United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, West Palm Beach, FL,
Employer
__________________________________________

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

Docket No. 20-0513
Issued: January 12, 2021

Case Submitted on the Record

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

JURISDICTION
On January 6, 2020 appellant filed a timely appeal from a December 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, it was asserted that oral argument should be granted because his condition
had not resolved and only worsened. The Board, in exercising its discretion, denies appellant’s request for oral
argument because the arguments on appeal can adequately be addressed in a decision based on a review of the case
record. Oral argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose.
As such, the oral argument request is denied and this decision is based on the case record as submitted to the Board.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective December 18, 2019, as he no longer had residuals or
disability causally related to his accepted February 8, 2012 employment injury.
FACTUAL HISTORY
On February 23, 2012 appellant, then a 59-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that he experienced lower back pain on February 8,
2012 when he lifted a bag while in the performance of duty. He stopped work on February 8, 2012
and has not returned. On February 15, 2012 appellant underwent an L4-S1 hemi-laminectomy
with L5 discectomy, interbody fusion, and instrumentation. OWCP accepted the claim for
displacement of lumbar intervertebral disc without myelopathy and postprocedural fever. It paid
appellant wage-loss compensation on the periodic rolls, effective August 26, 2012.
Appellant continued to receive medical treatment for his back. Medical records from a
pain management clinic, dated September 9, 2014 through September 12, 2019, noted that
appellant received treatment for low back pain related to a lumbar postlaminectomy syndrome
condition, lumbar degenerative disease, and lumbar radiculopathy with no change in his condition.
In May 15 and November 11, 2017 reports, Dr. David B. Lotman, a Board-certified
orthopedic surgeon serving as a second opinion examiner, noted limitations in lumbar range of
motion. He assigned permanent restrictions for full-time light-duty demand work.
OWCP subsequently referred appellant to Dr. Omar D. Hussamy, a Board-certified
orthopedic surgeon serving as a second opinion examiner. In a report dated December 19, 2018,
he indicated that the accepted conditions which were still active included pain, tenderness, and
decreased range of motion. Dr. Hussamy’s OWCP-5c form indicated that appellant was not at
maximum medical improvement and could not work.
On August 7, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF), the case record, and a set of questions to Dr. Jon D. Donshik, a Board-certified orthopedic
surgeon, for another second opinion evaluation regarding the status of his February 8, 2012
employment injury and work capacity.
In a September 6, 2019 report, Dr. Donshik noted his review of appellant’s medical history
and described the February 8, 2012 employment injury. He also reviewed recent diagnostic testing
of the pelvis, two views of the thoracic spine, and six views of the lumbar spine. Upon examination
Dr. Donshik observed that appellant ambulated without assistive devices and had difficulty heel
walking, toe walking, and could not tandem walk without losing his balance. Examination of the
cervical spine revealed full range of motion with no deformity, spasm, pain with range of motion,
or significant tenderness to palpation. Examination of the thoracolumbar spine revealed pain with
flexion, extension, and left and right lateral bending. Dr. Donshik indicated that appellant was
able to flex to his knees and had 15 degrees of thoracolumbar extension, 20 degrees of left and
right lateral bending, and diffuse tenderness to palpation throughout the thoracolumbar spine
without evidence of spams. The bilateral lower extremities revealed midline incisions

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corresponding to his total knee replacements with no evidence of sensory deficit or motor deficit.
Reflexes were absent at the patellas in the ankles with negative Babinski and negative clonus.
Dr. Donshik opined that the residuals of appellant’s accepted employment-related
conditions had ceased and he? was no longer disabled from work as a result of the accepted
employment-related conditions. He indicated that, while appellant continued to complain of
significant pain following his surgery, no neurologic deficit was found on physical examination.
Dr. Donshik noted that appellant had restricted range of motion and that the imaging studies
demonstrated postoperative changes, but nothing worrisome. He opined that the accepted
condition of lumbar disc displacement intervertebral without myelopathy no longer applied as the
disc was excised during the 2012 surgery. Dr. Donshik opined that the surgical procedure was
related to the employment incident and that no additional recovery would occur. He opined that,
from a physical standpoint, appellant should be able to return to his date-of-injury position, noting
that the only thing that prevented him from returning to work were his complaints of pain.
Dr. Donshik indicated that it was certainly possible that appellant had continued pain, as not every
patient benefits following their surgical procedure. He further opined that no additional care or
treatment was required. Dr. Donshik completed a work-capacity evaluation form (Form
OWCP-5c), which indicated that appellant could work his usual position on a full-time basis
without restrictions and that he was capable of performing up to heavy-duty demand strength
levels.
OWCP received September 13 and October 10, 2019 progress reports from Dr. Nathaniel
Drourr, Board-certified in pain medicine, who noted that appellant was followed for chronic low
back pain related to lumbar postlaminectomy syndrome, lumbar degenerative disease, and lumbar
radiculopathy. Dr. Drourr indicated that appellant’s pain started on February 8, 2012 while at
work and that he had a lumbar fusion at L5-S1. He indicated that appellant’s pain was exacerbated
while standing, sitting, bending, twisting, and changing positions from sitting to standing. A
functional assessment of the low back indicated a severe disability due to pain. Dr. Drourr
provided assessments of lumbar postlaminectomy syndrome, lumbar spondylosis, lumbar
degenerative disc disease, lumbar facet joint pain, low back pain, and other chronic pain. He
opined that appellant had legitimate, disabling chronic pain secondary to the diagnosed conditions
and which required opiate therapy as a medical necessity now and for the foreseeable future.
In an October 10, 2019 report, Dr. Tifani Gleeson, Board-certified in occupational
medicine, noted her review of appellant’s case record. She noted appellant’s employment injury
and the accepted conditions. Dr. Gleeson indicated that Dr. Donshik had performed a thorough
review, that he noted the only objective finding was restricted lumbar motion, and that appellant
could return to full duty. She opined that Dr. Donshik’s release to full duty was in variance to
prior independent examiners, which supported light demand work, and the treating provider, who
endorsed total disability. Dr. Gleeson recommended that an impartial medical examination be
conducted to settle the variance in permanent work capacity.
On October 28, 2019 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits because his February 8, 2012 employment injury had resolved with no
disabling residuals. It found that the weight of medical evidence rested with the September 6,
2019 report of Dr. Donshik, who found that appellant’s accepted conditions had resolved, with no
residuals or continuing disability from work. OWCP afforded appellant 30 days to submit
additional evidence or argument, in writing, if he disagreed with the proposed termination.
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In response, OWCP received a November 11, 2019 statement from appellant with attached
evidence previously of record.
In a November 7, 2019 progress report, Dr. Drourr continued to provide prior assessments
of lumbar postlaminectomy syndrome, lumbar spondylosis, lumbar degenerative disc disease,
lumbar facet joint pain, low back pain, and other chronic pain. He included a new assessment of
right leg swelling. Dr. Drourr continued to opine that appellant had legitimate, disabling chronic
pain secondary to his diagnoses, which required opioid therapy and anti-inflammatory medication.
By decision dated December 18, 2019, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective December 18, 2019. It found that the
weight of medical evidence rested with Dr. Donshik, OWCP’s second opinion examiner, who
concluded in a September 6, 2019 report that he had no residuals or disability due to his accepted
February 8, 2012 employment injury.
LEGAL PRECEDENT
According to FECA,3 once OWCP accepts a claim and pays compensation, it has the
burden of proof to justify termination or modification of an employee’s benefits.4 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no longer
related to the employment.5 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.7 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.8
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 18, 2019.
OWCP terminated appellant’s wage-loss compensation and medical benefits based on the
September 6, 2019 report of Dr. Donshik, an OWCP second opinion examiner, who reviewed
appellant’s history and noted that his claim was accepted for lumbar disc displacement
intervertebral without myelopathy. Upon examination of his lumbar spine, Dr. Donshik observed
appellant had restricted range of motion and that the imaging studies demonstrated postoperative
3

See supra note 1.

4

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

5

A.G., Docket No. 18-0749 (issued November 7, 2018); see I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
6

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

7

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

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changes, but nothing worrisome, and that there were no neurological deficits. He opined that the
accepted condition of lumbar disc displacement intervertebral without myelopathy was no longer
applicable as the disc was excised in the 2012 surgery. Dr. Donshik further opined that the surgical
procedure was related to the employment incident and indicated that no further recovery was
expected. He opined that, from a physical standpoint, appellant should be able to return to his
date-of-injury position, noting that the only thing that prevented him from returning to work were
his complaints of pain. Dr. Donshik opined that appellant was able to return to his date-of-injury
position without restrictions and that he could work up to a heavy demand level.
Although Dr. Donshik opined that the accepted condition of lumbar disc displacement
intervertebral without myelopathy was no longer applicable as the disc was excised in the 2012
surgery, he also indicated that appellant had restricted range of motion, the imaging studies
demonstrated postoperative changes, and he had continued complaints of pain with no neurological
deficits on physical examination as a consequence of his accepted injury.9 Considering the internal
inconsistencies in his report, Dr. Donshik failed to explain which objective findings of record
established that the accepted lumbar disc displacement intervertebral without myelopathy had
resolved. He merely noted that the disc was excised in 2012 and, while it was certainly possible
that appellant had continued pain, not every patient benefits following their surgical procedure.
Also, considering the fact that an OWCP second opinion examiner had previously opined in a
December 19, 2018 report that appellant still suffered from residuals of his accepted employment
injury, had not reached maximum medical improvement, and could not work,10 Dr. Donshik’s
conclusion that his accepted condition had resolved and that he could return to his date-of-injury
position without restrictions is conclusory at best.11 Therefore, the Board finds that Dr. Donshik’s
opinion is inconsistent with the other medical evidence of record and is conclusory in nature as it
does not contain sufficient medical reasoning to establish that appellant no longer had residuals or
disability due to his accepted February 8, 2012 employment injury.12
Due to the lack of probative value of Dr. Donshik’s report, the Board finds that OWCP
erred in relying on his opinion as the basis to terminate appellant’s wage-loss compensation and
medical benefits for the accepted conditions. The Board therefore finds that OWCP has not met
its burden of proof.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 18, 2019, as he no longer had
residuals or disability causally related to his accepted February 8, 2012 employment injury.

9

See L.D., Docket No. 19-0308 (issued July 24, 2019).

10

See supra note 5.

11

See J.W., Docket No. 19-1014 (issued October 24, 2019).

12
See J.W., id.; S.B., Docket No. 18-0700 (issued January 9, 2019); S.W., Docket No. 18-0005 (issued
May 24, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF THE NAVY, BANGOR
NAVAL BASE, Bremerton, WA, Employer
__________________________________________

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

Docket No. 08-2284
Issued: June 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 19, 2008 appellant filed a timely appeal of the June 18, 2008 merit decision of
the Office of Workers’ Compensation Programs denying his claim for wage-loss compensation
and a January 23, 2008 decision denying his claim for continuation of pay. The Board also has
jurisdiction over the July 30, 2008 nonmerit decision denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant is entitled to continuation of pay as he failed to
give written notice of injury within the time limitation specified by the Federal Employees’
Compensation Act; (2) whether appellant has established that his disability for the period
March 26 to April 12, 2007 was causally related to his accepted employment injury; and
(3) whether the Office properly refused to reopen his case for further review of the merits under
5 U.S.C. § 8128(a).

FACTUAL HISTORY
On June 5, 2007 appellant, then a 52-year-old instrument mechanic, filed a traumatic
injury claim alleging that on March 23, 2007 he injured his lower back while working on a sail.
The Office accepted the claim for temporary aggravation of lumbar radiculitis.
In an April 6, 2007 disability certificate, George N. Wise, a physician’s assistant, found
appellant disabled for four days and could return to work on April 10, 2007.
In a June 15, 2007 report, Dr. Farrell James, a chiropractor, noted that he saw appellant
on March 24, 2007 and diagnosed severe low back pain. He stated that appellant “was very
antalgic and had extreme difficulty standing, walking or changing position.” At the next visit on
April 6, 2007 appellant was given a disability slip.
In a January 23, 2008 decision, the Office found that appellant was not eligible for
continuation of pay because his claim was filed more than 30 days after the date of injury. It
stated that this decision did not affect his entitlement to compensation benefits.
On April 29, 2008 appellant filed a claim for wage-loss compensation for the period
March 26 to April 12, 2007. In an April 28, 2008 report, Dr. James noted that appellant
sustained a low back strain on March 23, 2007. He advised that appellant was excused from
work from March 23 to April 9, 2007 due to difficulty in walking, changing position or standing
and severe low back pain. Dr. James noted that appellant returned to work on March 27, 2007.
He stated that the time appellant took off was due to his inability to work as a result of his
employment injury.
In an April 6, 2007 emergency medical report, Mr. Wise reported treating appellant for
low back pain which was a result of his March 23, 2007 employment injury.
On April 30, 2008 the Office received an April 9, 2007 disability report signed by
Dr. David A. Duncan, an attending Board-certified family practitioner, who noted that appellant
was disabled for work at least until April 16, 2007 due to severe back pain.
In a letter dated May 8, 2008, the Office informed appellant that the record was
insufficient to support his claim for wage-loss compensation for the period March 26 to
April 12, 2007. Appellant was advised to submit additional medical evidence to support his
claim and given 30 days to provide the requested information. The Office also informed him
that physician’s assistants and chiropractors were not considered physicians under the Act.
By decision dated June 18, 2008, the Office denied appellant’s claim for wage-loss
compensation for the period March 26 to April 12, 2007. It found that he failed to submit
sufficient medical evidence to establish his disability for work.
On June 24, 2008 appellant requested reconsideration.
previously of record.

2

He resubmitted evidence

By decision dated July 30, 2008, the Office denied appellant’s request for reconsideration
on the grounds that his request neither raised substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
The Act1 and its implementing regulations provide for the continuation of pay in certain
circumstances.2 Specifically, section 8118(a) provides for 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
his immediate supervisor on a form approved by the Secretary of Labor within the time specified
in section 8122(a)(2) of the Act.3 Section 8122(a)(2) provides that written notice of injury shall
be given in writing within 30 days after the injury.4 Section 10.210(a) of the implementing
federal regulations provides in pertinent part:
“An employee, who sustains a traumatic injury which he or she considers
disabling, or someone authorized to act on his or her behalf, must take the
following actions to ensure continuing eligibility for continuation of pay. The
employee must: (a) [c]omplete and submit Form CA-1 to the employing
[establishment] as soon as possible, but no later than 30 days from the date the
traumatic injury occurred.”5
Therefore, to be entitled to continuation of pay, an employee must file a claim on an
appropriate form within 30 days after the injury.6
The Board has held that the responsibility for filing a claim rests with the injured
employee.7 The Board has also held that section 8122(d)(3) of the Act,8 which allows the Office
to excuse failure to comply with the time limitation provision for filing a claim for compensation
because of exceptional circumstances, is not applicable to section 8118(a),9 which sets forth the
filing requirements for continuation of pay.10 There is no provision in the Act for excusing an
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. §§ 10.205, 10.220.

3

5 U.S.C. § 8118(a); see also W.W., 59 ECAB ___ (Docket No. 08-477, issued May 22, 2008).

4

5 U.S.C. § 8122(a)(2); see also W.W., supra note 3.

5

20 C.F.R. § 10.210(a).

6

Laura L. Harrison, 52 ECAB 515 (2001); Sylvia P. Blackwell, 35 ECAB 811 (1984).

7

See Catherine Budd, 33 ECAB 1011 (1982) (continuation of pay denied where employee did not timely file her
claim because the employing establishment erroneously told her that her medical records and accident report were
sufficient).
8

5 U.S.C. § 8122(d)(3).

9

5 U.S.C. § 8118(a).

10

Michael R. Hrynchuk, 35 ECAB 1094 (1984).

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employee’s failure to file a claim for continuation of pay within 30 days of the employment
injury.11
ANALYSIS -- ISSUE 1
The record establishes that appellant sustained a traumatic injury on March 23, 2007.
Appellant filed a claim for continuation of pay injury on June 5, 2007, more than 30 days later.
Because he did not file his claim for continuation of pay within 30 days of the employment
injury, the Office properly denied his claim.12
Although appellant is barred from receiving continuation of pay, he may still be eligible
for compensation benefits under the Act. On January 23, 2008 the Office explained that the
decision denying his claim for continuation of pay did not affect his entitlement to wage-loss
compensation benefits. Therefore, appellant may still claim wage-loss for disability or for
medical treatment rendered due to the effects of the employment injury.
LEGAL PRECEDENT -- ISSUE 2
Under the Act, the term disability is defined as an inability, due to an employment injury,
to earn the wages the employee was receiving at the time of the injury, i.e., an impairment
resulting in loss of wage-earning capacity.13 For each period of disability claimed, the employee
has the burden of establishing that he or she was disabled for work as a result of the accepted
employment injury.14 Whether a particular injury causes an employee to become disabled for
work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.15 The fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.16
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.17

11

Robert E. Kimzey, 40 ECAB 762 (1989).

12

Loretta R. Celi, 51 ECAB 560 (2000).

13

See S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001).

14

Sandra D. Pruitt, 57 ECAB 126 (, 2005); Dennis J. Balogh, 52 ECAB 232 (2001).

15

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

16

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Manuel Garcia, 37 ECAB 767 (1986).

17

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

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ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for temporary aggravation of lumbar radiculitis.
Appellant requested compensation benefits for wage loss from March 26 to April 12, 2007. The
issue of whether he sustained disability due to the accepted condition is a medical question that
must be established by a physician, who on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning. 18
The medical evidence addressing appellant’s periods of disability consists of an April 9,
2007 disability report by Dr. Duncan, reports dated June 15, 2007 and April 28, 2008 from
Dr. James, a treating chiropractor, and an emergency room report and disability slip dated
April 6, 2007 by Mr. Wise, a physician’s assistant, who indicated that appellant was disabled for
four days and could return to work on April 10, 2007. However, a physician’s assistant is not a
physician as defined under the Act. Their opinions are of no probative value.19 Therefore,
Mr. Wises’ opinion has no probative value in establishing whether appellant was disabled for six
hours a day due to his accepted employment injury.
Dr. James diagnosed low back strain due to the March 23, 2007 employment injury and
opined that appellant was disabled from March 23 to April 9, 2007. In assessing the probative
value of chiropractic evidence, such as Dr. James’ reports, the initial question is whether the
chiropractor is a physician under section 8101(2) of the Act. A chiropractor is not considered a
physician under the Act unless it is established that there is a spinal subluxation as demonstrated
by x-ray to exist.20 As Dr. James did not diagnose a subluxation as demonstrated by x-ray, he is
not a physician, as defined, and his reports are of no probative medical value.
Dr. Duncan diagnosed appellant with severe back pain and indicated that he was totally
disabled until April 16, 2007. The Board notes that pain is a symptom, not a compensable
medical diagnosis and is insufficient to establish the causal relationship between appellant’s
disability and his accepted condition.21 Dr. Duncan provided no explanation as to how
appellant’s disability for work was causally related to his accepted March 23, 2007 employment
injury. Moreover, he did not mention the March 23, 2007 employment injury in the disability
note. The Board has held that medical reports not containing rationale on causal relation are of
diminished probative value.22 Dr. Duncan provided no supporting medical rationale to support
the period of claimed disability.
18

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

19

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Roy L. Humphrey, 57 ECAB 238 (2005);
5 U.S.C. § 8101(2) of the Act provides as follows: “physician includes surgeons, podiatrists, dentists, clinical
psychologist, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.”
20

Paul Foster, 56 ECAB 208 (2004); Cheryl L. Decavitch, 50 ECAB 397 (1999).

21

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

22

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

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For each period of disability claimed, the employee has the burden of establishing that he
or she was disabled for work as a result of the accepted employment injury.23 The issue of
whether a claimant’s disability is related to an accepted condition is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.24 The Board finds that there is no such
evidence in this case.
LEGAL PRECEDENT -- ISSUE 3
The Act25 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.26 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.27
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.28
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.29 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.30

23

Amelia S. Jefferson, supra note 17.

24

Sandra D. Pruitt, supra note 14.

25

5 U.S.C. §§ 8101 et seq.

26

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

27

20 C.F.R. § 10.605.

28

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

29

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

30

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

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ANALYSIS -- ISSUE 3
In support of his June 24, 2008 reconsideration request, appellant resubmitted the April 9,
2007 disability report of Dr. Duncan and the April 6, 2007 emergency room report from
Mr. Wise. These reports were of record and already considered by the Office. The resubmission
of this evidence did not require the Office to conduct further merit review of appellant’s claim.
The Board has held that repetitious evidence and argument does not require reopening of a claim
for further merit review.31
Appellant has not submitted any relevant and pertinent new evidence, advanced a legal
argument not previously considered by the Office, nor argued that the Office erroneously
interpreted a specific point of law. Thus, he has not met the criteria to have the Office reopen his
case for review on the merits.32
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for his March 23,
2007 employment injury as the claim therefore was untimely filed. The Board further finds that
he has not established disability from March 26 to April 12, 2007 due to the accepted March 23,
2007 employment injury. The Board also finds that the Office properly denied appellant’s
request for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

31

R.M., 59 ECAB ___ (Docket No. 08-734, issued September 5, 2008); M.E., 58 ECAB ___ (Docket No. 071189, issued September 20, 2007).
32

M.E., supra note 31 (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 30, June 18 and January 23, 2008 are affirmed.
Issued: June 11, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
CORPORATION FOR NATIONAL &
COMMUNITY SERVICE, AMERICORPS
VISTA ENROLLEES, HABITAT FOR
HUMANITY, Spokane, WA, Employer
__________________________________________

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

Docket No. 16-0568
Issued: September 15, 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 February 3, 2016 appellant filed a timely appeal from a November 25, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has met her burden of proof to establish lumbar and
bilateral shoulder injuries causally related to June 25, 2012 employment incidents.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant
facts and procedural history are set forth below.
On July 24, 2012 appellant, then a 50-year-old resource development specialist,2 filed a
claim for traumatic injury (Form CA-1) alleging that on June 25, 2012 she sustained lumbar and
bilateral shoulder injuries after moving tables, chairs, a tent, and other items at work. She did
not stop work at the time of her claim.
In support of her claim, appellant submitted a July 30, 2012 physical therapy prescription
from Dr. Pavel Conovalciuc, an attending Board-certified family practitioner. In a December 17,
2012 report, Dr. Conovalciuc noted the July 25, 2012 onset of lumbar and right hip pain without
spasm after moving furniture at work. He diagnosed lumbago. Appellant also provided reports
signed by a nurse practitioner, physician assistants, and physical therapists.
In a January 4, 2013 letter, OWCP advised appellant of the additional evidence needed to
establish her claim, including a report from her attending physician diagnosing an injury and
explaining how and why the identified work factors caused or contributed to that injury. It
afforded her 30 days to submit additional evidence. In response, appellant submitted physical
therapy notes dated from July 20, 2012 to January 3, 2013.
By decision dated February 8, 2013, OWCP denied appellant’s claim, finding that fact of
injury had not been established. It accepted that she was moving furniture and other items, as
alleged on June 25, 2012. However, OWCP found that appellant had not submitted sufficient
medical evidence in support of her claim to establish an injury. Appellant then appealed to the
Board.
By decision and order issued January 2, 2014,3 the Board affirmed OWCP’s February 8,
2013 decision, finding that appellant had not met her burden of proof to establish that she
sustained traumatic back and shoulder injuries in the performance of duty, as there was
insufficient medical evidence supporting causal relationship.
In a May 24, 2014 letter, appellant requested reconsideration. She asserted that OWCP
should accept her claim as the Social Security Administration (SSA) had approved her
application for disability benefits. Appellant also contended that the medical evidence of record
was sufficient to establish her claim. She submitted a November 5, 2013 report from
Dr. William M. Shanks, a Board-certified orthopedic surgeon, performing an evaluation for a
state benefits agency. Dr. Shanks related appellant’s account of “taking down tents” on June 25,
2012 and summarized her treatment history. On examination, he noted a left-sided limp,
tenderness to palpation of the lumbar spine, limited lumbar motion, possible weakness in the left
2

In a February 8, 2013 teleconference, OWCP verified that appellant was an employee of the employing
establishment at the time of the claimed June 25, 2012 incident.
3

Docket No. 13-1762 (issued January 2, 2014).

2

foot, tenderness to palpation of both knees, mild effusion of the left knee, and limited motion at
both ankles, greater on the left. Dr. Shanks obtained x-rays showing widespread lumbar
degenerative disc disease, facet joint arthritis in the lower lumbar spine, early degenerative
arthritis of both hips and bilateral narrowing of the medial joint space of both knees, greater on
the left. He diagnosed degenerative disc disease of the lumbar spine, early degenerative arthritis
of both hips and bilateral knee pain with medial joint space narrowing. Dr. Shanks found
appellant disabled from work and recommended referral to a spine surgeon.
Appellant also provided documents from a state benefits agency and SSA, her letters to
OWCP asking for clarification of her appeal rights, letters of recommendation from the
employing establishment, position descriptions and Office of Personnel Management (OPM)
documents regarding job classification, her resume, and college transcript.
By decision dated June 10, 2014, OWCP denied modification of the February 8, 2013
decision. It found the evidence submitted was insufficient to establish causal relationship
between any of the diagnosed conditions and the June 25, 2012 work incident. Appellant again
appealed to the Board.
By decision dated November 21, 2014,4 the Board affirmed OWCP’s June 10, 2014
decision, finding that appellant had failed to meet her burden of proof to establish traumatic back
and shoulder injuries in the performance of duty. The Board found that Dr. Shanks failed to
explain how moving furniture on June 25, 2012 at work on June 25, 2012 caused or aggravated
the claimed back and shoulder injuries.5
During the pendency of the prior appeal, appellant submitted a June 26, 2014 report from
Dr. Miguel A. Schmitz, an attending Board-certified orthopedic surgeon. Dr. Schmitz related
appellant’s account of “pain everywhere” which she attributed to “lifting/pulling/pushing tents”
at work on June 25, 2012. He diagnosed lumbar pain, bilateral knee pain, a left hip or thigh
strain, and lumbar spondylosis with myelopathy at L3-4. Dr. Schmitz explained that, although
he could not “make a connection between her presentation today” and the claimed injuries, “the
sequence of events that pertain to lumbar strain started when she was at work and likely consist
of lumbar strain.”
In July 3 and October 16, 2015 letters, appellant requested reconsideration, contending
that OWCP denied her access to medical care. She submitted copies of medical evidence
previously of record.6 Appellant also provided status inquiry correspondence from her elected
representatives, and her letters to OWCP requesting information about her claim.
4

Docket No. 14-1620 (issued November 21, 2014).

5

Under Docket No. 14-1620, appellant filed a petition for reconsideration which the Board denied on
April 9, 2015. Docket No. 14-1620, Order Denying Petition for Recon. (issued April 9, 2015).
6

On June 16 and 27, 2015 appellant filed occupational disease claims (Form CA-2) regarding the claimed
June 25, 2012 injuries. OWCP assigned the two occupational disease claims File Nos. xxxxxx168 and xxxxxx551.
In a July 14, 2015 letter, it advised appellant that it deleted File No. xxxxxx168 because it was a duplicate of File
No. xxxxxx420. In an August 5, 2015 letter, OWCP advised her that it deleted File No. xxxxxx551 because it was a
duplicate of File No. xxxxxx420, the current file.

3

By decision dated November 25, 2015, OWCP denied modification, finding that the
evidence remained insufficient to establish causal relationship. It accepted that, while in the
performance of duty on June 25, 2012, appellant moved chairs and took down tents. Also, the
medical evidence supported that appellant was diagnosed with several conditions. However,
OWCP found that appellant’s physicians had not provided sufficient medical reasoning
explaining how and why the accepted work incidents would have caused the diagnosed
conditions.
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.7 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.8
In order to determine whether an employee sustained a traumatic 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 that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he or she
actually experienced the employment incident that is alleged to have occurred.9 An employee
has not met his or her burden of proof in establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.10
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.11
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.12 To be of
probative value, a physician’s opinion must relate the condition to the accepted incident, must be
based on a complete and accurate factual history, and must contain adequate medical rationale in
support of the conclusions.13 The factors that comprise the evaluation of medical evidence
7

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

8

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

9

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

10

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

11

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

12

Solomon Polen, 51 ECAB 341 (2000).

13

Mary J. Ruddy, 49 ECAB 545 (1998).

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include the physician’s relative area of expertise, the opportunity for and thoroughness of
physical examination, the accuracy and completeness of the physician’s knowledge of the facts
and medical history, the care of analysis manifested in reaching his or her stated conclusions and
the medical rationale expressed in support of the physician’s opinion.14
ANALYSIS
Appellant claimed that on June 25, 2012 she sustained lumbar and bilateral shoulder
injuries after moving chairs and disassembling a party tent at work. OWCP accepted that these
events occurred at the time, place, and in the manner alleged. It denied the claim, however
finding that appellant had submitted insufficient medical evidence establishing a causal
relationship between the accepted work incidents and lumbar conditions diagnosed by her
attending physicians.
Dr. Schmitz, an attending Board-certified orthopedic surgeon, provided a June 26, 2014
report diagnosing lumbar pain, bilateral knee pain, a left hip or thigh strain, and lumbar
spondylosis with myelopathy at L3-4. He noted that appellant attributed her pain symptoms to
“lifting/pulling/pushing tents” at work on June 25, 2012. However, Dr. Schmitz noted that while
appellant “likely” sustained a lumbar strain, he could not “make a connection between her
presentation today” and the diagnosed injuries. As he explained that he could not support causal
relationship, his opinion cannot meet appellant’s burden of proof.
Appellant also provided correspondence from her elected representatives. The critical
issue in the claim is whether appellant established traumatic lumbar and shoulder injuries in the
performance of duty. This is a medical issue, which must be established by medical evidence.15
The status inquiry letters from appellant and her elected representatives are not medical
evidence. Therefore, they cannot meet appellant’s burden of proof.
Appellant also submitted copies of evidence previously of record. These reports were
given merit consideration by OWCP prior to the June 10, 2014 decision. The Board’s prior
determinations explain why the medical evidence of record failed to meet appellant’s burden of
proof. Absent further merit review by OWCP, this subject matter is res judicata16 and not
subject to further consideration by the Board.
On appeal, appellant argues that OWCP has accepted that she disassembled party tents on
June 25, 2012, and that the medical evidence supports her claim. As explained above, OWCP
did accept that appellant moved or disassembled a tent at work on June 25, 2012. However, as
also explained above, appellant’s physicians failed to provide sufficient medical reasoning to
meet her burden of proof to establish causal relationship. Her doctors did not explain how the
accepted activity caused or aggravated any medical condition.
Therefore, OWCP’s

14

Cecelia M. Corley, 56 ECAB 662 (2005).

15

Supra note 11.

16

See S.R., Docket No. 15-0927 (issued August 2, 2016); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

5

November 25, 2015 decision denying appellant’s claim is proper under the law and facts of the
case.
Appellant also argues that she should not be required to submit medical evidence due to
the circumstances of her injuries and her educational and professional qualifications. The Board
notes, however, that it is axiomatic that the employee must submit sufficient medical evidence to
meet her burden of proof that she sustained an injury as claimed.17 Appellant has not met her
burden of proof as she failed to submit sufficient medical evidence explaining how and why the
accepted work incident of disassembling tents and moving furniture on June 25, 2012 caused or
aggravated any medical condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish lumbar and
bilateral shoulder injuries causally related to June 25, 2012 employment incidents.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 25, 2015 is affirmed.
Issued: September 15, 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
17

Id.

6


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

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

Docket No. 07-740
Issued: June 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 17, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated December 22, 2006. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a nine percent permanent impairment to her
right upper extremity.
FACTUAL HISTORY
On January 14, 2005 appellant, a 51-year-old mail clerk, experienced severe pain in her
right shoulder while pulling mail tubs. She filed a claim for benefits, which the Office accepted
for tendinitis of the right shoulder and sprain/strain of the right rotator cuff. On March 30, 2006
appellant underwent arthroscopic surgery for subacromial decompression and rotator cuff repair
of the right shoulder.

On August 5, 2006 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her right shoulder.
By decision dated October 27, 2006, the Office denied appellant’s claim for a schedule
award. It found that she failed to submit medical evidence establishing that she sustained any
permanent impairment causally related to her accepted right shoulder condition.
On November 13, 2006 appellant requested reconsideration. In a November 2, 2006
report, Dr. Phillip Osborne found that appellant had a nine percent permanent impairment of the
right upper extremity pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (fifth edition) (A.M.A., Guides). He stated:
“[L]ooking at Figure 16-40, the flexion and extension of the shoulder shows that
she has flexion of 100 degrees which would give a five percent impairment.
Impairment extension is normal. Abduction is 90 degrees, so from Figure 16-43
you get a four percent impairment. Both internal and external rotation are at 80
degrees and this would be a zero percent impairment for each. Finally, the
impairments are added together since it is the same joint, which gives you nine
percent impairment for range of motion loss.
“Then we look at strength loss. The nerve that supplies would be the axillary
nerve. I would use a grade ratio of 25 percent giving her 9 percent deficit for
strength. I could not identify a sensory deficit, but you can combine strength and
range of motion loss. Therefore, I would combine the 9 percent range of motion
loss with the 9 percent for the strength loss for a 17 percent impairment of the
right upper extremity.”
In a report dated December 14, 2006, an Office medical adviser reviewed Dr. Osborne’s
findings regarding loss of range of motion in the right shoulder. He determined that appellant
had a nine percent impairment for loss of use of the right upper extremity pursuant to the
A.M.A., Guides. The Office medical adviser derived a five percent impairment based on loss of
flexion pursuant to Figure 16-40 at page 476 and a four percent impairment based on loss of
abduction pursuant to Figure 16-43 at page 477. He discounted Dr. Osborne’s nine percent
impairment based on strength loss. The Office medical adviser noted that, under the A.M.A.,
Guides, subsection 16.8a, page 508, decreased strength is not to be rated in the presence of
decreased motion.
On December 22, 2006 the Office granted appellant a schedule award for a nine percent
permanent impairment of the right upper extremity for the period November 2, 2006 to May 17,
2007, for a total of 28.08 weeks of compensation.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 sets forth
the number of weeks of compensation to be paid for permanent loss, or loss of use of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.2 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating
schedule losses.3
ANALYSIS
The Office medical adviser determined that appellant had a nine percent permanent
impairment of the right upper extremity by adopting Dr. Osborne’s findings regarding decreased
range of motion. The finding of nine percent impairment of the right upper extremity was based
on loss of range of motion pursuant to Figures 16-40 and 16-43. Figure 16-404 measures upper
extremity motion impairments due to lack of flexion and extension of the shoulder. Appellant’s
retained flexion of 100 degrees is rated as five percent impairment pursuant to this figure. Figure
16-435 measures upper extremity motion impairment due to lack of abduction and adduction of
the shoulder. Appellant’s retained abduction of 90 degrees represents a four percent impairment
pursuant to this figure. Therefore, she has a total of nine percent right upper extremity
impairment for loss of range of motion of the shoulder.
The Board notes that, under the protocols of Chapter 16 of the A.M.A., Guides, decreased
strength cannot be rated in the presence of decreased motion.6
There is no other probative medical evidence establishing that appellant has greater
permanent impairment. She has no more than a nine percent permanent impairment to her right
upper extremity.
CONCLUSION
The Board finds that appellant has no more than a nine percent impairment of the right
upper extremity.
1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

5 U.S.C. § 8107(c)(19).

3

20 C.F.R. § 10.404.

4

A.M.A., Guides 476.

5

Id. at 477.

6

See id. at 508, Figure 16.8a. Decreased Strength is not to be rated in the presence of decreased motion. See also
James R. Taylor, 56 ECAB ___ (Docket No. 05-135, issued May 13, 2005).

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ORDER
IT IS HEREBY ORDERED THAT the December 22, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 15, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 10-1066
Issued: February 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from a February 19, 2010 merit
decision of the Office of Workers’ Compensation Programs regarding a wage-earning capacity
determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether the Office properly determined that the selected position of contract
administrator properly represented appellant’s wage-earning capacity as of February 26, 2009.
On appeal, appellant asserts that the Office did not meet its burden of proof to reduce his
compensation, as the selected position was not medically suitable, that he remains totally
disabled for work and did not receive 90 days of job placement assistance. He also contends that
the Office improperly reduced his compensation before issuing a final decision, did not provide
salary information for the selected position and did not issue a cost-of-living (COLA) increase in
2009.

FACTUAL HISTORY
The Office accepted that on August 22, 2005, appellant, then a 34-year-old assistant chief
counsel, sustained herniated discs at L4-5 and L5-S1 and consequential erectile dysfunction
when he lifted a heavy box. It also accepted that on January 17, 2007 he sustained lumbar and
cervical spine strains, a lumbosacral sprain and aggravation of a displaced lumbar disc without
myelopathy when he fell over a crate of files and struck his neck.1 Appellant stopped work on
January 17, 2007 and did not return. He received compensation on the periodic rolls beginning
April 14, 2007.2
Appellant was treated by Dr. Hamid Rahman, an attending Board-certified orthopedic
surgeon, who submitted reports from January 17 to March 7, 2007 diagnosing an acute cervical
strain/sprain and aggravation of L4-5 and L5-S1 disc herniations. Dr. Rahman took appellant off
work and referred him to a pain management specialist for epidural injections.
On August 27, 2007 the Office obtained a second opinion from Dr. Bunsri T. Sophon, a
Board-certified orthopedic surgeon, who reviewed the medical record and statement of accepted
facts provided by the Office. On examination, Dr. Sophon found restricted lumbar motion, full
cervical motion, no paraspinal tenderness and negative straight leg raising tests bilaterally. He
diagnosed a lumbosacral sprain, herniated L5-S1 disc with stenosis and a resolved cervical
sprain. Dr. Sophon explained that although appellant needed an L5-S1 discectomy and fusion,
he had no neurologic impairments. Therefore, he could safely perform sedentary work while
awaiting surgery. Dr. Sophon found appellant able to work eight hours a day with lifting limited
to 10 pounds and a 15-minute break each hour.
In a September 13, 2007 letter, the Office afforded Dr. Rahman 30 days to review
Dr. Sophon’s report and address whether he concurred. Dr. Rahman did not respond. On
October 26, 2007 the Office advised appellant that Dr. Sophon would be accorded the weight of
the medical evidence.
Dr. Rahman submitted a December 5, 2007 report reiterating that appellant remained
totally disabled. He recommended an L4-5 discectomy and fusion. The Office approved
Dr. Rahman’s request for surgery.
As the medical evidence indicated that appellant was not totally disabled for work, the
Office referred him for vocational rehabilitation. Based on a review of appellant’s education and
work experience, a vocational rehabilitation counselor identified the positions of attorney (U.S.
Department of Labor’s, Dictionary of Occupational Titles # 110.107-010) and contract
administrator (DOT# 162.117-014) as employment goals. Both positions were classified as
sedentary. Labor market surveys showed available jobs in both occupations in appellant’s
commuting area.
1

The August 22, 2005 injury was originally accepted under a separate claim. On March 7, 2008 the Office
doubled the August 22, 2005 and January 17, 2007 claims under File No. xxxxxx072.
2

The record contains a January 17, 2008 decision finding a $3,064.72 overpayment of compensation and waiving
its recovery. This decision is not before the Board on the present appeal.

2

In a May 9, 2008 supplemental report, Dr. Sophon explained that by “15-minute break,”
he meant that appellant should be allowed to change positions every 15 minutes, not that he had
to stop work for 15 minutes each hour.
On June 4, 2008 the Office approved a 90-day job placement plan. Appellant signed the
plan on June 13, 2008. On June 27, 2008 he was arrested and incarcerated due to alleged
professional misconduct. Appellant was released to home detention on July 18, 2008 then
remanded to custody on August 18, 2008. The vocational counselor met with him at his home
during periods of home detention. The vocational counselor provided attorney and contract
administrator job contacts through October 6, 2008.
In an August 13, 2008 report, Dr. Rahman noted that appellant was still awaiting lumbar
surgery and remained disabled for work.
An October 2008 labor market survey showed that contract administrator positions were
available in appellant’s commuting area with average wages of $1,646.00 a week. The Office
closed the vocational rehabilitation effort on October 27, 2008. On October 30, 2008 an Office
medical adviser reviewed attorney and contract administrator position descriptions and opined
that appellant was medically able to perform either job.3
By notice dated January 27, 2009, the Office proposed to reduce appellant’s
compensation benefits based on his ability to earn $1,646.00 a week in the selected position of
contract administrator. It noted that the physical requirements of the position were within
Dr. Sophon’s restrictions and were approved by the Office medical adviser. A labor market
survey showed that positions were reasonably available in appellant’s commuting area. The
Office afforded him 30 days to submit additional evidence or argument. On January 29, 2009
appellant contended that he remained totally disabled, did not receive 90 days of placement
assistance and that such jobs were not available in his commuting area. He also contended that
the proposed reduction was in retaliation for his arrest.
By decision dated February 26, 2009, the Office reduced appellant’s compensation
effective that day under section 8106 and 8115 of the Federal Employees’ Compensation Act,
based on his ability to earn $1,646.00 a week in the selected position of contract administrator.4
It found that the position was medically suitable according to Dr. Sophon and an Office medical
adviser. The Office further found that appellant received 90 days of job placement assistance
and that the reduction in benefits was unrelated to his arrest.
In a March 2, 2009 letter, appellant requested a review of the written record. He
contended that the Office did not specify the dollar amount of his projected wages, there was a
typographical error in Dr. Sophon’s supplemental report, an Office medical adviser did not
approve the position, he did not receive 90 days of placement assistance, there were no available
3

The Office issued a f proposed reduction of compensation on November 12, 2008 based on projected earnings
of $2,041.00 a week as an attorney. It did not issue a decision finalizing this notice.
4

Using the formula set forth in Albert C. Shadrick, 5 ECAB 376 (1953), the Office calculated that appellant had a
28 percent loss of wage-earning capacity.

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contract administrator jobs and that Dr. Rahman’s opinion should be accorded the weight of the
medical evidence.
By decision dated and finalized July 13, 2009, the Office affirmed the February 26, 2009
decision reducing appellant’s compensation. It found that he could earn $1,646.00 a week, that
the typographical error did not diminish the value of Dr. Sophon’s report, that the Office medical
adviser approved the contract administrator position, that the vocational rehabilitation counselor
remained available to him throughout his incarceration, and that jobs were reasonably available
in his commuting area.
On September 7, 2009 appellant requested reconsideration. He asserted that the Office
reduced his compensation before issuing a final decision and did not grant him a COLA in
2009.5
By decision dated February 19, 2010, the Office denied modification of its prior decision.
It found that it did not prematurely reduce appellant’s compensation and that there was no COLA
adjustment authorized for fiscal 2009.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.6 Under section 8115 (a) of the Act7 wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent his or her wage-earning capacity, or if the employee has no actual earnings, his or her
wage-earning capacity is determined with due regards to the nature of the injury, the degree of
physical impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect wageearning capacity in his or her disabled condition.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the
5

By decision dated September 28, 2009, the Office suspended appellant’s compensation as he failed to return an
affidavit of earnings and employment (Form CA-1032). After appellant returned to completed form, the Office
reinstated compensation retroactively.
6

David W. Green, 43 ECAB 883 (1992).

7

5 U.S.C. §§ 8101-8193, 8115(a).

8

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

4

principles set forth in Albert C. Shadrick,9 will result in the percentage of the employee’s loss of
wage-earning capacity.10
ANALYSIS
Appellant received compensation for total disability beginning on April 14, 2007 due to
accepted lumbar and cervical spine strains, a lumbosacral strain and aggravation of a displaced
lumbar disc. Dr. Rahman, an attending Board-certified orthopedic surgeon, took him off work
based on his determination of total disability. The Office obtained a second opinion from
Dr. Sophon, a Board-certified orthopedic surgeon, finding appellant able to perform full-time
sedentary work as of August 27, 2007. He imposed restrictions against lifting more than 10
pounds and recommended changing positions every 15 minutes. The Office provided
Dr. Rahman an opportunity to comment on Dr. Sophon’s report, but he did not respond. The
Board finds that the weight of medical opinion is represented by Dr. Sophon and establishes that
appellant was no longer totally disabled for work.
The Office referred appellant for vocational rehabilitation services in March 2008. The
vocational rehabilitation counselor performed a skills inventory and selected the position of
contract administrator as representative of appellant’s wage-earning capacity. The contract
administrator position was classified as sedentary, with lifting up to 10 pounds. These physical
requirements are within the restrictions set forth by Dr. Sophon and affirmed by an Office
medical adviser. The vocational counselor found the job requirements commensurate with
appellant’s education and experience. The vocational counselor determined the prevailing wage
rate of contract administrator position and its availability in the open labor market. The
vocational counselor also conducted a 90-day placement program. On February 26, 2009 the
Office reduced appellant’s compensation based on his ability to earn $1,646.00 a week as a
contract administrator. Appellant requested reconsideration, contending that the Office failed to
issue a COLA adjustment and improperly reduced his compensation. By decision dated
February 19, 2010, the Office affirmed its February 26, 2009 decision reducing his
compensation.
The Board finds that the Office considered the proper factors, such as availability of
contract administrator positions and appellant’s physical limitations, in determining the position
properly represented his wage-earning capacity. Dr. Sophon and an Office medical adviser
found the contract administrator position medically suitable. The vocational rehabilitation
counselor found that jobs were reasonably available in appellant’s commuting area. Also, the
Office followed the established procedures under the Shadrick decision in calculating his
employment-related loss of wage-earning capacity. Appellant did not contend that the Office
erred in its mathematical calculations of his wage-earning capacity. The Board has reviewed
these calculations and finds them to be correct.
Appellant did not submit sufficient rationalized medical evidence indicating that he was
not capable of working eight hours a day as a contract administrator. The Board finds that the
9

5 ECAB 376 (1953).

10

James A. Birt, 51 ECAB 291 (2000); Francisco Bermudez, 51 ECAB 506 (2000).

5

Office properly found that he was medically and vocationally capable of working eight hours a
day as a contract administrator. Thus, the Office’s February 19, 2010 decision properly affirmed
the reduction of appellant’s compensation based on his ability to earn wages in the selected
position of contract administrator.
On appeal, appellant contends that the selected position was not suitable work as
Dr. Rahman found him totally disabled. Dr. Rahman was given the opportunity to address,
Dr. Sophon’s opinion that appellant could perform full-time sedentary work within specified
restrictions. He did not provide a response or sufficient medical rationale for keeping appellant
off work. Dr. Rahman stated that appellant was temporarily totally disabled without
explanation.11 Dr. Sophon explained that because the herniated lumbar discs caused no
neurologic deficits, appellant could safely perform sedentary duty. Dr. Rahman’s opinion is
insufficiently rationalized to create a conflict with Dr. Sophon. The Office properly accorded
Dr. Sophon’s opinion the weight of the medical evidence. Additionally, the Office obtained an
October 30, 2008 report from an Office medical adviser finding that the selected contract
administrator position was within appellant’s medical restrictions. The Board finds that the
medical record establishes that the selected position was suitable work.12
Appellant asserts that the Office did not provide salary information for the selected
position; but the record contains April and October 2008 labor market surveys showing that
contract administrators in his commuting area earned an average of $1,646.00 a week. His
contention in this regard is without merit.
Appellant argued that he did not receive 90 days of job placement assistance. However,
the vocational rehabilitation counselor provided placement services from June 4 to October 27,
2008, mailing his job contacts and meeting with him at his home. As the record demonstrates
that appellant received 90 days of placement assistance, his contention is not supported by the
record.
Appellant contends that the Office improperly reduced his compensation before issuing a
final decision. However, the Office did not reduce his compensation until February 26, 2009, the
date of the final decision. Appellant asserts that the Office failed to issue him a COLA in 2009.
As noted, the Office advised in its February 19, 2010 decision that there was no COLA
adjustment in 2009. Appellant has not established any failure by the Office to issue a COLA
increase in this case.
CONCLUSION
The Board finds that the selected position of contract administrator properly represented
appellant’s wage-earning capacity as of February 26, 2009.

11

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

12

N.J., 59 ECAB 171 (2007).

6

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Porthill, ID, Employer
__________________________________________

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

Docket No. 21-1336
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On September 4, 2021 appellant filed a timely appeal from March 16 and August 30, 2021
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On July 30, 2019 appellant, then a 54-year-old customs and border patrol officer, filed an
occupational disease claim (Form CA-2) alleging that he sustained Valley Fever
(coccidioidomycosis) causally related to factors of his federal employment while deployed to the
1

5 U.S.C. § 8101 et seq.

southern border. He noted that he first became aware of his claimed condition and its relation to
his federal employment on July 12, 2019. On July 12, 2019 Dr. Jonathan Klaucke, a Boardcertified orthopedic surgeon, performed left ankle surgery, later authorized by OWCP, which
included incision, drainage, and washing out of the left subtalar and tibiotalar joints. Appellant
stopped work on the date of the surgery and returned to work in late-July 2019 in a light-duty
position. Dr. Klaucke provided follow-up care until late-December 2019. After development of
the evidence, OWCP accepted appellant’s claim for Valley Fever and septic arthritis of the left
ankle.
On May 3, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to his accepted work-related conditions.
In a May 11, 2020 development letter, OWCP requested that appellant submit an
impairment rating report, which applied the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 It afforded
him 30 days to submit the requested evidence.
OWCP subsequently received a May 18, 2020 letter in which appellant requested that
OWCP send him for a second opinion examination and evaluation to assess his permanent
impairment.
On December 14, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for a second opinion examination and evaluation with Dr. Steven Nadler, a Boardcertified orthopedic surgeon. It requested that Dr. Nadler provide an opinion on the permanent
impairment of appellant’s left lower extremity under the standards of the sixth edition of the
A.M.A., Guides.
In a January 28, 2021 report, Dr. Nadler discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that appellant had a well-healed
scar on his left ankle and indicated that the septic arthritis would affect the left ankle joint and
leave patients with residual symptoms. Dr. Nadler opined that appellant reached maximum
medical improvement (MMI) on April 29, 2020 and indicated that he had ordered weight-bearing
x-rays of the ankles to determine if there was any loss of cartilage space. In a February 4, 2021
addendum report, he concluded that, based on his examination and review of x-ray testing,
appellant had no impairment of the left lower extremity due to his accepted left ankle conditions
under the sixth edition of the A.M.A., Guides. Dr. Nadler indicated that February 1, 2021 x-ray
testing of the right ankle revealed that the joint space was preserved and noted, “[b]ased on this
ﬁnding that the joint space is preserved and equal to that of the left, the patient is not entitled to an
impairment rating at this time as a result of his injury at work.”
On February 8, 2021 OWCP referred appellant’s case to Dr. David Krohn, a Boardcertified internist serving as an OWCP district medical adviser (DMA). It requested that Dr. Krohn

2

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

2

review the evidence of record, including Dr. Nadler’s reports, and provide an opinion on left lower
extremity permanent impairment under the standards of the sixth edition of the A.M.A., Guides.
In a March 11, 2021 report, Dr. Krohn indicated his agreement with Dr. Nadler that
appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides. He
explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only be
assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He noted that weight-bearing
x-rays of the ankles ordered by Dr. Nadler on February 1, 2021 demonstrated that the articular
surfaces were smooth with normal cartilage intervals of the tibiotalar and subtalar joints.
Dr. Krohn opined that, therefore, appellant had preserved joint spaces without radiographic
evidence of arthritis. There was no narrowing of the cartilage interval on the left compared with
the right. Dr. Krohn indicated that, given that the radiologist’s interpretation of the left ankle
x-rays demonstrated normal appearing ankle joints symmetrically, “impairment for arthritis of the
subtalar and tibiotalar joints each is Class 0, correlating with zero percent impairment of the left
lower extremity” under Table 16-2 of the sixth edition of the A.M.A., Guides.
By decision dated March 16, 2021, OWCP denied appellant’s schedule award claim,
finding that the weight of the medical opinion evidence regarding left lower extremity permanent
impairment rested with the opinions of Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the
DMA.
On March 23, 2021 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings Review. During the hearing held on July 7, 2021, he testified that
he still experienced pain in his left ankle.
By decision dated August 30, 2021, OWCP’s hearing representative affirmed the
March 16, 2021 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations 4 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 b e 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 and the Board has

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

concurred in such adoption.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 6
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the ankle, the relevant portion of the leg for the present case, reference
is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501. 7 After the class of
diagnosis (CDX) is determined from Table 16-1 (including identification of a default grade value),
the net adjustment formula is applied utilizing modifiers for functional history, physical
examination, and clinical studies.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a January 28, 2021 report, OWCP’s referral physician, Dr. Nadler, discussed appellant’s
factual and medical history and reported the findings of his physical examination. He noted that
appellant had a well-healed scar on his left ankle and opined that he reached MMI on
April 29, 2020. Dr. Nadler ordered weight-bearing x-rays of the ankles to determine if there was
any loss of cartilage space. In a February 4, 2021 addendum report, he concluded that, based on
his examination and review of x-ray testing, appellant had no permanent impairment of the left
lower extremity due to his accepted left ankle conditions under the six th edition of the A.M.A.,
Guides. Dr. Nadler indicated that February 1, 2021 x-ray testing of the right ankle revealed that
the joint space was preserved and noted, “[b]ased on this ﬁnding that the joint space is preserved
and equal to that of the left, the patient is not entitled to an impairment rating at this time as a result
of his injury at work.”
In his March 11, 2021 report, DMA Dr. Krohn indicated his agreement with Dr. Nadler
that appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides.
He explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only
be assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He indicated that, given that
the radiologist’s interpretation of the left ankle x-rays demonstrated normal appearing ankle joints

5

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
7

See A.M.A., Guides 501-08 (6 th ed. 2009).

8

Id. at 515-22.

4

symmetrically, “impairment for arthritis of the subtalar and tibiotalar joints each is Class 0,
correlating with 0 [percent] impairment of the left lower extremity” under Table 16-2.
Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the DMA properly applied the
A.M.A., Guides in finding that appellant had no permanent impairment of a scheduled member or
function of the body.9 As their reports were detailed, well rationalized, and based on a proper
factual background and application of the sixth edition of the A.M.A., Guides, their opinions
represent the weight of the medical evidence. 10
As there is no other current medical evidence in conformance with the sixth edition of the
A.M.A., Guides establishing permanent impairment of a scheduled member or function of the
body, the Board finds that appellant has met not his 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 permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

9

See B.B., Docket No. 20-1187 (issued November 18, 2021); M.D., Docket No. 20-0007 (issued May 13, 2020);
M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket
No. 18-1387 (issued February 1, 2019).
10

See B.B., id., D.S., Docket No. 18-1816 (issued June 20, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 16 and August 30, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, STEWARD STATION
POST OFFICE, Richmond, VA, Employer
__________________________________________

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

Docket No. 18-0021
Issued: March 22, 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 October 2, 2017 appellant filed a timely appeal from a September 21, 2017 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 consider the merits of the case.
ISSUE
The issue is whether appellant has established a right foot sprain causally related to the
accepted April 14, 2017 employment incident.
FACTUAL HISTORY
On April 27, 2017 appellant, then a 25-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on April 14, 2017, she noticed a sharp pain in the bottom of her
right foot as she descended a flight of stairs while in the performance of duty. She provided an
April 14, 2017 narrative statement again claiming on that date that she ascended 14 steps to
1

5 U.S.C. § 8101 et seq.

deliver mail and, when descending the 14 steps, she noticed a very sharp pain in the center
bottom of her right foot with each stride.2 Appellant stopped work on April 17, 2017.
In support of her claim, appellant submitted notes dated April 14, 2017 from Dr. Anthony
Martinez, a Board-certified family practitioner, who diagnosed metatarsalgia, right foot, and
indicated that appellant was totally disabled.
In a report dated April 14, 2017, Dr. Martinez found that appellant recounted right foot
pain which occurred at work while she was walking. He noted that she “may have heard a pop.”
On physical examination Dr. Martinez found diffuse tenderness and swelling. He diagnosed
metatarsalgia, right foot and provided work restrictions through April 21, 2017. On April 21,
2017 Dr. Martinez noted that appellant developed foot pain at work after feeling a pop. He
repeated his diagnosis and recommended continuing light-duty work.
In a development letter dated May 10, 2017, OWCP requested additional factual and
medical evidence in support of appellant’s traumatic injury claim. It afforded her 30 days to
respond.
Appellant provided a note dated May 17, 2017 from Dr. Andrew Kolb, an osteopath,
which indicated that appellant was seeking treatment for a work injury after experiencing
significant intermittent right foot pain. Dr. Kolb diagnosed metatarsalgia, right foot. He
completed an attending physician’s report (Form CA-20) on June 4, 2017 and repeated his
diagnosis.
On May 26, 2017 Dr. William K. Fleming, an orthopedic surgeon, completed a duty
status report (Form CA-17) noting appellant’s history of walking down a flight of stairs and
injuring the bottom of her right foot. He diagnosed right foot pain and provided work
restrictions. On May 31, 2017 Dr. Fleming completed a Form CA-20 indicating that appellant
was walking at work when she heard a pop in her right foot on April 14, 2017. He again
diagnosed right foot pain and provided work restrictions.
By decision dated June 14, 2017, OWCP accepted that the April 14, 2017 incident
occurred as alleged, but denied the claim as appellant failed to provide evidence containing a
medical diagnosis in connection with the April 14, 2017 employment incident. It noted that the
diagnosis of pain was not compensable under FECA.
On June 26, 2017 appellant requested reconsideration. On June 21, 2017 Dr. Fleming
again completed a Form CA-20 and noted that appellant was walking at work when she heard a
pop in her foot on April 14, 2017. He diagnosed sprain of the right foot. Dr. Fleming indicated
by checking the box marked “yes” that he believed that appellant’s condition was caused or
aggravated by employment activity. He added, “Patient sprained her foot while walking at work
delivering mail.” Dr. Fleming also completed a narrative note on June 21, 2017 and diagnosed
right foot pain due to a sprain of the foot. He again noted that the pain in her foot was caused by
a sprain which was causally related to her initial injury.

2
The record indicates that appellant had previously filed four other traumatic injury claims from June 8, 2015
through December 14, 2016.

2

By decision dated September 21, 2017, OWCP modified its June 14, 2017 decision to
reflect that appellant had provided medical evidence diagnosing right foot sprain. However,
OWCP found that Dr. Fleming’s explanation of causal relationship between appellant’s accepted
employment incident and his diagnosis was insufficient to support appellant’s claim. OWCP
noted that the mere fact that the claimed injury occurred as she was walking while delivering
mail was insufficient to establish that the diagnosed foot sprain was a work-related injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 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.6 The second component is whether the employment incident
caused a personal injury.7 An employee may establish that an injury occurred in the performance
of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the injury.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical opinion 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

3

Supra note 1.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

5

20 C.F.R. § 10.5(ee).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

Id.; M.P., Docket No. 17-1221 (issued August 21, 2017).

8

Shirley A. Temple, 48 ECAB 404, 407 (1997); M.P., id.

9

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

3

identified by the employee.10 Neither the mere fact that a disease or condition manifests itself
during a period of employment nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her right
foot sprain was causally related to the accepted April 14, 2017 employment incident.
Appellant filed a traumatic injury claim on April 27, 2017 alleging that on April 14, 2017
she injured her right foot descending stairs while performing her federal employment duties.
OWCP accepted that the April 14, 2017 incident occurred as alleged, but denied appellant’s
claim as she had not submitted rationalized medical opinion evidence sufficient to establish
causal relationship between her diagnosed medical condition and the April 14, 2017 incident.
Appellant initially submitted medical evidence from Drs. Kalb and Martinez relating
diagnoses of right foot pain and metatarsalgia, right foot. The Board has held that a symptom is
not a diagnosis and the mere diagnosis of “pain” does not constitute the basis for payment of
compensation.12 This medical evidence from Drs. Kalb and Martinez therefore lacks probative
value and is insufficient to establish appellant’s traumatic injury claim.
Medical evidence submitted to support a claim for compensation should reflect a correct
history of injury and should offer a medically-sound explanation of how the employment
incident caused or aggravated the diagnosed condition.13 Appellant did not submit the necessary
medical evidence to meet her burden of proof.
Beginning with his June 21, 2017 reports, Dr. Fleming clarified his diagnoses as right
foot sprain, an acceptable diagnosis under FECA. He also provided a history of injury noting
that appellant was walking at work when she heard a pop in her foot on April 14, 2017. The
Board notes that this history of injury differs from appellant’s claim that she experienced a sharp
pain in her foot while descending stairs. Dr. Fleming’s inconsistent history of injury limits the
probative value of his opinion.14 He indicated by checking the box marked “yes” that he
believed that appellant’s condition was caused or aggravated by employment activity. The Board
has held that an opinion on causal relationship which consists only of a physician checking a box
marked “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.15 Dr. Fleming failed
10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

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

12

Robert Broome, 55 ECAB 339 (2004); see also L.L., Docket No. 17-1764 (issued December 28, 2017).

13
S.H., Docket No. 17-1447 (issued January 11, 2018); D.D., Docket No. 13-1517 (issued April 14, 2014);
Michael S. Mina, 57 ECAB 379 (2006).
14

See S.L., Docket No. 16-0222 (issued August1, 2016).

15

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

4

to sufficiently explain how appellant’s diagnosed right foot sprain occurred, noting only that she
sprained her foot while walking at work delivering mail. Medical evidence that offers a
conclusion, but does not provide any rationalized medical explanation regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.16 While
Dr. Fleming provided a medical diagnosis of right foot sprain, he did not, however, provide any
rationalized explanation as to how physiologically the accepted incident would have caused
appellant’s diagnosed conditions.17
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.18 Appellant’s honest belief that the April 14, 2017
employment incident caused a right foot injury, however sincerely held, does not constitute
medical evidence sufficient to establish causal relationship.19 As she has failed to provide a
rationalized medical opinion sufficient to establish causal relationship between her claimed
injury and the accepted April 14, 2017 employment incident, she has failed to meet her burden of
proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that her right foot sprain was causally
related to the accepted April 14, 2017 employment incident.

16

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

17

See S.H., supra note 13; E.R., Docket No. 16-1634 (issued May 25, 2017).

18

See S.H., supra note 13; D.D., 57 ECAB 734 (2006).

19

See S.H., supra note 13; H.H., Docket No. 16-0897 (issued September 21, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 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

6