United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Gardena, CA, Employer
__________________________________________

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

Docket No. 07-859
Issued: November 5, 2007

Case Submitted on the Record

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

JURISDICTION
On February 7, 2007 appellant filed a timely appeal from the November 3, 2006 merit
decision of the Office of Workers’ Compensation Programs, finding an additional one percent
impairment of the right upper extremity, for a total of five percent impairment. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule
award case.
ISSUE
The issue is whether appellant has more than five percent impairment of the right upper
extremity.
FACTUAL HISTORY
On December 17, 2003 appellant, then a 36-year-old part-time flexible letter carrier, filed
a traumatic injury claim alleging a dog attack on December 16, 2003. He was bitten on his upper
right arm and left ring finger. Appellant stopped work and returned with restrictions on
May 10, 2004. The Office accepted the claim for partial amputation of the left fourth finger and

right upper extremity marcerated triceps with multiple deep and superficial lacerations. It paid
appropriate compensation.
On March 6, 2006 Dr. Jin Xiao, Board-certified in occupational medicine, diagnosed a pit
bull attack to left ring finger and right upper arm, status post right upper arm skin graft, right
wrist pain, resolved right shoulder adhesive capsulitis and status post left ring finger amputation
at the distal interphalangeal (DIP) joint. He rated appellant’s impairment, as follows:
“Partial amputation to [DIP] joint of the left right finger: Based on Figure 16-5,
page 443 of the guide, the amputation is 40 percent digit impairment
corresponding to 4 percent of hand impairment ([T]able 15-1,1 page 438) and 4
percent impairment of the upper extremity ([T]able 15-2,2 page 439).
“Scars to the right upper arm: Based on criteria stated in page 176 and [T]able
8-2, page 178 of the guide, the condition is Class I corresponding to
approximately 1 percent of impairment of the whole person (there is difference in
impairment rating as compared with findings on January 13, 2005 because the
size and depth of the scar were reduced by plastic surgery in April 2005).
“Partial loss of triceps muscle in the right arm: Based on the criteria stated in
[T]able 15-11,3 page 484 and [T]able 15-15,4 page 492 of the guide, his condition
is Grade 4 corresponding to 4.5 percent impairment of the upper extremity
(10 percent motor deficit times maximum 45 percent impairment due to combined
motor and sensory deficit).
“The total impairment calculated using the [C]ombined [V]alue [C]hart on page
604: 6 percent impairment of the whole person (4 percent and 4.5 percent
impairment of upper extremity is converted to 9.5 percent upper extremity
impairment, which is then combined with 1 percent impairment of the whole
person due to scar).”
In a report dated April 25, 2006, an Office medical adviser reviewed Dr. Xiao’s March 6,
2006 report and concluded that appellant had a four percent impairment to the right upper
extremity. She utilized Tables 16-10 and 16-11 to determine appellant had a Grade 4 or
10 percent sensory deficit and used Table 16-15 to determine he had 45 percent impairment due
to the radial nerve. The Office medical adviser then multiplied 10 percent by 45 percent to find a
5 percent impairment.5
1

This appears to be a typographical error as the physician noted the correct page number for Table 16-1.

2

This appears to be a typographical error as the physician noted the correct page number for Table 16-2.

3

This appears to be a typographical error as the physician noted the correct page number for Table 16-11.

4

This appears to be a typographical error as the physician noted the correct page number for Table 16-15.

5

The Office medical adviser determined that appellant was actually entitled to 4.5 percent for the right upper
extremity but rounded it up to 5 percent.

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By decision dated June 7, 2006, the Office granted appellant a schedule award for a four
percent impairment of the right upper extremity. The award covered a period of 24.96 weeks
from March 2 to August 23, 2006.
On July 6, 2006 appellant requested a telephonic hearing before an Office hearing
representative, which took place on October 12, 2006.
In a decision dated October 12, 2006, the Office hearing representative set aside the
June 7, 2006 decision and remanded the case for further development.
In an October 30, 2006 report, the Office medical adviser reported that appellant had five
percent impairment of the right upper extremity. She again referred to Tables 16-10 and 16-11
to determine that appellant had a Grade 4 or 10 percent sensory deficit and used Table 16-15 to
determine that he had 45 percent impairment due to the radial nerve. The medical adviser then
multiplied 10 percent by 45 percent to find 5 percent impairment.
By decision dated November 3, 2006, the Office granted appellant a schedule award for
an additional one percent impairment of the right arm, for a total of five percent impairment of
the right upper extremity based on the medical adviser’s opinion. The award covered a period of
3.12 weeks from August 24 to September 14, 2006.6
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing federal regulations,8 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) as the uniform standard applicable to all claimants.9
Effective February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule
awards.10
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.11 The Act identifies members such as the arm, leg,
6

There is no evidence following the October 12, 2006 hearing representative’s decision, that the Office issued a
final decision on a schedule award for the left upper extremity. As the Office has not issued a final decision on a
schedule award for the left upper extremity, it is not before the Board on this appeal. See 20 C.F.R. § 501.2(c).
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Id. at § 10.404(a); see Thomas P. Lavin, 57 ECAB ___ (Docket No. 05-1229, issued February 3, 2006);
Jesse Mendoza, 54 ECAB 802 (2003).
11

George E. Williams, 44 ECAB 530 (1993); William Edwin Muir, 27 ECAB 579 (1976).

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hand, foot, thumb and finger; functions such as loss of hearing and loss of vision; and organs to
include the eye. Section 8107(c)(22) of the Act provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor.12 The Secretary of Labor has made such a determination, and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus and tongue to the schedule.13
ANALYSIS
The Office accepted the claim for partial amputation of the left fourth finger and right
upper extremity, marcerated triceps with multiple deep and superficial lacerations as a result of
the dog bite on December 16, 2005.
In a March 6, 2006 report, Dr. Xiao utilized Table 8-2 to conclude that appellant had a
one percent whole person impairment due to scarring of the right upper arm. To rate the
impairment of appellant’s right upper extremity, he utilized the tables located on pages 484 and
492 to determine that appellant had a Grade 4, 10 percent, sensory deficit and a 45 percent
impairment due to combined motor and sensory loss. Dr. Xiao then multiplied 10 percent by
45 percent to find a 4.5 percent impairment of the right upper extremity.
In an October 30, 2006 report, the Office medical adviser found a four percent
impairment of the right upper extremity. She utilized Tables 16-10 and 16-11 to determine that
appellant had a Grade 4 or 10 percent sensory deficit and used Table 16-15 to determine that he
had 45 percent impairment of the radial nerve. The medical adviser then multiplied 10 percent
by 45 percent to find a 5 percent impairment.
The Board finds that Dr. Xiao and the Office medical adviser properly applied the
applicable standards of the A.M.A., Guides to determine that appellant had a five percent
impairment of the right upper extremity. Both Dr. Xiao and the Office medical adviser
calculated appellant’s impairment rating using the same method and arrived at the same
impairment rating for the right upper extremity. The Board will affirm this award. There is no
other probative medical evidence of record establishing that he sustained any greater impairment.
The Board notes that Dr. Xiao also found scarring of the right upper arm. The Board
notes that the evidence of record is insufficient to establish that appellant is entitled to a schedule
award for disfigurement or scarring to his right arm in accordance with the fifth edition of the
A.M.A., Guides. No schedule award is payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations.14 If there is permanent disability
involving the loss or loss of use, of a member or function of the body so specified or involving
disfigurement, the employee is entitled to basic compensation for the disability.15 The Board
12

5 U.S.C. § 8107(c)(22).

13

20 C.F.R. § 10.404; Henry B. Floyd, III, 52 ECAB 220 (2001).

14

George E. Williams, supra note 11; William Edwin Muir, supra note 11.

15

5 U.S.C. § 8107(a).

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notes that section 8107(c)(21)of the Act provides that compensation shall be awarded for serious
disfigurement of the face, head or neck of a character likely to handicap an individual in securing
or maintaining employment, not to exceed $3,500.00, in addition to any other compensation
payable under the schedule.16
Appellant’s claim was accepted for partial amputation of the left fourth finger and right
upper extremity marcerated triceps with multiple deep and superficial lacerations as a result of
the dog bite on December 16, 2005. Dr. Xiao, opined that appellant had whole person
impairment due to scarring on his right arm.17 He generally referenced a provision in the
A.M.A., Guides for rating skin disorders.18 However, disfigurement of the skin, except for
disfigurement covered under 5 U.S.C. § 8107(c)(21), is not ratable a impairment. The Board has
held that permanent impairment for loss or loss of use, of the skin is not covered under the
schedule award provisions of the Act.19 Dr. Xiao did not otherwise explain how appellant has
greater impairment under the A.M.A., Guides.
As noted above, the Office evaluates schedule award claims pursuant to the standards set
forth in the A.M.A., Guides. Appellant has the burden of proof to submit medical evidence
supporting that he has impairment of a schedule member of the body.20 As such evidence has
not been submitted, he has not established entitlement to a schedule award for scarring of
disfigurement to his right arm.
CONCLUSION
The Board finds that appellant has no more than five percent impairment of the right
upper extremity.

16

5 U.S.C. § 8107(c)(21).

17

The Board also notes, that while the A.M.A., Guides, provides for impairment to the individual member and to
the whole person, the Act does not provide for permanent impairment for the whole person. N.M., 58 ECAB ___
(Docket No. 06-2054, issued January 12, 2007); Janae J. Triplette, 54 ECAB 792 (2003).
18

A.M.A., Guides, Table 8-2 at 178 (5th ed. 2001). Table 8-2 appears in the chapter eight, entitled “The Skin.”

19

Ann L. Tague, 49 ECAB 453 (1998).

20

See Annette M. Dent, 44 ECAB 403 (1993).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 3, 2006 is affirmed.
Issued: November 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
PITTSBURGH HCS-UNIVERSITY,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Joseph J. Chester, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2248
Issued: April 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 4, 2007 appellant filed a timely appeal from a June 25, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her claim for compensation.
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 met her burden of proof to establish that her right arm or
shoulder condition was sustained in the performance of duty.

FACTUAL HISTORY
On March 26, 2007 appellant, then a 52-year-old food service worker, filed an
occupational disease claim alleging that repetitive duties of her job resulted in a right arm and
shoulder condition. She became aware of her condition on February 15, 2007 and realized that it
was aggravated by her employment on February 27, 2007. Appellant did not stop work.
In a letter dated March 29, 2007, the Office informed appellant that the evidence of
record was insufficient to establish her claim for a right arm/shoulder condition. It advised her
as to the medical and factual information required to support her claim. Appellant was given 30
days to submit the requested information.1
Appellant submitted a June 5, 2007 statement noting that her job involved placing food
on trays that are on a conveyor belt.2 She also provided physical therapy reports and progress
notes from Dr. Robert G. Liss, a Board-certified orthopedic surgeon, dated April 11 to
May 23, 2007. On May 2, 2007 Dr. Liss advised that appellant presented on April 11, 2007 with
complaints of right shoulder pain, which had been ongoing for several months and hurt more
when she used her right arm to cut and lift and do repetitive movements at work. He noted that
examination showed slight limitation of internal rotation on the right side with a mild positive
impingement sign and no weakness, sensory or reflex loss in the right upper extremity. Dr. Liss
opined that appellant had right shoulder rotator cuff tendinitis and referred her to physical
therapy. He noted that appellant did not require restrictions with regard to her right shoulder.
Dr. Liss opined that appellant had a degenerative condition, but that overhead activities at work
and repetitive lifting with the right arm might contribute to increasing symptoms. In a May 2,
2007 work capacity evaluation, he advised that appellant was capable of performing her usual
job without restrictions. In a May 23, 2007 report, Dr. Liss advised that appellant had full range
of motion and only some mild stiffness with internal rotation. He noted that she was tolerating
her full work activities and recommended that she continue with an exercise program for her
shoulders and see him on an as needed basis.
By decision dated June 25, 2007, the Office accepted that appellant’s job required
repetitive motion of the arms and shoulders. It denied her claim on the grounds that the medical
evidence was not sufficient to establish that her work caused or aggravated her diagnosed right
shoulder rotator cuff tendinitis condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
1

The Office granted appellant an extension to provide such evidence by June 25, 2007.

2

In her statement, appellant also advised that she started her position approximately two months earlier and that it
was a reasonable accommodation position.
3

5 U.S.C. §§ 8101-8193.

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timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged, and that any disabilities and/or specific conditions for
which compensation is claimed are causally related to the employment injury.4 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
An occupational disease or illness means a condition produced in the work environment
over a period longer than a single workday or shift by such factors as systemic infection,
continued or repeated stress or strain or other continued or repeated conditions or factors of the
work environment.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.9 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
conditions and the specific employment factors identified by the employee.10
ANALYSIS
It is not disputed that appellant’s job as a food service worker included repetitive motion
of the arms and shoulders. However, she has not submitted sufficient medical evidence to
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Donald W. Wenzel, 56 ECAB 390 (2005); William Taylor, 50 ECAB 234 (1999); see also 20 C.F.R. § 10.5(q).

7

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); Donna L. Mims, 53 ECAB 730 (2002).

8

David Apgar, 57 ECAB ___ (Docket No. 05-1249, issued October 13, 2005).

9

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
10

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Roy L. Humphrey, 57 ECAB ___ (Docket
No. 05 -1928, issued November 23, 2005).

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support that her diagnosed right shoulder condition was causally related to her employment. For
this reason, she has not discharged her burden of proof to establish her claim.
Appellant submitted reports from Dr. Liss for treatment of her right shoulder condition.
Dr. Liss diagnosed a right shoulder rotator cuff tendinitis and opined, in his May 2, 2007 report,
that appellant’s overhead activities and repetitive lifting with the right arm at work “might”
contribute to increasing symptoms. The Board finds that Dr. Liss’ opinion is equivocal and
unrationalized. The Board has held that medical opinions which are speculative or equivocal in
character are of diminished probative value.11 The mere fact that appellant may have
experienced symptoms during her employment, without more, is not probative. The Board has
held that the concurrence of symptom development with a period of employment is insufficient
to establish causal relationship.12 Dr. Liss did not provide a reasoned medical opinion explaining
how appellant’s work activities would cause or aggravate her diagnosed condition. Therefore,
the reports of Dr. Liss are insufficient to support appellant’s claim.
Appellant also submitted physical therapy reports. However, these reports are of no
probative value as physical therapists are not physicians as defined under the Act.13
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.14 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
Appellant has not met her burden of proof in establishing that she developed a right
shoulder condition in the performance of duty.

11

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007).

12

Robert M. Sanford, 27 ECAB 115 (1975).

13

5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357, 360 (2000) (a physical therapist is not a physician under
the Act).
14

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

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 25, 2007 is affirmed.
Issued: April 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 15-1066
Issued: September 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 6, 2015 appellant filed a timely appeal of a March 19, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of his
right lower extremity for which he received a schedule award.
On appeal, appellant alleged that his physician was entitled to the weight of the medical
evidence, rather than an OWCP medical adviser.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 22, 2009 appellant then a 57-year-old letter carrier, filed a traumatic injury
claim alleging that on that date he fell down stairs covered with snow and dislocated his right
knee. In a report dated December 24, 2009, Dr. Edward C. Rabbitt, a Board-certified orthopedic
surgeon, noted appellant’s history of a fall on December 22, 2009 and stated that he examined xrays of appellant’s right leg finding no fractures or dislocations. Appellant’s x-rays
demonstrated a small joint effusion and mild osteoarthritis of the patellofemoral compartment.
Dr. Rabbitt diagnosed quadriceps tendon rupture. Appellant underwent surgical repair on
December 28, 2009.
By decision dated December 31, 2009, OWCP accepted his claim for rupture of the right
quadriceps tendon. Appellant returned to light-duty work on June 21, 2010.
In a report dated August 24, 2010, Dr. Rabbitt found that appellant had weakness of the
quadriceps and a history of his right knee buckling while walking. He found excellent range of
motion and good quadriceps definition. Dr. Rabbitt noted moderately significant patellofemoral
crepitus, but stated that appellant did not seem to be particularly painful with range of motion.
Appellant accepted a modified position as a city carrier on September 3, 2010.
Appellant requested a schedule award on November 16, 2010. In a report dated
December 14, 2010, Dr. Rabbitt reported that appellant was doing well, but having difficulty
descending stairs and building strength with weights. He stated that appellant was not achieving
significant improvement in his right leg function and strength. Dr. Rabbitt found that appellant
had excellent range of motion with no swelling. He reported that appellant was capable of
straight leg raising and had good strength. Dr. Rabbitt noted that appellant exhibited quadriceps
atrophy and crepitus with the patella with range of motion. He recommended further exercises
and reexamination.
OWCP requested on November 30, 2011 that appellant provide medical evidence that his
condition had reached maximum medical improvement. It stated that it could take no action on
his claim for a schedule award.
Dr. Rabbitt completed a report on February 21, 2012 and diagnosed rupture of the
quadriceps tendon. He found no swelling, instability, subluxation, or laxity with normal
sensation. Dr. Rabbitt reported crepitus with normal strength and muscle tone. He noted that
appellant’s right knee continued to buckle and give way while going down stairs. Dr. Rabbitt
stated that appellant had reached maximum medical improvement. He examined appellant on
September 7, 2012 and stated that appellant continued to report difficulty descending stairs as his
quadriceps was not as strong as it was before the accident. Dr. Rabbitt repeated his previous
findings on physical examination.
Appellant again requested a schedule award on March 7, 2013. In a letter dated
March 18, 2013, OWCP informed appellant that in order to establish his claim for permanent
impairment he should submit medical evidence of maximum medical improvement, detailed
findings on examination and an impairment rating in accordance with the sixth edition of the

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American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2
By decision dated May 14, 2013, OWCP denied appellant’s claim for a schedule award
as he failed to submit the necessary medical evidence to establish a permanent impairment in
accordance with FECA.
Appellant again requested a schedule award on May 14, 2013. In a letter dated May 20,
2013, OWCP again informed him of the medical evidence necessary to establish his claim for a
schedule award. It denied appellant’s request for a schedule award by decision dated
July 31, 2013. Appellant requested an oral hearing from OWCP’s Branch of Hearings and
Review on August 5, 2013.
In a report dated November 6, 2013, Dr. Rabbitt diagnosed work-related quadriceps
tendon rupture. He reported that he had performed surgery, but appellant continued to exhibit
static mild weakness in the quadriceps on the right and patellofemoral crepitus following
maximum medical improvement. Dr. Rabbitt noted that appellant demonstrated mild extension
lag. He stated, “In regard to his disability rating, I am referencing the A.M.A., Guides sixth
edition page 509.3 Using the ruptured tendon as well as the modifier for moderate problems, I
would rate him as having a 20 percent partial permanent disability of his right lower extremity.”
Appellant testified at the oral hearing on January 16, 2014. He stated that Dr. Rabbitt’s
report should be sufficient to establish his schedule award claim. The hearing representative
requested further information from Dr. Rabbitt regarding how he reached his impairment rating
under the A.M.A., Guides.
By decision dated April 3, 2014, OWCP hearing representative found that the case was
not in posture for a decision and directed OWCP to refer Dr. Rabbitt’s report to a medical
adviser to evaluate the evidence for schedule award purposes.
In a report dated December 6, 2014, OWCP medical adviser noted that the table cited by
Dr. Rabbitt did not provide for 20 percent impairment of the lower extremity due to a ruptured
tendon and that the maximum impairment rating for this condition was 13 percent due to
moderate motion deficits or significant weakness. He applied the A.M.A., Guides to
Dr. Rabbitt’s findings on physical examination including static mild weakness in the quadriceps,
patellofemoral crepitus, and mild weakness. OWCP medical adviser opined that appellant would
fall in a class 1 category with a default impairment rating of two percent. He stated,
“Impairments from 5 percent to 13 percent would include motion deficits which were not
described in Dr. Rabbitt’s report.” OWCP medical adviser concluded that appellant had two
percent impairment of the right lower extremity based on the medical evidence in the record and
that he reached maximum medical improvement on January 1, 2012.
2

See 20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5.a (February 2013).
3

A.M.A., Guides 509, Table 16-3 Knee Regional Grid.

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By decision dated March 19, 2015, OWCP granted appellant a schedule award for two
percent permanent impairment of his right lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.6
In addressing lower extremity impairments, the sixth edition of the A.M.A., Guides
requires identifying the impairment for the Class of Diagnosis (CDX) condition, which is then
adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE), and Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).7
ANALYSIS
The Board finds that appellant has no more than two percent permanent impairment of
his right lower extremity for which he has received a schedule award.
In support of his claim for a schedule award, appellant submitted a series of reports from
Dr. Rabbitt. On August 24, 2010 Dr. Rabbitt reported that appellant’s right lower extremity
demonstrated excellent range of motion. In a report dated February 21, 2012, he opined that
appellant had reached maximum medical improvement with no swelling, instability, subluxation,
or laxity, and with normal sensation in his right lower extremity. Dr. Rabbitt reported crepitus
with normal strength and muscle tone. On November 6, 2013 he found that appellant continued
to exhibit static mild weakness in the quadriceps on the right and patellofemoral crepitus
following maximum medical improvement. Dr. Rabbitt noted that appellant demonstrated mild
extension lag. He stated, “In regard to his disability rating, I am referring [to] the A.M.A.,
Guides sixth edition page 509.8 Using the ruptured tendon as well as the modifier for moderate
4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
7

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

8

Id. at 509, Table 16-3 Knee Regional Grid.

4

problems, I would rate him as having a 20 percent partial permanent disability of his right lower
extremity.”
OWCP medical adviser reviewed Dr. Rabbitt’s reports and applied the A.M.A., Guides
noting that Table 16-3, which was appropriately cited by Dr. Rabbitt, did not provide for 20
percent impairment of the lower extremity due to a ruptured tendon.9 Rather, this table provides
a maximum impairment rating of 13 percent for a tendon rupture with moderate motion deficits
or significant weakness. The medical adviser indicated that Dr. Rabbit found that appellant had
static to mild weakness. Based on that description he placed appellant in the class 1 category
giving him a two percent impairment rating. The Board finds that Dr. Rabbitt’s reports did not
support physical findings of moderate motion deficits or significant weakness. Dr. Rabbitt stated
that appellant had excellent range of motion and repeatedly stated that appellant had normal
muscle tone with mild weakness. As his impairment rating did not comport with the A.M.A.,
Guides, OWCP properly relied on the findings and conclusions of its medical adviser. It is well
established that, when the attending physician fails to provide an estimate of impairment
conforming to the A.M.A., Guides, his or her opinion is of diminished probative value in
establishing the degree of permanent impairment and OWCP may rely on the opinion of its
medical adviser to apply the A.M.A., Guides to the findings of the attending physician.10 The
Board finds, contrary to appellant’s argument on appeal, that the weight of the medical evidence
in this case rests with OWCP medical adviser who properly applied the A.M.A., Guides to
Dr. Rabbitt’s physical findings and reached an impairment rating of two percent of the right
lower extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than two percent permanent impairment of
his right lower extremity for which he received a schedule award.

9

Id.

10

Linda Beale, 57 ECAB 429 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 16-1756
Issued: November 18, 2016

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 September 2, 2016 appellant filed a timely appeal from an August 12, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury causally related to factors of his federal employment.
FACTUAL HISTORY
On December 29, 2015 appellant, then a 58-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) for a left hand/thumb injury that allegedly arose in the
1

5 U.S.C. § 8101 et seq.

performance of duty on or about August 18, 2015. He attributed his claimed condition to pulling
mail trays from sleeves, lifting mail trays, and grasping mail to load on the machine. Appellant
did not stop work. Additionally, he did not submit any medical evidence with his December 29,
2015 Form CA-2.
In a January 19, 2016 letter, OWCP advised appellant of the type of factual and medical
evidence necessary to establish his occupational disease claim.
Appellant submitted an attending physician’s report (Form CA-20) dated December 28,
2015 in which Dr. Gregory Gardner, an attending osteopath and Board-certified emergency
medicine physician, listed the date of injury as August 18, 2015, the history of injury as work
injury to left hand/thumb with repetitive use, and the diagnosis as left thumb strain. Dr. Gardner
checked a “Yes” box to indicate that the condition was caused or aggravated by an employment
activity. He added the notation, “Occurred within scope of employment.” Dr. Gardner also
provided a December 28, 2015 narrative report noting that appellant described a gradual onset of
pain in his left hand/thumb while working for the employing establishment. In a December 28,
2015 duty status report (Form CA-17), he indicated that appellant could return to work with a
20-pound lifting/carrying restriction. Dr. Gardner also imposed a two-hour limit on simple
grasping. He provided similar Form CA-20s, narrative reports, and Form CA-17s dated
January 13 and 27, 2016.
A February 1, 2016 left hand magnetic resonance imaging (MRI) scan showed arthritic
changes throughout all the metacarpophalangeal joints.
By decision dated February 22, 2016, OWCP found that appellant had not established
fact of injury. Appellant failed to establish that the employment exposure occurred as alleged
and also failed to submit medical evidence identifying an employment-related diagnosis.
Consequently, OWCP denied appellant’s occupational disease claim.
Appellant timely requested a review of the written record by an OWCP hearing
representative. He also submitted additional medical evidence.
Dr. Eddie Joslin, a Board-certified internist, provided treatment notes from August 18
and October 30, 2015. Appellant initially complained of bilateral hand/thumb pain of several
weeks’ duration (two to three weeks). He advised Dr. Joslin that he used his hands repetitively
at work. Dr. Joslin diagnosed thumb pain, likely secondary to repetitive use. He indicated that
he suspected a degree of tendinitis and/or arthritis. Dr. Joslin prescribed Naprosyn and advised
appellant to try to decrease repetitive activities. When appellant returned on October 30, 2015,
his chief complaint was pain in the left palm and thumb. A left thumb x-ray obtained that day
revealed arthritis at the proximal interphalangeal (PIP) joint.
In a December 8, 2015 report, Dr. Marc A. Roux, a Board-certified orthopedic surgeon,
diagnosed left thumb trigger and discussed with appellant the possibility of undergoing a trigger
thumb release.
Dr. Robert Ippolito, a Board-certified hand surgeon, examined appellant on February 16,
2016 for left thumb complaints. He diagnosed “right” thumb carpometacarpal (CMC)

2

osteoarthritis. Dr. Ippolito noted that appellant “works as a clerk,” but he did not otherwise
discuss appellant’s particular job duties.
Dr. Gardner provided Form CA-20s, narrative medical reports, and Form CA-17s for
appellant’s visits on February 5, March 2, 30, April 27, May 25, and July 22, 2016 that are
substantially similar to his prior reports.
In a February 17, 2016 report, Dr. Gardner indicated that he had been asked to provide a
medical opinion regarding causation and the treatment provided with respect to appellant’s
August 18, 2015 work-related injury. He indicated that it was his understanding that appellant
worked as a letter carrier for over 32 years and had been required to grip and grasp to deliver
mail for 8 to 10 hours a day, 5 to 6 days a week. Dr. Gardner diagnosed left thumb strain and
left thumb osteoarthritis and noted:
“After examining [appellant] it is my impression that he does have left thumb
strain and left thumb osteoarthritis as a result of his work injury of
August 18, 2015. In my medical opinion, the work injury of August 18, 2015 was
a substantial factor in bringing about these conditions…. In my medical opinion
based on reasonable medical probability, the constant gripping and grasping to
deliver mail over 32 years while working as a letter carrier produced the acute left
thumb strain and the left thumb osteoarthritis. Therefore, it is my medical opinion
based on reasonable medical probability that the August 18, 2015 workers’
compensation injury produced the left thumb strain and the left thumb
osteoarthritis.”
In an August 12, 2016 decision, the hearing representative affirmed OWCP’s
February 22, 2016 decision denying appellant’s occupational disease claim. She similarly found
that appellant had not provided a detailed description of the employment-related activities he
believed contributed to his claimed left hand/thumb condition. The hearing representative
further found that Dr. Gardner did not provide adequate medical rationale in support of his
opinion on causal relationship. She noted that Dr. Gardner mistakenly identified appellant as a
letter carrier, rather than a mail processing clerk.
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 timely filed within the applicable time
limitation period of FECA, that the 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.2 To establish fact of injury, an employee must submit
sufficient evidence to establish that he or she experienced a specific event, incident, or exposure
occurring at the time, place, and in the manner alleged.3 An employee must also establish that
2

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

3

such event, incident, or exposure caused an injury.4 These are the essential elements of each and
every compensation claim regardless of whether the claim is predicated upon a traumatic injury
or an occupational disease.5
OWCP regulations define the term “[o]ccupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.6 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, an employee must submit the following: (1) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence.8 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established employment factors.9
ANALYSIS
On December 29, 2015 appellant filed a Form CA-2 claiming that he sustained an injury
to his left hand and thumb due to pulling mail trays from sleeves, lifting mail trays, and grasping
mail to load on the machine. He indicated that he first became aware of his employment-related
condition on August 18, 2015.
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on or about August 18, 2015.
Dr. Joslin examined appellant on August 18 and October 30, 2015. He initially suspected
tendinitis and/or arthritis and commented that appellant’s pain was likely secondary to repetitive
use. A subsequent left thumb x-ray revealed PIP joint arthritis. Although Dr. Joslin surmised
that appellant’s hand/thumb pain was likely due to repetitive use, he did not identify appellant’s
specific employment duties and did not provide an explanation of how those activities either

4

Id.

5

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

6

20 C.F.R. § 10.5(q); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of
Claims, Chapter 2.800.2b (June 2011).
7

D.H., Docket No. 15-1876 (issued January 29, 2016); D.I., 59 ECAB 158 (2007); Victor J. Woodhams, 41
ECAB 345 (1989).
8

F.S., Docket No. 15-1052 (issued July 17, 2015); Tomas Martinez, 54 ECAB 623 (2003).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); John W. Montoya, 54 ECAB 306 (2003).

4

caused or contributed to his diagnosed left thumb arthritis.10 Consequently, his opinion is
insufficient to meet appellant’s burden of proof.
In a December 8, 2015 report, Dr. Roux diagnosed left thumb trigger, but did not address
the cause of appellant’s condition.
Dr. Ippolito examined appellant on February 16, 2016 for left thumb complaints and
inadvertently diagnosed “right” thumb CMC osteoarthritis. Although he noted that appellant
worked as a clerk, Dr. Ippolito did not discuss appellant’s particular job duties or whether his
employment as a clerk either caused or contributed to his diagnosed CMC joint osteoarthritis.
Appellant submitted several Form CA-20s dated between December 2015 and July 2016
in which Dr. Gardner, an attending physician, listed the date of injury as August 18, 2015, the
history of injury as work injury to left hand/thumb with repetitive use, and the diagnosis as left
thumb strain. Dr. Gardner checked a “Yes” box to indicate that the condition was caused or
aggravated by an employment activity. He added the notation, “Occurred within scope of
employment.”
The Board finds that the submission of these reports would not establish appellant’s
claim for an occupational disease because Dr. Gardner did not provide medical rationale in
support of his opinion on causal relationship. Dr. Gardner merely noted that appellant’s injury
was due to repetitive use and that it occurred within the scope of employment. The Board has
consistently held that merely placing a mark in the “Yes” box on question 8 (Form CA-20) will
not suffice for purposes of establishing causal relationship.11 In this instance, Dr. Gardner added
the notation that appellant’s injury occurred within the scope of employment. However, he did not
describe appellant’s job duties in any detail or explain how they could have contributed to the
diagnosed condition. Appellant’s burden includes the necessity of furnishing an affirmative
opinion from a physician who supports his or her conclusion with sound medical reasoning.12
In a February 17, 2016 report, Dr. Gardner indicated that appellant worked as a letter
carrier for over 32 years and had been required to grip and grasp to deliver mail for 8 to10 hours
a day, 5 to 6 days a week. He diagnosed left thumb strain and left thumb osteoarthritis and noted
both that “the work injury of August 18, 2015 was a substantial factor in bringing about these
conditions” and that “the constant gripping and grasping to deliver mail over 32 years while
working as a letter carrier produced the acute left thumb strain and the left thumb osteoarthritis.”
This report is of limited probative value with respect to appellant’s occupational disease
claim for several reasons. Dr. Gardner still has not described appellant’s work duties in any
detail and, in fact, his opinion is based on an improper factual history as he identified appellant
as having been a letter carrier rather than a mail processing clerk.13 In addition, he provided
10

A physician’s opinion on causal relationship must be based on a complete factual and medical background.
Victor J. Woodhams, supra note 7.
11

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

12

Lillian M. Jones, 34 ECAB 379, 381 (1982).

13

John W. Montoya, supra note 9.

5

conflicting statements regarding the mechanism of injury, noting both that appellant sustained a
left thumb strain and left thumb osteoarthritis on August 18, 2015 and that he sustained these
same conditions over the course of 32 years.
Appellant attributed his condition to pulling mail trays from sleeves, lifting mail trays,
and grasping mail to load on the machine. The above-noted reports from Dr. Joslin, Dr. Roux,
Dr. Ippolito, and Dr. Gardner all fail to establish a causal relationship between appellant’s
diagnosed left hand/thumb condition and his employment as a mail processing clerk.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury causally
related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2016
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Docket No. 12-1828
Issued: March 25, 2013

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

Case Submitted on the Record

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

JURISDICTION
On September 20, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) September 17, 2012 merit decision and its April 2, 2012
nonmerit decision denying reconsideration. 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
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a recurrence of
disability for the period March 30 through June 27, 2010 causally related to her accepted injury;

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument before the Board. By letter dated September 20, 2012, the Clerk of
the Board requested that appellant submit the issues to be argued, as well as the reasons why oral argument was
necessary. Appellant was also requested to confirm that she would attend the oral argument in Washington DC.
She did not respond to this request.

and (2) whether OWCP properly refused to reopen appellant’s case for further review of the
merits pursuant to 5 U.S.C. § 8128(a).3
FACTUAL HISTORY
This case has previously been before the Board. In a February 3, 2012 decision, the
Board affirmed OWCP’s December 20, 2010 decision denying appellant’s claim for a recurrence
of total disability for the period June 28 through December 20, 2010.4 In a July 10, 2012
decision, the Board affirmed May 3 and September 22, 2010 decisions denying her recurrence
claim for the period December 21, 2010 through February 22, 2011. The Board also found that
OWCP failed to properly address appellant’s request for reconsideration of its May 19, 2010
decision and set aside the August 18, 2011 decision, remanding the case for a determination as to
whether appellant submitted sufficient evidence or argument to require OWCP to reopen a case
for merit review under section 8128(a) of FECA.5 By decision dated October 3, 2012, the Board
affirmed the decision dated December 16, 2011 denying recurrence claims for the periods
February 23 to June 3, 2011 and July 22 to December 16, 2011.6 In a December 4, 2012
decision, the Board affirmed OWCP’s June 4, 2012 decision denying the recurrence claim for the
period December 16, 2011 through May 18, 2012.7 The facts and the law contained in those
decisions are incorporated herein by reference. The relevant facts are delineated below.
On April 30, 2002 appellant, then a 33-year-old part-time, flexible mail processor, filed
an occupational disease claim alleging that she sustained injuries to her fingers and wrists due to
repetitive work activities. OWCP accepted her claim for left shoulder tendinitis and left cubital
tunnel syndrome.8
On July 25, 2007 Dr. Linwood Black, appellant’s treating physician, provided work
restrictions based on her accepted cubital tunnel syndrome condition. Restrictions included no
pushing, pulling or lifting, no reaching above the shoulder and no repetitive work.
Appellant worked in modified mail processing positions, which accommodated her
medical restrictions. On August 20, 2007 she accepted a position as a modified mail
handler/scanning equipment monitor. Duties required appellant to account for equipment;
3

Appellant indicated that she was appealing an August 14, 2012 decision. The Board notes, however, that the
record does not contain a final decision issued on August 14, 2012.
4

Docket No. 11-1350 (issued February 3, 2012).

5

Docket No. 12-57 (issued July 10, 2012). The Board also set aside an August 18, 2011 decision denying merit
review remanded the case for a merit review of a May 19, 2010 decision denying a recurrence claim for the period
March 30 through June 27, 2010.
6

Docket No. 12-708 (issued October 3, 2012).

7

Docket No. 12-1422 (issued December 4, 2012).

8

Appellant’s April 23, 2002 claim was accepted for contusions of the chest and left arm, elbow and shoulder in
File No. xxxxxx836. File No. xxxxxx836 was combined with the instant case (File No. xxxxxx142), with File No.
xxxxxx142 serving as the master file.

2

inventory paper and batteries; and tag defective equipment. Physical requirements included
good vision and the ability to write notes, communicate verbally and identify defective
equipment. Appellant worked in this position until October 20, 2008, when she was taken off
work by Dr. Black. On February 14, 2009 Dr. Black released appellant to return to work subject
to her prior restrictions.
Appellant filed a claim for a recurrence of disability beginning October 20, 2008. She
alleged that she was totally disabled from October 20 2008 through February 13, 2009, and that
her supervisor refused to allow her to return to work on February 14, 2009, when she was
released to work with restrictions. By decision dated March 9, 2010, OWCP accepted
appellant’s recurrence claim for the period October 22, 2008 through March 7, 2010.9
On March 29, 2010 appellant accepted a full-time modified position as a debris screener.
Duties included: screening debris for mailable items; applying correct routing codes; and color
coding labels. Physical requirements of the position included manipulating light debris (2
hours); retrieving and inserting routing codes (2 hours); and writing time and date on tags.
Appellant worked eight hours on March 29, 2010. She did not return to work after working one
shift.
On April 9, 2010 appellant filed a claim for compensation alleging total disability as of
March 30, 2010.
On April 19, 2010 OWCP informed appellant that the evidence she submitted was
insufficient to establish that she was disabled during the claimed period. It advised her to submit
medical evidence with examination findings, a diagnosis and an opinion regarding her disability
from work.
Appellant submitted an April 29, 2010 status report from Dr. Black diagnosing cubital
tunnel syndrome and reflecting that she was disabled from March 30 through June 27, 2009.
Stating that she could return to work on June 30, 2010, Dr. Black provided restrictions including
no pushing, pulling, reaching above the shoulder, grasping and no repetitive movements.
By decision dated May 19, 2010, OWCP denied appellant’s recurrence claim for the
period March 30 through June 27, 2010 on the grounds that the record did not contain medical
evidence establishing that appellant was disabled during the claimed period.
In a letter dated May 20, 2010, appellant requested additional time to obtain a letter from
her physician. She stated that she had returned to work on March 29, 2010 “when [her] left arm
was aggravated due to the job.”
On May 20, 2010 the employing establishment offered appellant another modified job as
a debris screener in Des Moines, IA.10 Physical requirements of the position included
manipulating light-weight debris up to four hours and writing time and date on tags. An
9

OWCP subsequently paid appellant compensation through March 26, 2010.

10

Correspondence in the record reflects that appellant was contemplating a move to Des Moines, IA and that the
May 20, 2010 offer was an attempt to accommodate appellant.

3

employing establishment physician forwarded a copy of the proposed job to Dr. Black for his
review.
In a letter dated June 4, 2010, Dr. Black reiterated his diagnosis of cubital tunnel
syndrome and indicated that he had reviewed the proposed position. He opined that the job
would be ideal for appellant, since her injury was limited to the left arm.
Appellant submitted a May 22, 2010 report from Dr. Tariq M. Awan, a Board-certified
family practitioner, who noted appellant’s report that, after returning to work on March 27, 2010,
her injury was exacerbated on March 29, 2010 by packages falling on her left arm. On
examination of the left shoulder, appellant had tenderness to palpation over the AC joint and full
range of motion in forward/lateral elevation and internal/external rotation. Motor tests
performed included elevation, abduction, supraspinatus, subscapularis, elbow flexion/extension,
wrist flexion/extension and finger abduction, which were all 5/5. Sensation was intact to
pinprick. Tinel’s, Hawkin’s and Neer’s tests were positive. Dr. Awan diagnosed left shoulder
AC joint arthrosis, left shoulder rotator cuff tendinitis, left radial tunnel vs. cubital tunnel vs.
cervical radiculitis and lumbar disc disease.
On May 17, 2011 appellant requested reconsideration of the May 19, 2010 decision.
The record contains disability slips from Dr. Awan for the period October 23 through
December 20, 2010. On October 23, 2010 he diagnosed lower back pain, left shoulder rotator
cuff tendinitis and left cubital tunnel syndrome. He stated that appellant was disabled from
March 30 through November 30, 2010. On December 4, 2010 Dr. Awan found her disabled
from March 30 through December 3, 2010. On December 20, 2010 he disabled her from
December 5 to 22, 2010.
In a merit decision dated September 17, 2012, OWCP denied modification of its May 19,
2010 decision, finding that appellant had failed to establish that she was disabled due to her
accepted condition for the period March 30 through June 27, 2010.
On March 19, 2012 appellant requested reconsideration “due to new medical evidence.”
She submitted the December 4, 2010 report from Dr. Awan and the October 23, December 4
and 20, 2010 disability slips. In a February 17, 2012 attending physician’s report, Dr. Awan
indicated that appellant was disabled from March 30 through December 26, 2010 and that her
injury was exacerbated at work on March 29, 2010. The record contains prescriptions for
physical therapy and reports pertaining to other periods of claimed disability.
The record contains an unsigned December 12, 2010 emergency room report from
Broadlawns Medical Center reflecting that appellant received a prescription for Vicodin and
Neurontin on that date. The record also contains a report of a December 19, 2011 EMG.
In a December 20, 2010 disability certificate, Dr. Aleeq Rehman, a treating physician
indicated that appellant was on work disability from December 1, 2010 through
January 20, 2011. Work restrictions included no overhead lifting, no repetitive or overhead
work, no above-the-shoulder work and no bending or twisting.

4

In a March 12, 2012 disability certificate, Dr. Rhona A. Fingal, a Board-certified
internist, indicated that appellant was disabled from July 22, 2011 through July 10, 2012.
By decision dated April 2, 2012, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence and argument submitted was insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 10.5(x) of OWCP’s regulations define “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness, without an intervening injury or
new exposure to the work environment that caused the illness.11 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.12
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position, or the medical evidence
establishes that he or she can perform the light-duty position, the employee has the burden to
establish, by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability, and show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.13
The Board will not require OWCP to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.14
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s compensation claims for the period October 22, 2008
through March 26, 2010. In its May 19, 2010 decision, it denied her claim for disability
compensation from March 30 through June 27, 2010 following her return to work. The Board
finds that appellant has not met her burden of proof to establish that she sustained a recurrence of
total disability for the period March 30 through June 27, 2010.

11

20 C.F.R. § 10.5(x) (2002). See Carlos A. Marrero, 50 ECAB 117 (1998).

12

Id.

13

Conard Hightower, 54 ECAB 796 (2003).

14

Fereidoon Kharabi, 52 ECAB 291 (2001).

5

OWCP accepted appellant’s claim for left shoulder tendinitis and left cubital tunnel
syndrome. From August 20, 2007 until October 20, 2008, appellant worked as a modified mail
handler subject to medical restrictions, which included: no pushing, pulling or lifting; no
reaching above the shoulder; and no repetitive work. Having been released by her treating
physician to return to work, appellant accepted a full-time modified position as a debris screener
effective March 29, 2010. The duties of the position, which included screening debris for
mailable items, applying correct routing codes and color coding labels, were consistent with her
restrictions. The record reflects, however, that appellant worked only one day, after which she
claimed total disability. The evidence of record does not establish that appellant was disabled
from her light-duty job due to her accepted condition.
Appellant suggests that the light-duty assignment exceeded her restrictions because it
required repetitive movement. There is no evidence of record supporting her claim that her lightduty assignment exceeded her restrictions. None of the many medical reports submitted by
appellant reflected that her job duties exceeded her recommended restrictions. The Board finds
that she has failed to establish an inability to work due to the withdrawal of her light-duty
assignment or due to the alteration of the physical requirements of her assignment so that they
exceeded her established physical limitations.15 On the contrary, Dr. Black opined on June 4,
2010 that the modified position was ideal for appellant.
Medical evidence of record does not include a rationalized report from a physician
supporting appellant’s claim that she was totally disabled as of March 30, 2010 due to residuals
of her accepted injury. In an April 29, 2010 status report, Dr. Black diagnosed cubital tunnel
syndrome and stated that appellant was disabled from March 30 through June 27, 2009. Stating
that she could return to work on June 30, 2009, he provided restrictions including no pushing,
pulling, reaching above the shoulder, grasping and no repetitive movements. Dr. Black’s report,
however, does not contain examination findings or any explanation as to how appellant’s
claimed disability was causally related to her accepted injury. A medical opinion that is not
fortified by rationale is of diminished probative value.16 Moreover, as noted, Dr. Black opined
on June 4, 2010 that the proposed modified job was ideal for appellant.
Reports from Dr. Awan do not support appellant’s recurrence claim. On May 22, 2010
Dr. Awan noted appellant’s report that her injury was exacerbated on March 29, 2010 by
packages falling on her left arm. On October 29, 2010 he stated that her left upper extremity
condition flared up when she was transferred to a position with the employing establishment in
Iowa. Such an event would constitute a new injury, rather than a spontaneous change resulting
from appellant’s prior injury.17
Disability slips from Dr. Awan for the period October 23, 2010 through February 17,
2012 contain diagnoses and opinions regarding various periods of disability between March 30
and December 22, 2010. These reports, however, do not contain any explanation as to how the
15

Id.

16

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

17

See supra note 11.

6

purported disability was causally related to appellant’s accepted condition. Therefore, they are
of limited probative value. Physicians’ reports and reports of diagnostic tests that do not contain
an opinion regarding appellant’s disability during the claimed period are of diminished probative
value and are insufficient to establish appellant’s claim.18 To the degree that they do not address
the period in question, they are also irrelevant. As noted, the Board will not require OWCP to
pay compensation in the absence of medical evidence directly addressing the particular period of
disability for which compensation is sought.19
Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that she was totally disabled as of
from March 30 through June 27, 2010 due to residuals of her accepted injury or that she was
unable to perform the duties of the modified position. She has provided no evidence that OWCP
required her to work outside of her restrictions, or that her condition worsened to the degree that
she was unable to perform the duties of the position.
On appeal, appellant reiterated her contention that she is entitled to compensation for
total disability due to her accepted injury. For reasons stated, the Board finds that she has failed
to meet her burden of proof to establish her claim.
Appellant has failed to establish by the weight of the reliable, probative and substantial
evidence, a change in the nature and extent of the injury-related condition resulting in her
inability to perform the duties of her modified employment. She has failed to provide
rationalized opinion evidence establishing that as of March 30, 2010 the employing
establishment withdrew, or was unable to provide her with, a light-duty job within her medical
restrictions.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,20
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.21 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
18

Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value. Michael E. Smith, 50 ECAB 313 (1999).
19

Fereidoon Kharabi, supra note 14.

20

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
21

20 C.F.R. § 10.606(b)(2).

7

application for review within one year of the date of that decision.22 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.23 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.24
ANALYSIS -- ISSUE 2
Appellant’s March 19, 2012 request for reconsideration neither alleged, nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered. Consequently, appellant is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2). A claimant may be entitled to a merit review by
submitting new and relevant evidence; appellant, however, did not submit new and relevant
medical evidence.
Appellant’s claim was denied on the grounds that the medical evidence was insufficiently
rationalized to establish that she was totally disabled as of June 28, 2010 due to residuals of her
accepted injury. The evidence submitted in support of her reconsideration request did not
contain a rationalized opinion on her disability during the claimed period. The Board finds,
therefore, that appellant did not submit new and relevant medical evidence in this case.
In reports and disability slips for the period October 23, 2010 through February 17, 2012,
Dr. Awan opined that appellant was disabled for various periods, including the claimed period
from March 30 through June 27, 2010. As these reports did not explain how the claimed
disability was causally related to appellant’s accepted condition, they are irrelevant to the issue at
hand. Additionally, they merely repeat evidence that was previously submitted and are,
therefore, cumulative and duplicative in nature.25
The remaining evidence submitted, including emergency room reports, prescriptions for
physical therapy, reports of diagnostic studies, and disability certificates from Drs. Rehman and
Fingal, do not address how appellant’s claimed disability from March 30 through June 27, 2010
was causally related to her accepted injury. They are therefore, irrelevant and insufficient to
warrant merit review. The Board finds that the evidence submitted by appellant does not
constitute relevant and pertinent new evidence not previously considered by OWCP.26

22

Id. at § 10.607(a).

23

Id. at § 10.608(b).

24

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

25

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
26

See Susan A. Filkins, 57 ECAB 630 (2006).

8

The Board finds that OWCP properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her March 19, 2012 request for reconsideration.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability that was causally related to her accepted injury as of
March 30, 2010.
The Board also finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 17 and April 2, 2012 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 13-1325
Issued: November 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 15, 2013 appellant, through counsel, filed a timely appeal from the April 18,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing a traumatic injury
in the performance of duty on July 2, 2012.
FACTUAL HISTORY
On July 5, 2012 appellant, then a 72-year-old mail handler and equipment operator, filed
a traumatic injury claim alleging that, on July 2, 2012, he sustained a cervical and lumbar

1

5 U.S.C. § 8101 et seq.

osteoarthritis condition in the performance of duty. Appellant stopped work on July 3 and
returned on July 10, 2012. The employing establishment controverted the claim.
In a statement accompanying his claim, appellant indicated that he put his health and
safety at risk even when the medical provider certified that there were other jobs available for
which he would have no physical limitation. He indicated that he had cervical and lumbar
osteoarthritis. Appellant explained that when working in a situation that required him to sit or
stand, or bear all of his weight through his neck, spine and pelvis, it put the “highest pressure on
the claimant neck and back discs” and caused him to have a muscle spasm in the neck and arms.
OWCP received a July 2, 2012 hospital discharge notice, which indicated that appellant
was treated for supraventricular tachycardia near syncope.
By letter dated July 5, 2012, Tamese Evans, a supervisor of distribution operations,
controverted the claim. She noted that she was unable to substantiate that the claimed condition
was related to appellant’s employment and that a medical condition was not diagnosed as being
connected with the employee’s allegation of an accident. Ms. Evans also advised that
administratively acceptable medical documentation was not provided.
By letter dated October 1, 2012, OWCP informed appellant of the type of evidence
needed to support his claim and requested that he submit such evidence within 30 days. No
further evidence was received.
By decision dated November 8, 2012, OWCP denied appellant’s claim on the grounds
that he had not established an injury as alleged and that the medical evidence was insufficient to
establish causal relationship.
OWCP received a statement from appellant noting his work restrictions and medical
history. Appellant also provided reports related to the prior claim from Dr. Steven S. Moalemi, a
Board-certified internist, dating from April 29, 2010 to May 22, 2012, which noted the history of
a December 10, 2006 injury.2 In the May 22, 2013 report, Dr. Moalemi diagnosed left shoulder
sprain, osteoarthritis, exacerbation of cervical spine radiculopathy, osteoarthritis, exacerbation of
thoracic spine sprain with osteoarthritis, and possible meniscus tear and exacerbation of left knee
osteoarthritis with possible meniscus tear. He also provided work restrictions.
In a July 18, 2012 report, Dr. Moalemi noted that appellant was at work on July 2, 2012
performing duties that included standing and separating mail in a bent forward position for
prolonged periods. Appellant related having increased neck pain with radiation to the right arm
with pins and needle sensations and tingling in the right arm and hand. Dr. Moalemi noted that
appellant also informed him that the pain was severe and that he first tried to sit, but also
subsequently laid down flat to try and relieve the pain. He indicated that appellant was taken by
ambulance to an emergency room where he was evaluated and released with medications. At
that time, appellant was also found to have supraventricular tachycardia and was treated for this.
2

Appellant submitted documents pertaining to a prior accepted claim for a December 10, 2006 injury and a
June 8, 2010 recurrence of that injury. This and other previous claims filed by appellant are not before the Board on
the present appeal.

2

Dr. Moalemi advised that appellant continued with complaints of neck pain with radiation to the
right arm and a pins and needles sensation, tingling and pain aggravated by moving his head in
certain positions. He examined appellant and provided findings, which included moderate
distress secondary to neck pain, and a forward-head posture. Cervical spine range of motion
showed flexion of 30 degrees, extension to 10 degrees with pain, rotation to the right of 30
degrees and to the left of 40 degrees. Dr. Moalemi advised that palpation produced spasms and
tenderness with trigger points over the cervical spine paraspinal muscles, upper trapezius
muscles, levator scapular muscles and a positive Spurling’s on the right side. Neurological
examination revealed deep tendon reflexes of 2+ and equal in the bilateral biceps, triceps,
brachioradialis, knees and ankles. Dr. Moalemi indicated that sensation was decreased in the
right upper extremity diffusely to light touch and pinprick and manual muscle testing elicited
decreased strength proximally secondary to neck pain. He diagnosed exacerbation of cervical
spine radiculopathy. Dr. Moalemi opined that the exacerbation of cervical spine radiculopathy
was a work-related injury and recommended physical therapy. He recommended follow up with
his cardiologist regarding the arrhythmias.
Appellant also submitted a December 20, 2006 letter from the employing establishment
noting that appellant had a chronic condition requiring treatment. OWCP also received several
reports related to appellant’s prior condition. They included a February 3, 2005 magnetic
resonance imaging (MRI) scan of the cervical spine read by Dr. Miklos Weinberger, a Boardcertified radiologist, which revealed a disc herniation at C3-4 and C4-5, a bulging annulus
fibrosis with impingement at C5-6, secondary disc desiccation at multiple levels, a fusion at C6-7
and degenerative changes throughout. A February 17, 2005 lumbar MRI scan, read by
Dr. Ronald Roskin, a Board certified diagnostic radiologist, revealed herniations at L2-3 and L45 and desiccation and bulging at L5-S1. A December 27, 2011 MRI scan of the cervical spine
read by Dr. James R. McCleavey, a Board-certified diagnostic radiologist, revealed spondylosis
deformans, multilevel disc protrusions and cervical lordosis. Also received were physical
therapy notes, a July 2, 2012 hospital discharge notice and a pamphlet on neck pain.
In a November 20, 2012 letter, appellant reported that his traumatic injury occurred while
performing routine culling activities on the electromechanical culling belt. He explained that the
belt was about 34 feet high and 40 feet wide. Appellant noted that he was six feet and one inch
tall and weighed 225 pounds and then he had to lean for long periods over the belt with the
weight of his body supported primarily through his neck, spine and pelvis. He asserted that he
exacerbated his existing cervical and lumbar osteoarthritis conditions which resulted from a prior
work injury of December 10, 2006. Appellant alleged that leaning in a forward position
combined with a disc bulge in his neck and nerve root impingement, resulted in dizziness and
muscle spasms in his neck and right arm. He explained that he stepped back from the culling
belt, walked 10 paces to the front of the belt and sat on an empty mail skid. Appellant noted that
after several minutes passed the emergency medical technicians (EMTs) arrived and he was
transported to a hospital for additional testing.
On November 20, 2012 appellant requested a hearing. A telephonic hearing was held on
March 11, 2013. During the hearing, appellant testified that he was working a modified
assignment on July 2, 2012 when he was “crouched over the belt” and felt a muscle spasm in his
neck. He explained that he had prior neck problems, but this was a different pain, it was stiffness
in his neck.

3

By decision dated April 18, 2013, OWCP’s hearing representative affirmed the prior
decision finding that there was insufficient medical reasoning supporting causal relationship.
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 timely filed within the applicable time
limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.6 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.7 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.8
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
Appellant alleged that on July 2, 2012 he sustained a neck injury while standing and
separating mail in a bent forward position over the conveyor belt for prolonged periods. OWCP
initially found that there was insufficient evidence that the incident occurred as alleged because
3

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

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
7

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

8

See John J. Carlone, id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(ee).

9

I.J., 59 ECAB 408 (2008).

4

appellant failed to provide a statement in response to the October 1, 2012 request for additional
information. However, during the hearing, appellant explained how he was working on the
conveyor belt in a bent position. There is no dispute that, on July 2, 2012, he was standing and
separating mail in a bent forward position over the conveyor belt for a prolonged period. The
Board does not find such inconsistencies in the evidence regarding how the claimed injury
occurred. Thus, the first component of fact of injury, the claimed incident, occurred as alleged.
With regard to whether the July 2, 2012 incident caused the claimed injury, appellant
submitted several medical reports from Dr. Moalemi, his treating physician. While several of
Dr. Moalemi’s reports predate the claimed July 2, 2012 injury and, thus do not support that the
incident on that date caused an injury, his July 18, 2012 report does support that the established
incident exacerbated appellant’s previously accepted condition. In his July 18, 2012 report,
Dr. Moalemi noted that appellant was at work on July 2, 2012 performing his duties which
included standing and separating mail in a bent forward position for prolonged periods. He
related that appellant had increased neck pain with radiation to the right arm which was so severe
that he was taken to an emergency room. Dr. Moalemi examined appellant and noted that he
was in moderate distress secondary to neck pain and had a forward-head posture. Neck palpation
produced spasms and tenderness with trigger points over the cervical spine paraspinal muscles,
upper trapezius muscles and levator scapular muscles. Appellant had some decreased sensation
in the right arm as well as decreased strength. Dr. Moalemi diagnosed exacerbation of cervical
spine radiculopathy. He opined that appellant’s exacerbation of his cervical spine radiculopathy
was a work-related injury and recommended physical therapy. While Dr. Moalemi’s opinion is
not completely rationalized in explaining how the July 2, 2012 employment incident exacerbated
his neck condition, in light of his preexisting neck issues, it raises an uncontroverted inference
between appellant’s claimed condition and the employment incident of July 2, 2012, and is
sufficient to require OWCP to further develop the medical evidence and the case record.10
Therefore, the case must be remanded to OWCP for further development of the medical
evidence, including composition of a statement of accepted facts and referral to an appropriate
medical specialist for a rationalized opinion as to whether the July 2, 2012 work incident caused
or aggravated a right knee injury. Following this and such other development as it deems
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the April 18, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision.
Issued: November 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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Appearances:
Mike Williams, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-972
Issued: July 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2013 appellant, through her attorney, filed a timely appeal from the
September 27 and December 20, 2012 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 sustained a head injury in the performance of duty on
August 13, 2012.
FACTUAL HISTORY
On August 13, 2012 appellant, a 38-year-old postal supervisor, filed a claim for benefits,
alleging a head injury when the motor vehicle she was driving was struck from behind by
another vehicle. The accident occurred at 12:45 p.m.
1

5 U.S.C. § 8101 et seq.

By letter to appellant dated August 21, 2012, OWCP advised her that it required
additional factual and medical evidence to determine whether she was eligible for compensation
benefits. It asked her to submit a comprehensive medical report from her treating physician
describing her symptoms and a medical opinion explaining the cause of any diagnosed condition.
In an August 14, 2012 Underwood Memorial Hospital report, received by OWCP on
September 7, 2012, Dr. Thomas P. Love, Board-certified in emergency medicine, noted that
appellant had sustained trauma and a closed head injury as a result of her vehicle being struck
from behind the day before. He stated that her physical and neurological examination was
mostly normal. Appellant underwent a computerized axial tomography (CAT) scan of her head
which showed normal results, with no hemorrhage, extra-axial collection, mass-effect and no
area of abnormally increased or decreased attenuation in the brain.
By decision dated September 27, 2012, OWCP denied appellant’s claim, finding that she
failed to submit sufficient medical evidence in support of her claim that she sustained a head
injury in the performance of duty.
By letter dated October 5, 2012, appellant requested reconsideration.
Appellant submitted hospital discharge instructions dated August 14, 2012, an August 14,
2012 primary report from the hospital and a police report.
By decision dated December 20, 2012, OWCP denied modification of the September 27,
2012 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.5 Second, the employee must
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

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

2

submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.7 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
OWCP accepted that the August 13, 2012 motor vehicle incident occurred as alleged in the
performance of duty. The question of whether an employment incident caused a personal injury
can only be established by probative medical evidence.8 Appellant has not submitted sufficient,
probative medical evidence to establish that the August 13, 2012 employment incident caused a
personal injury.
Appellant submitted Dr. Love’s August 14, 2012 hospital report, which stated findings on
examination. Dr. Love noted that she sustained trauma and a closed head injury as a result of the
August 13, 2012 vehicular accident. He listed a history that appellant transported herself to the
hospital emergency room that day at approximately 2:30 p.m. Appellant had a normal physical
and neurological examination and underwent a normal CAT scan of her head. Dr. Love did not
provide a probative, medical opinion addressing whether the August 13, 2012 work incident
caused a personal injury.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.9 Appellant did not provide a report from a physician which
offered a firm medical diagnosis of her condition or addressed how her condition was causally
related to the August 13, 2012 work incident. Dr. Love’s August 14, 2012 report did not
establish a head injury when her car was struck from behind on August 13, 2012. His report is of
limited probative value.10 Dr. Love did not adequately describe appellant’s accident other than
noting that she advised that there was no vehicle damage and air bags did not deploy. There is,
therefore, no rationalized evidence in the record that appellant’s head injury was work related.
Therefore, appellant failed to provide a medical report from a physician that explains how the
work incident of August 13, 2012 caused or contributed to the claimed head injury.

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(e).

7

Id.

8

Carlone, supra note 5.

9

See Anna C. Leanza, 48 ECAB 115 (1996).

10

William C. Thomas, 45 ECAB 591 (1994).

3

OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the August 13, 2012 work accident would have
caused the claimed injury. Accordingly, she did not establish that she sustained a head injury in
the performance of duty.
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.
On appeal appellant contends that her medical bills should be reimbursed by OWCP.
The Board notes that the record does not establish that a Form CA-16 was issued by the
employing establishment, which would have created a contractual agreement for payment of
emergency medical care. Given the circumstances of this case, that appellant’s vehicle was
involved in a collision at 12:45 p.m. on August 13, 2012 and she was treated at Underwood
Memorial Hospital on August 14, 2012. Upon return of the case record, OWCP shall determine
whether appellant’s medical treatment on August 14, 2012 should be authorized pursuant to 20
C.F.R. § 10.304, which states that in cases involving emergencies or unusual circumstances,
OWCP may authorize treatment in a manner other than by Form CA-16.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a head injury in
the performance of duty on August 13, 2012.

4

ORDER
IT IS HEREBY ORDERED THAT the December 20 and September 27, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed in part and remanded
in part.
Issued: July 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5