011 decision.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2011 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: April 24, 2012
Washington, DC

Alec J. Koromilas, 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
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Independence, KY, Employer
__________________________________________

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

Docket No. 11-1720
Issued: February 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 15, 2011 appellant filed a timely appeal of a June 16, 2011 Office of Workers’
Compensation Programs’ (OWCP) decision denying continuation of pay. 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 established entitlement to continuation of pay.
FACTUAL HISTORY
On February 16, 2011 appellant, then a 43-year-old rural carrier filed a traumatic injury
claim (Form CA-1), which she completed on February 13, 2011, alleging that on January 14,
2011 she sustained a torn rotator cuff in her left shoulder. OWCP accepted her claim for left
shoulder supraspinatus sprain on March 14, 2011. By decision dated March 15, 2011, it denied
1

5 U.S.C. § 8101 et seq.

appellant’s claim for continuation of pay for the period January 15 to February 28, 2011 as she
did not file the Form CA-1 until February 16, 2011 more than 30 days after the January 14, 2011
employment injury. Appellant filed a claim for compensation requesting compensation for leave
without pay from March 1 through April 8, 2011. Her time analysis form indicated that she used
sick and annual leave from February 26 through March 4, 2011, sick leave from March 5
through 11, 2011 and from March 12 through 18, 2011. OWCP authorized compensation from
March 1, 2011. It entered appellant on the periodic rolls on March 19, 2011.
Appellant requested reconsideration of the denial of continuation of pay and asked to
receive continuation of pay from January 15 to February 28, 2011. She stated that she filed a
claim on January 25, 2011. Appellant submitted a notice of recurrence of disability (Form
CA-2a) dated January 25, 2011 which listed the date of recurrence as January 14, 2011 and
indicated that she first sought medical treatment on January 18, 2011. On this form, she stated
that on January 14, 2011 she picked up a package and felt a pop in her left shoulder. Appellant
went on to explain when she received medical treatment.
By decision dated June 16, 2011, OWCP reviewed the merits of appellant’s claim and
noted that she filed a Form CA-2a on January 25, 2011 and “clearly describe[d] a new injury at
work.” It stated that a new case was created based on this form. OWCP further noted that
appellant did not complete a Form CA-1 until February 13, 2011 more than 30 days from the
date of injury. It denied appellant’s claim for continuation of pay as she did not submit it “on the
required form.”
LEGAL PRECEDENT
Section 8118 of FECA2 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
her immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of injury must
be given as specified in section 8119. The latter section provides in part that notice of injury
shall be given in writing within 30 days after the injury.3
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). FECA authorizes continuation of pay for an employee who has filed a valid claim for
traumatic injury.4 Section 8118(a) makes continuation of pay contingent on the filing of a
written claim within 30 days of the injury. When an injured employee makes no written claim
for a period of wage loss within 30 days, he or she is not entitled to continuation of pay,
notwithstanding prompt notice of injury.5

2

Id. at §§ 8101-8193; § 8118.

3

Id. at § 8119(a)(c).

4

Id. at § 8118(a).

5

See W.W., 59 ECAB 533 (2008). See also P.R., Docket No. 08-2239 (issued June 2, 2009).

2

Continuation of pay requires the employing establishment to continue the employee’s
regular pay during any periods of disability, up to a maximum of 45 calendar days. This is paid
by the employing establishment, not OWCP. However, the ultimate decision as to whether
appellant is eligible for continuation of pay rests with OWCP.6
Continuation of pay is payable only for time lost from work due to an initial traumatic
injury. To be eligible for continuation of pay, an employee must: (1) have a traumatic injury
which is job related and the cause of the disability, and/or the cause of lost time due to the need
for medical examination and treatment; (2) file Form CA-1 within 30 days of the date of the
injury (but if that form is not available, using another form would not alone preclude receipt);
and (3) begin losing time from work due to the traumatic injury within 45 days of the injury.8
Whether a particular injury caused an employee disability from employment is a medical issue,
which must be resolved by competent medical evidence.9
7

The employee must provide a written report on a Form CA-1 to the employing
establishment within 30 days of the injury.10 OWCP’s procedure manual states that another
OWCP-approved form, such as CA-2, CA-2a or CA-7 forms, which contains words of claim, can
be used to satisfy timely filing requirements.11
ANALYSIS
Appellant filed a Form CA-2a on January 25, 2011 and from the face of that OWCPapproved form, OWCP determined that she was “clearly describ[ing] a new injury.” OWCP
opened a new claim for her based on this form and ultimately accepted her claim for a traumatic
injury on March 14, 2011. Appellant did not file a Form CA-1 until February 16, 2011.
However, the Board finds that OWCP improperly denied appellant’s request for
continuation of pay. In accordance with section 10.205 of OWCP’s regulations,12 appellant used
another form to file her claim and under that provision would not, on those grounds alone, be
precluded from receiving continuation of pay. OWCP’s procedure manual as noted above allows
for the use of another OWCP-approved form which contains words of claim. OWCP clearly
stated that the Form CA-2a that appellant submitted was sufficient to indicate that she was filing
a new injury and that a new claim file was opened based on this form. Appellant filed the
OWCP-approved Form CA-2a on January 25, 2011 within 30 days of her January 14, 2011 date
6

20 C.F.R. § 10.200.

7

Id. at § 10.205(a)(3). See also Carol A. Lyles, 57 ECAB 265 (2005).

8

Id. at 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

9

Carol A. Lyles, supra note 7.

10

20 C.F.R. § 10.210(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.7(a) (March 2004).
12

20 C.F.R. § 10.205(a)(2).

3

of injury. The Board finds that she has established that she filed an appropriate claim within 30
days which would entitle her to continuation of pay.13
On remand OWCP should calculate the continuation of pay to which appellant is entitled.
Following this and such further development as it deems necessary, OWCP shall then issue a
de novo decision.
CONCLUSION
The Board finds that appellant filed a claim form within 30 days entitling her to
consideration of continuation of pay.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: February 13, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

See Brodrick L. Harrell, 51 ECAB 697 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Falls, NY, Employer
_________________________________________

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

Docket No. 17-0714
Issued: August 10, 2018

Case Submitted on the Record

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

JURISDICTION
On February 9, 2017 appellant filed a timely appeal from a January 3, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her right lower extremity, warranting a schedule award.
FACTUAL HISTORY
On May 13, 2002 appellant, then 46-year-old rural letter carrier, filed a traumatic injury
claim alleging that on that date she sustained a sprained right ankle and pulled tendons while
sorting mail. She explained that she turned to the left and her left leg hit a mail tray, and caused
her right foot to go off balance. Appellant indicated that she lost her balance and fell to the floor,
while working. She did not initially stop work.
On June 12, 2003 OWCP accepted appellant’s claim for right ankle sprain and plantar
fascial fibromatosis. As she missed no time from work, it authorized appropriate medical
compensation benefits.
On February 2, 2015 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated March 27, 2015, OWCP advised appellant of the evidence
needed to establish her claim. It explained that additional medical evidence was required from her
physician, including an opinion as to whether maximum medical improvement (MMI) had been
reached and an impairment rating utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 No evidence was received.
On April 28, 2015 OWCP denied appellant’s claim for a schedule award, finding that she
failed to submit any medical evidence providing an impairment rating under the A.M.A., Guides.
In a letter dated May 11, 2015, appellant, through counsel, requested a telephonic hearing,
which was held before an OWCP hearing representative on December 10, 2015. During the
hearing, appellant was again advised that, in order to establish her claim for a schedule award, she
needed to obtain an impairment rating from her physician utilizing the A.M.A., Guides.
By decision dated February 9, 2016, OWCP’s hearing representative affirmed the April 28,
2015 decision. The hearing representative found that appellant had not submitted any medical
evidence establishing permanent impairment of a scheduled member or function of the body
causally related to the accepted employment injuries of May 13, 2002. As such, there was no basis
for consideration of a schedule award in the instant claim.
In a March 3, 2016 report, Dr. Stewart A. Kaufman, a Board-certified orthopedic surgeon,
noted appellant’s history of injury and treatment. He examined appellant and provided his
findings. They included that appellant had a normal gait, balance, and coordination. Her right
knee went from 0 to 140 degrees of flexion, and the flexion on the left was 0 to 135 degrees.
Dr. Kaufman found that regarding the ankles: dorsiflexion on the right and left was equal to 20
degrees; plantar flexion on the right was equal to 40 degrees and on the left was equal to 35 degrees;
3

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

2

eversion on the right was equal to 20 degrees and on the left was equal to 15 degrees; and inversion
on the right equated to 25 degrees and 30 degrees on the left. He found that appellant was able to
toe and heel walk and her plantar feet were nontender. Dr. Kaufman noted that there was no
thickening or lumps to suggest plantar fibromatosis. Regarding diagnostic testing, he found that
the hospital records from May 13, 2002 revealed small exostosis off the medial malleolus of the
right ankle and no pathology. Dr. Kaufman opined that appellant’s sprain of the right ankle had
resolved and that she reached MMI on March 3, 2016. He referenced Table 16-8 for clinical
studies adjustment4 and Table 16-2 for the foot and ankle regional grid,5 and determined that
appellant fell into a class 1 category. Dr. Kaufman explained that, according to Table 16-8,
imaging was normal giving her a 0 grade modifier, and a functional history modifier of 1. He
referenced Table 16-76 for physical examination modifier and found that appellant qualified for a
grade 1, modifier. Dr. Kaufman explained that the total was 2, and the average was 1 grade
modifier. He noted that appellant defaulted to one percent and moving one to the left brought her
again to one percent right lower extremity impairment. Dr. Kaufman opined that appellant had
one percent right lower extremity permanent impairment.
In a letter dated September 27, 2016, appellant, through counsel, requested reconsideration.
He noted that the report from Dr. Kaufman was new medical evidence.
By letter dated July 25, 2016, counsel provided additional medical evidence and requested
that OWCP provide the findings of its district medical adviser (DMA).
On December 8, 2016 OWCP provided the DMA with a copy of the record along with a
statement of accepted facts (SOAF) and requested that he provide an impairment rating.
In a December 29, 2016 report, the DMA opined that appellant did not have any permanent
impairment of her right lower extremity. He explained that she had accepted conditions of ankle
sprain and plantar fasciitis. The DMA noted that “the examination [of Dr. Kaufman]” did not
reveal any evidence of plantar fasciitis and there was no rating for this condition. Regarding
appellant’s right ankle, he indicated that she had a class 1 impairment. The DMA referred to Table
16-2,7 and noted that this equated to one percent lower extremity impairment. He made
adjustments for functional history and referenced Table 16-6,8 and determined that appellant had
a grade 0 modifier. The DMA made adjustments for physical examination using Table 16-79 and
determined that she had a grade 1 modifier. He made adjustments for clinical studies and utilized
Table 16-810 and found a grade 0 modifier. The DMA determined that appellant would have a net
4

Id. at 519.

5

Id. at 502.

6

Id. at 517.

7

Id. at 503.

8

Id. at 516.

9

Supra note 6.

10

Supra note 4.

3

modifier of -2, which was equal to a class 1 A impairment. He advised that, based upon Table 162,11 this would equal zero percent lower extremity impairment for the right ankle. Regarding
Dr. Kaufman’s rating, the DMA explained that he did not appropriately perform the impairment
rating according to the standards of the A.M.A., Guides. He explained that Dr. Kaufman averaged
the modifiers. The DMA opined that appellant reached MMI on March 3, 2016.
By decision dated January 3, 2017, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
The schedule award provisions of FECA12 and its implementing regulations13 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 to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.14 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.15
The sixth edition requires identifying the impairment Class of Diagnosis (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE), and Clinical Studies (GMCS).16 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).17
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that diagnosis-based impairment is the primary method of calculation for the lower limb
and that most impairments are based on the diagnosis-based impairment where impairment class
is determined by the diagnosis and specific criteria as adjusted by the grade modifiers for
functional history, physical examination, and clinical studies. It further provides that alternative
approaches are also provided for calculating impairment for peripheral nerve deficits, complex
11

Supra note 7.

12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

14
Id. See also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
15
Federal (FECA) Procedure Manual, id. at Chapter 2.808.5a (February 2013); and id. at Chapter 3.700, Exhibit 1
(January 2010).
16

A.M.A., Guides 494-531.

17

Id. at 521.

4

regional pain syndrome, amputation, and range of motion. Range of motion is primarily used as a
physical examination adjustment factor.18 The A.M.A., Guides, however, also explain that some
of the diagnosis-based impairment grids refer to the range of motion section when that is the most
appropriate mechanism for grading the impairment. This section is to be used as a stand-alone
rating when other grids refer to this section or no other diagnosis-based impairment sections of the
chapter are applicable for rating a condition.19
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.20
ANALYSIS
The Board finds that the evidence of record is insufficient to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award in
accordance with the sixth edition of the A.M.A., Guides.
OWCP accepted appellant’s claim for right ankle sprain and plantar fascial fibromatosis.
In a March 3, 2016 report, Dr. Kaufman noted appellant’s history of injury and treatment.
He examined her and provided his findings, which included that she had a normal gait, balance,
and coordination. Appellant’s right knee went from 0 to 140 degrees of flexion, and the flexion
on the left was 0 to 135 degrees. Dr. Kaufman also found that diagnostic testing from May 13,
2002 revealed a small exotosis of the medial malleolus of the right ankle and no pathology. He
provided range of motion findings for the right ankle. Dr. Kaufman opined that appellant’s sprain
of the right ankle had resolved and that she reached MMI on March 3, 2016. He referred to Table
16-2 for the foot and ankle regional grid,21 and determined that she fell into a class 1 category.
Regarding functional history, Dr. Kaufman referenced Table 16-622 and provided appellant with a
grade modifier of 1. The Board notes that this would include a mild problem and antalgic limp
with asymmetric shortened stance, corrects with footwear modifications and or orthotics.
However, Dr. Kaufman found that appellant had an essentially normal gait, and it is unclear why
he selected this grade modifier. Additionally, he referenced Table 16-723 for physical examination
adjustment and found that she qualified for a grade 1, modifier based on mild problem of minimal
palpatory findings consistently documented without observed abnormalities. Dr. Kaufman

18

Id. at 497, section 16.2.

19

Id. at 543; see also D.F., Docket No. 15-0664 (issued January 8, 2016).

20

Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.808.6(f) (February 2013).

21

Supra note 5.

22

Supra note 8.

23

Supra note 6.

5

referenced Table 16-8 for clinical studies adjustment24 and explained that, according to Table 168, imaging was normal giving appellant a 0 grade modifier. He explained that the total was 2, and
the average was 1 grade modifier. However, the Board notes that the net adjustment formula does
not include averaging the impairment classes.25 Therefore, Dr. Kaufman’s opinion that appellant
had one percent right lower extremity impairment is not properly explained. As he did not
adequately explain how he used the A.M.A., Guides to rate her right ankle impairment, his opinion
is of diminished probative value.26
In a December 29, 2016 report, the DMA determined that appellant did not have any
permanent impairment of the right lower extremity. He explained that appellant had accepted
conditions of ankle sprain and plantar fasciitis. The DMA noted that appellant’s examination did
not reveal any evidence of plantar fasciitis and there was no rating for this condition. Regarding
her right ankle, the DMA indicated that she had a class 1 impairment. He referred to Table 16-2,27
and noted that this equated to one percent lower extremity impairment. The DMA made
adjustments for functional history and referenced Table 16-6,28 and determined that appellant had
a grade 0 modifier as there was no gait derangement. He made adjustments for physical
examination and using Table 16-729 and determined that she had a grade 1 modifier. The Board
notes that this corresponds with Dr. Kaufman, who found that appellant had minimal palpatory
findings consistently documented without observed abnormalities. The DMA concurred with
Dr. Kaufman with regard to clinical studies and utilized Table 16-830 and found a grade 0 modifier
as there were no available clinical studies or relevant findings. He utilized the net adjustment
formula31 in determining that appellant would have a net modifier of -2, which was equal to a
class 1 A impairment. The DMA advised that, based upon Table 16-2,32 this would equal zero
percent lower extremity impairment for the right ankle. Regarding Dr. Kaufman’s rating, as noted
above, he explained that he did not appropriately perform the impairment rating according to the
standards of the A.M.A., Guides. The DMA’s explanation included that Dr. Kaufman averaged
the modifiers, which as noted was not a proper application of the net adjustment formula. He
opined that appellant reached MMI on March 3, 2016.
The Board finds that the DMA properly applied the A.M.A., Guides to rate appellant’s
right ankle permanent impairment based on the findings in Dr. Kaufman’s report. Appellant has
24

Supra note 4.

25

See supra note 15.

26

See J.G., Docket No. 09-1128 (issued December 7, 2009) (an attending physician’s report is of little probative
value where the A.M.A., Guides are not properly followed).
27

Supra note 7.

28

Supra note 8.

29

Supra note 6.

30

Supra note 4.

31

See supra note 15.

32

Id.

6

not submitted any current medical evidence in conformance with the A.M.A., Guides to support
permanent impairment. As such evidence has not been submitted, she has not met her burden of
proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of her right lower extremity, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2018
Washington, DC

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

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

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

7