United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Manchester, NH Employer
__________________________________________

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

Docket No. 08-1346
Issued: October 21, 2008

Case Submitted on the Record

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

JURISDICTION
On April 7, 2008 appellant filed a timely appeal of a January 7, 2008 decision of the
Office of Workers’ Compensation Programs, adjudicating his claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant has more than four percent impairment of his right hand
for which he received a schedule award.
FACTUAL HISTORY
On August 12, 2004 appellant, then a 55-year-old air conditioning equipment mechanic,
sustained a crush injury to his right thumb in the performance of duty. He underwent surgery on
that date, performed by Dr. Jinsong Wang, a Board-certified orthopedic surgeon specializing in
hand surgery, for repair of the right thumb nail bed, fractures of the distal and proximal

phalanges and partially lacerated radial digital nerve. The ulnar digital nerve was intact. On
February 24, 2005 appellant filed a claim for a schedule award.
In a March 9, 2005 report, Dr. Wang stated that appellant continued to have some
discomfort and pain in his right thumb. Appellant experienced some decreased sensation in the
radial aspect of his thumb. He noted pain when pinching, gripping or pulling with his right hand
and had some instability of the interphalangeal (IP) joint. Appellant was unable to use power
tools because they irritated his right thumb. Dr. Wang stated:
“On physical examination, [appellant] had a well-healed wound on his right
thumb. Some thumbnail deformity was noted. The thumb deviates towards the
radial side slightly at the IP joint. Active extension-flexion of the IP
[interphalangeal] and MCP [metacarpophalangeal, also abbreviated as MP] joints
was present…. [T]he IP joint range of motion was 0 [to] 25 [degrees], the MCP
joint had 0 [to] 50 [degrees] and his thumb CMC [carpometacarpal] joint had
symmetrical range of motion compared to the left side. Sensory was slightly
decreased on the radial aspect of the thumb. Two-point discrimination was eight
mm [millimeters] on the radial side and six mm on the ulnar side. A pinch meter
was used to measure his pinch strength. A total of three sets of measurements
were taken. On average, the pinch strength on the right side was 6 kg [kilograms]
and on the left side, it was 8.5 kg.
“Based on the [American Medical Association,] Guides to the Evaluation of
Permanent Impairment, [A.M.A., Guides] (5th [e]d. [2001]), Table 16-5 on page
447, eight mm of two-point discrimination is equivalent to 50 percent of sensory
quality impairment. Based on Table 16-6 on page 448, his right thumb [partial]
radial digital nerve injury contributes to five percent of thumb impairment. Based
on Figure 16-12 on page 456, 25 [degrees] of flexion of the IP joint is equivalent
to four percent of thumb impairment and extension to 0 [degrees] is equivalent to
one percent of impairment. Based on Figure 16-15 on page 457, the thumb MCP
joint flexion to 50 [degrees] is equivalent to one percent of thumb impairment. In
summary, [appellant] has six percent impairment of the thumb due to stiffness of
the IP and MCP joints. Based on the Strength Loss Index Calculation Formula on
page [509], [appellant] has 29 percent of a Strength Loss Index. Based on Table
16-34 on the same page, he has 10 percent of upper extremity impairment due to
pinch strength loss. In summary, [appellant] has 11 percent of right thumb
impairment due to the sensory deficit on the radial aspect of the thumb as well as
lack of full range of motion of his IP joint as well as the MCP joint of the thumb.
Based on Table 16-1 on page 438, 11 percent of thumb impairment is equivalent
to 4 percent of hand impairment.1 Based on Table 16-2 on page 439, four percent
of hand impairment is equivalent to four percent of upper extremity impairment.
Combining the 10 percent of upper extremity impairment due to the lack of pinch
1

Under the Federal Employees’ Compensation Act, if only one digit (thumb or a finger) is impaired, the
impairment percentage does not extend to a larger unit, the hand or the upper extremity. 5 U.S.C.
§ 8107(c)(17), (20). However, Dr. Wang chose to apply Table 16-1 of the A.M.A., Guides in which 11 percent
thumb impairment converts to 4 percent impairment of the hand.

2

strength, [appellant] has a total of 14 percent of upper extremity impairment due
to his injury. Based on Table 16-3 on the same page, 14 percent of upper
extremity impairment is equivalent to 8 percent of whole person impairment2.”
On August 8, 2006 Dr. George L. Cohen, a Board-certified internist and Office medical
adviser, found that appellant had a four percent impairment of his right hand based on the
findings in Dr. Wang’s report.3 He stated:
“Using Figure 16-12 [of the A.M.A., Guides], page 456, for 25 degrees of flexion
of the thumb IP joint, there is four percent impairment of the right thumb and for
0 degrees extension, one percent. Using Figure 16-15, page 457, for 50 degrees
of MP flexion, there is one percent. These figures are added resulting in
six percent impairment of the right thumb due to abnormal joint motion.
“Using Figure 16-7, page 447 and Figure 16-6, page 448, for partial radial nerve
sensory loss, there is five percent impairment of the right thumb. There is no
additional impairment for loss of strength. According to Section 16-8a, page 508
of the [A.M.A., Guides], ‘… the impairment due to loss of strength could be
combined with other impairments, only if based on unrelated etiologic or
pathomechanical causes.… Decreased strength cannot be rated in the presence of
decreased motion, painful conditions….’
“The Combined Values Chart, page 604, is used to combine 6 percent impairment
for abnormal motion with 5 percent for sensory loss resulting in 11 percent
impairment of the right thumb. Using Table 16-1, page 438, 11 percent of the
thumb converts to 4 percent impairment of the right hand.”4
On August 15, 2005 the Office granted appellant a schedule award for four percent
impairment of his right hand from March 9 to May 16, 2005 or 9.76 weeks.5
2

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. Phyllis F. Cundiff, 52 ECAB 439 (2001);
John Yera, 48 ECAB 243 (1996). Appellant is not entitled to a schedule award for the whole person based on his
accepted right thumb condition.
3

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
4

As noted, under the Act, if only one digit (thumb or a finger) is impaired, the impairment percentage does not
extend to a larger unit, the hand or the upper extremity. 5 U.S.C. § 8107(c)(17), (20). Dr. Cohen chose to apply
Table 16-1 of the A.M.A., Guides in which 11 percent thumb impairment converts to 4 percent impairment of the
hand. See supra note 1.
5

The Act provides for 244 weeks of compensation for 100 percent loss or loss of use of a hand. 5 U.S.C.
§ 8107(c)(3). Multiplying 244 weeks by four percent equals 9.76 weeks of compensation. The Act provides for
75 weeks of compensation for 100 percent loss or loss of use of a thumb. Multiplying 75 weeks by 11 percent
equals 8.25 weeks of compensation. The Office granted appellant the greater of the two impairments.

3

On August 31, 2005 appellant requested a review of the written record. He stated that the
schedule award he received was not adequate compensation because his thumb injury continued
to be very painful and affected his ability to grasp tools at work and perform his job.
By decision dated December 29, 2005, an Office hearing representative affirmed the
August 15, 2005 decision.
On January 26, 2006 appellant requested reconsideration and submitted additional
evidence. In notes dated February 1, 2006 to June 12, 2007, Dr. Wang stated that there was no
change in his right thumb condition. On October 10, 2007 he stated that the physical
examination had not “significantly” changed since appellant’s last visit. Dr. Wang did not
address the issue of his right thumb impairment rating.
By decision dated January 7, 2008, the Office denied appellant’s claim for more than four
percent impairment of his right hand.6
LEGAL PRECEDENT
The schedule award provision of the Act7 and its implementing regulation8 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.9
ANALYSIS
Dr. Wang found that appellant had 11 percent impairment of his right thumb which is
equivalent to 4 percent right hand impairment.10 He found that appellant had six percent
impairment of his right thumb due to decreased range of motion, including four percent for
25 degrees of flexion of the IP joint and one percent impairment for 0 degrees of extension of the
IP joint, according to Figure 16-12 on page 456 of the A.M.A., Guides and one percent for
50 degrees of flexion of the MCP joint, according to Figure 16-15 on page 457. Appellant had a
five percent impairment of the right thumb for partial sensory loss in the radial digital nerve,

6

Subsequent to the January 7, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

A.M.A., Guides (5th ed. 2001).

10

See supra note 1.

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according to Table 16-5 on page 447 (for 8 mm of two-point discrimination) and Table 16-6 on
page 448.
Dr. Wang found that appellant had 10 percent upper extremity impairment due to pinch
strength loss, according to the Strength Loss Index Calculation Formula and Table 16-34 on page
509 of the A.M.A., Guides. Regarding loss of grip and pinch strength, the A.M.A., Guides states
in section 16.8 at page 508:
“In a rare case, if the examiner believes the individual’s loss of strength represents
an impairing factor that has not been considered adequately by other methods in
the [A.M.A.], Guides, the loss of strength may be rated separately…. If the
examiner judges that loss of strength should be rated separately in an extremity
that presents other impairments, the impairment due to loss of strength could be
combined with the other impairments, only if based on unrelated etiologic or
pathomechanical causes. Otherwise, the impairment ratings based on objective
anatomic findings take precedence….” (Emphasis in the original.)
Dr. Wang did not adequately explain why pinch strength deficit was an appropriate rating
method to apply in determining appellant’s right thumb and right hand impairment. He did not
explain why his loss of pinch strength represented an impairing factor that had not been
considered adequately by other methods in the A.M.A., Guides.11
Dr. Cohen found that appellant had four percent impairment of his right hand based on
the physical findings in Dr. Wang’s report. He found that appellant had six percent impairment
of his right thumb due to decreased range of motion and five percent due to sensory loss.
Dr. Cohen noted that there was no additional impairment for loss of pinch strength, based on
section 16-8a at page 508 of the A.M.A., Guides, because impairment due to loss of strength can
be combined with other impairments only if based on unrelated etiologic or pathomechanical
causes and decreased strength cannot be rated in the presence of decreased motion and painful
conditions. Using the Combined Values Chart at page 604, he combined the 6 percent
impairment for decreased range of motion with 5 percent for sensory loss resulting in 11 percent
impairment of the right thumb. Using Table 16-1 at page 438, Dr. Cohen found that 11 percent
impairment of the thumb converts to 4 percent impairment of the hand. He considered all the
physical findings in Dr. Wang’s report and referenced the applicable sections of the A.M.A.,
Guides. The Board finds that the medical evidence establishes that appellant has no more than
four percent impairment of his right hand.

11

On appeal, appellant contends that he should receive compensation for his loss of pinch strength because he can
pinch in only one direction and it is painful. When he attempts to pinch in another direction, his right thumb
dislocates and causes pain. Appellant’s loss of pinch strength affects his ability to perform his work with his
dominant right hand and to support any kind of weight over his head. However, there is no medical report of record
explaining why his loss of pinch strength is an impairing factor not considered adequately by other methods in the
A.M.A., Guides. Appellant also contends that he is entitled to compensation for the potential of developing arthritis
in his right thumb due to his accepted injury. In a case he cited as Cross v. Lavino Shipping, an employee was
awarded compensation based on the possibility of developing arthritis. The Board has held that entitlement to
benefits under one program or statute does not establish entitlement to benefits under the Act. See Daniel Deparini,
44 ECAB 657, 659-60 (1991).

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CONCLUSION
The Board finds that appellant has no more than four percent impairment of his right
hand for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 7, 2008 is affirmed.
Issued: October 21, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-1788
Issued: June 21, 2011

Case Submitted on the Record

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

JURISDICTION
On June 24, 2010 appellant filed a timely appeal of the February 22, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his occupational disease
claim. Pursuant to the Federal Employees’ Compensation Act1 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 back, neck and right shoulder injuries causally
related to factors of his federal employment.
On appeal, appellant contends that there is a conflict in medical opinion between his
physicians and OWCP’s referral physician. He further contends that OWCP’s referral
physician’s opinion was equivocal.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 14, 2008 appellant, then a 50-year-old safety and occupational health specialist,
filed an occupational disease claim alleging that on January 1, 2008 he became aware of his
back, neck and right shoulder conditions and realized that these conditions were caused by his
employment duties. He stopped work on January 15, 2008.
Appellant submitted medical reports dated October 31, 2007 through October 10, 2008
from physicians and physical therapists which addressed, among other things, diagnostic test
results and treatment regarding his right shoulder and arm, cervical and lumbar conditions.
In reports dated March 31 through May 21, 2008, Dr. Michael A. Franchetti, an attending
Board-certified orthopedic surgeon, obtained a history that appellant was severely visually
challenged. At work, appellant needed to lean forward on his desk until the computer screen was
two inches away in order to see it. He leaned with more weight on his right upper extremity. On
or about January 4, 2008 appellant began to experience right shoulder pain which worsened.
Dr. Franchetti listed his findings on physical examination and reviewed diagnostic test results.
He advised that appellant suffered from occupationally-related cervical strain with right cervical
radiculitis, lumbosacral strain and overuse, sprain and strain with bursitis and tendinitis, partial
rotator cuff tear and probable labral tear of the right shoulder. Dr. Franchetti concluded that
appellant was unable to work in his usual employment position due to the diagnosed conditions.
In a June 16, 2008 report, Dr. Robert W. Macht, a Board-certified surgeon, obtained a
history of a prior motor vehicle accident which resulted in injuries to appellant’s neck and back.
He also obtained a history of appellant’s medical background and reviewed diagnostic test
results. Dr. Macht noted that appellant worked in an awkward position at the computer due to
his poor eyesight. Appellant leaned on his right arm to be close to the computer. Dr. Macht
listed his findings on physical examination and diagnosed occupational rotator cuff tear and
possible labral tear of the right shoulder and musculoligamentous sprain of the neck and back.
He found no evidence of radiculopathy. Dr. Macht advised that there was a causal relationship
between the diagnosed conditions and appellant’s work duties as a safety specialist. He
determined that appellant had eight percent impairment of the right upper extremity and three
percent impairment of the left upper extremity based on the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001).
By letter dated August 13, 2008, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit factual and medical evidence,
including a rationalized medical report from an attending physician which described his
symptoms, examination and test results, diagnosis, treatment provided, effect of treatment and
opinion with medical reasons on how the diagnosed condition was caused or contributed to by
the claimed injury. OWCP also requested that the employing establishment submit factual
evidence regarding appellant’s claim.
Appellant submitted reports and a prescription dated April 28 through January 22, 2008
from physicians including, Dr. Fredric L. Salter, a Board-certified orthopedic surgeon and
Dr. Sheldon L. Margulies, a Board-certified neurologist, respectively, who found that he

2

sustained cervical and lumbar strains and post-traumatic migraines secondary to an April 22,
2006 motor vehicle accident.
In reports dated April 15 through August 5, 2008, Dr. Franchetti noted appellant’s
continuing complaints of back and neck pain. Appellant also had bilateral radicular and carpal
tunnel symptoms and right shoulder pain. Dr. Franchetti listed his findings on physical
examination and diagnosed work-related disc protrusion at L5-S1 with confirmed mild L4
bilateral radiculopathies and bilateral moderate L5-S1 radiculopathies worse on the left side. He
also diagnosed multilevel cervical spondylosis, stenosis, right C5-6 radiculopathy and bilateral
carpal tunnel syndrome. Dr. Franchetti advised that appellant was unable to work as a safety
specialist.
In a September 9, 2008 report, Dr. Macht stated that the neck and back injuries appellant
sustained due to the April 22, 2006 motor vehicle accident had resolved by history. He noted
appellant’s work duties which involved sitting at a desk and using a computer three quarters of
his eight-hour workday and copying and filing the rest of the workday while standing, walking,
bending, squatting and kneeling. Dr. Macht reiterated that appellant’s diagnosed neck, back and
right shoulder conditions were causally related to the stated work duties. Appellant’s poor
eyesight changed the mechanics of his neck and back and put additional stress on his neck and
right shoulder region. He consistently put the weight of his upper body on his right arm as he
leaned onto his desk. Dr. Macht concluded that since appellant did not participate in any outside
sports or hobbies and he did not have any other employment or volunteer work, his neck, back
and right shoulder conditions were causally related to his work duties.
By letter dated November 18, 2008, OWCP referred appellant, together with a statement
of accepted facts and the medical record, to Dr. William I. Smulyan, a Board-certified orthopedic
surgeon, for a second opinion to determine whether he sustained a medical condition caused,
aggravated, precipitated or accelerated by his federal employment.
In a February 10, 2009 report, Dr. Smulyan reviewed a history of appellant’s eye, neck,
back and right shoulder conditions. He also reviewed appellant’s medical records. On physical
examination of the head and neck, Dr. Smulyan reported that appellant denied any localizing
tenderness with palpation of the cervical spine. No localizing reflex changes were noted in the
upper limbs. Supple and symmetrical motion was noted in the elbows, wrists and hands. A
Tinel’s sign was negative over the median and ulnar nerves. On examination of the lumbar
spine, Dr. Smulyan reported that appellant stood smugly. Appellant had tenderness with
palpation of the lumbosacral junction mid-thoracic spine. Straight leg raising maneuvers were
negative. There was no localizing reflex changes noted in the lower limbs. Appellant exhibited
some mildly broad-based gait. A Trendelenburg’s test was negative. There was restriction of
flexion and extension in the lumbar spine.
Dr. Smulyan reported that appellant’s complaints were subjective in nature. There was
no anatomic correlation to appellant’s complaints. There was no electrical or radiographic
evidence to corroborate his complaints. Dr. Smulyan opined that appellant’s current orthopedic
problems were not caused, aggravated, accelerated or precipitated by his accepted work-related
duties. Appellant’s complaints were temporary in nature and there was no basis on which to
continue medical treatment. Dr. Smulyan concluded that appellant could perform his regular
work duties as a safety and occupational health specialist eight hours a day with no physical
3

restrictions. There was no permanent aggravation. Dr. Smulyan advised that the temporary
aggravation experienced by appellant ceased as of the date of his examination.
In a March 27, 2009 decision, OWCP denied appellant’s claim. It found that
Dr. Smulyan’s February 10, 2009 report constituted the weight of the medical opinion evidence
and established that the claimed back, neck and right shoulder conditions were not caused by his
accepted work-related duties.
By letter dated April 3, 2009, appellant, through his attorney, requested an oral hearing.2
In a November 18, 2009 report, Dr. Macht reiterated his prior opinion that appellant’s
diagnosed neck, back and right shoulders were caused by his work duties as a safety specialist.
In a February 22, 2010 decision, OWCP’s hearing representative affirmed the March 27,
2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his 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.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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
2

The record reveals that appellant subsequently requested a telephone hearing.

3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

4

identified by the claimant.6 Neither the fact that appellant’s condition became apparent during a
period of employment nor his belief that the condition was caused by his employment is
sufficient to establish a causal relationship.7
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.9
ANALYSIS
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion.
Appellant claimed that as a result of the accepted employment duties, he sustained back,
neck and right shoulder conditions. He was treated by Dr. Franchetti who reported that, as
appellant was visually impaired he tended to lean forward on his desk to view his computer
screen, thereby placing weight on this right upper extremity. Dr. Franchetti concluded that
appellant was unable to perform his usual work duties as a result of employment-related cervical
strain with right cervical radiculitis, lumbosacral strain and overuse, sprain/strain with bursitis
and tendinitis, partial rotator cuff tear and probable tear of the right shoulder.
Similarly, appellant was also treated by Dr. Macht, who found that his rotator cuff tear
and possible labral tear of the right shoulder and musculoligamentous sprain of the neck and
back were caused by the established work duties. Dr. Franchetti and Dr. Macht pointed out that
appellant’s impaired vision altered the mechanics of his neck by him leaning on the right to view
his computer screen and thereby placing stress on this area and the right shoulder region.
Additionally, Dr. Macht noted that three-fourths of appellant’s eight-hour workday consisted of
him sitting at his desk using his computer and that the remainder of the workday consisted of
him standing, walking, bending, squatting and kneeling to perform his job duties.
Dr. Smulyan, OWCP’s referral physician, opined that appellant’s current neck, back and
right shoulder problems were not caused, aggravated, accelerated or precipitated by the accepted
work-related duties. He stated that appellant experienced temporary aggravation of his
symptoms which ceased on the date of his examination. Dr. Smulyan further stated that there
was no anatomic correlation to appellant’s complaints. He related that there was no electrical or
radiographic evidence to corroborate appellant’s complaints and concluded that his complaints
were subjective in nature. Dr. Smulyan advised that further medical treatment was not necessary

6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

8

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

9

Manuel Gill, 52 ECAB 282 (2001).

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and appellant could perform his regular work duties as a safety and occupational health specialist
eight hours a day with no restrictions.
The Board finds that there is a conflict in medical opinion between Dr. Franchetti and
Dr. Macht, attending physicians and Dr. Smulyan, the physician making the examination for
OWCP, as to whether appellant sustained back, neck and right shoulder conditions due to the
accepted factors of his federal employment.10 The case will be remanded to OWCP for referral
to an impartial medical specialist. After such further development as deemed necessary, it shall
issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision due to an unresolved conflict
in medical opinion.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: June 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

10

Y.A., 59 ECAB 701 (2008); Bryan O. Crane, 56 ECAB 713 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 18-0788
Issued: July 22, 2019

Case Submitted on the Record

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

JURISDICTION
On March 1, 2018 appellant filed a timely appeal from a January 18, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1

The Board notes that, following the January 18, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: ”The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, during the pendency of this appeal, OWCP issued a May 13, 2019 nonmerit decision, which
denied reconsideration of the January 18, 2018 merit decision that is the subject of the current appeal. The Board and
OWCP may not simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626. See
Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s May 13,
2019 decision is set aside as null and void.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty as alleged.
FACTUAL HISTORY
On October 20, 2017 appellant, then a 45-year-old distribution operations supervisor
(DOS), filed an occupational disease claim (Form CA-2) for “other disorders due to repeated
trauma” while in the performance of duty.4 She noted that she first became aware of her condition
on October 1, 2017, and first realized it was related to factors of her federal employment on
October 3, 2017.
In an October 25, 2017 development letter, OWCP acknowledged receipt of appellant’s
claim, but noted that it had not received any other documentation. It advised her of the essential
elements to establishing entitlement to FECA benefits, and specifically requested that she provide
factual information regarding the circumstances of her alleged injury, as well as medical evidence
establishing a diagnosis causally related to the alleged employment injury/factor(s). OWCP
provided a questionnaire for appellant’s completion, and afforded her 30 days to submit the
requested evidence. By separate development letter of even date, it similarly requested
information from the employing establishment regarding her work activities.
OWCP subsequently received an October 5, 2017 initial evaluation report from Dr. Ed
Wolski, a pain management specialist. Dr. Wolski related appellant’s complaints of low back pain
radiating into her bilateral hips, knees, ankles, and feet. He indicated that she had worked as a
mail clerk for the employing establishment for 18 years and as a supervisor for the past 3 years.
Dr. Wolski conveyed that appellant’s employment involved standing for eight to nine hours a day,
five days a week. He described that, as a mail clerk, her daily essential tasks involved scanning
mail placard documents, pushing and pulling the automated postal center (APC) equipment,
receiving, sorting, processing, and routing incoming and outgoing mail, and lifting and carrying
mail flats or bags weighing up to 50 pounds. Appellant also reported that she walked considerable
distances each day on concrete surfaces. Dr. Wolski reviewed her history and conducted an
examination. He observed palpable tenderness across the lumbar axial spine at the L3, L4, L5,
and S1 levels and some tenderness across the bilateral facet joints. Range of motion showed
radiating pain past both knees. Dr. Wolski also reviewed October 5, 2017 x-rays of appellant’s
bilateral hips, knees, ankles, feet, and her lumbar spine. He diagnosed lumbar spondylosis, lumbar
radiculitis, bilateral hip osteoarthritis, bilateral knee osteoarthritis, bilateral ankle osteoarthritis,
and bilateral plantar fasciitis. Dr. Wolski opined that appellant sustained work-related injuries to
her low back, hips, knees, ankles, and feet as a direct result of her normal working duties as a mail
clerk and supervisor over the past 21 years.

4
Although the claim form noted that a narrative statement was attached, no such statement accompanied appellant’s
Form CA-2.

2

In an October 17, 2017 work capacity evaluation (OWCP-5c), Dr. Wolski indicated that
appellant could work an eight-hour day with restrictions on walking, standing, twisting and
squatting.
OWCP also received a series of magnetic resonance imaging (MRI) scans dated
November 16 and 17, 2017 of appellant’s lumbar spine, hips, and knees.
In a December 5, 2017 work capacity evaluation (OWCP-5c), Dr. Wolski extended
appellant’s work restrictions through January 2, 2018.
OWCP did not receive the requested factual information from either appellant or the
employing establishment.
By decision dated January 18, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that the events occurred in the
performance of duty as described. As such, it concluded that the requirements had not been met
to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,6 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”9 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit:
(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

5

Id.

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

20 C.F.R. § 10.5(q).

3

evidence establishing that the diagnosed condition is causally related to the identified employment
factors.10
The employee’s burden of proof includes the submission of a detailed description of the
employment factors or conditions, which she believes caused or adversely affected a condition for
which compensation is claimed.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty, as alleged.
In the Form CA-2, appellant described her injury as “other disorders due to repeated
trauma.” However, she did not submit any additional factual evidence identifying specific
employment factors or activities alleged to have caused or contributed to her claimed condition(s).
By letter dated October 25, 2017, OWCP informed appellant that the record was insufficient to
establish that she experienced any employment factors that were alleged to have caused an injury.
It requested that she complete an attached questionnaire describing her employment-related
activities and explain how these activities contributed to the claimed conditions. Appellant,
however, did not respond to OWCP’s development letter.
As previously noted, a claimant has the burden of proof to submit a detailed description of
the employment factors or conditions which he or she believed caused or adversely affected a
condition for which compensation is claimed.12 As appellant has not provided a factual statement
describing in detail the employment factors alleged to have caused the claimed conditions, the
Board finds that she has not met her burden of proof to establish the factual element of her claim.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty as
alleged.

10

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

J.C., Docket No. 16-1663 (issued January 18, 2017); P.G., Docket No. 15-1345 (issued August 23, 2016); Lori A.
Facey, 55 ECAB 217 (2004).
12

Id.

13
As appellant has not met her burden of proof to establish the factual aspects of her claim the Board need not
review the medical evidence of record.

4

ORDER
IT IS HEREBY ORDERED THAT the January 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Murfreesboro, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1537
Issued: January 14, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

On July 9, 2012 appellant filed a timely appeal from a March 30, 2012 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. The Board docketed the appeal as No. 12-1537.
OWCP accepted that appellant, then a 21-year-old nursing assistant, sustained an L5-S1
herniated nucleus pulposus as the result of a September 17, 1993 employment injury. By
decision dated April 22, 2004, it denied his claim for a schedule award based on the opinion of
the impartial medical examiner, Dr. Eston G. Norwood, a Board-certified neurologist. By
decision dated October 21, 2004, OWCP denied appellant’s claim for wage-loss compensation
for the period June 29, 1998 to May 10, 1999 on the grounds that the disability was unrelated to
his accepted employment injury. In decisions dated March 10, 2011, it denied modification of
the April 22 and October 21, 2004 decisions. By decision dated March 30, 2012, OWCP denied
appellant’s request for merit review of the denial of his claim for a schedule award and the denial
of wage-loss compensation for the period June 29, 1998 to May 10, 1999.
The Board, having reviewed the case record submitted by OWCP, finds that the record is
incomplete as the medical reports identified by OWCP as creating a conflict in the medical
opinion on the issue of appellant’s schedule award and subsequent referral to Dr. Norwood, as
the impartial medical examiner. The Board, therefore, finds that the appeal docketed as No. 12-

1537 is not currently in posture for a decision as the missing evidence would not allow for an
informed adjudication on the part of this Board. Because the record forwarded by OWCP would
not allow the Board an opportunity for an informed adjudication of the appeal, the case record
will be returned to OWCP for reconstruction and proper assemblage of the record and, following
any necessary further development, the issuance of an appropriate decision.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 30, 2012 decision be set aside and the case remanded for further action in conformance
with this order of the Board to be followed by an appropriate decision.
Issued: January 14, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTIC AGENCY, ROBINS AIR FORCE
BASE, Warner Robins, GA, Employer
__________________________________________

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

Docket No. 17-1235
Issued: February 15, 2018

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 May 12, 2017 appellant, through counsel, filed a timely appeal from December 7,
2016 and March 23, 2017 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation under
5 U.S.C. § 8106(c)(2), effective December 8, 2016; and (2) whether appellant has established
intermittent disability from work from November 29 to December 9, 2016 due to her accepted
conditions.
FACTUAL HISTORY
On September 19, 2012 appellant, then a 42-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that, on September 17, 2012, she injured her back
in the performance of duty. OWCP accepted the claim for lumbar sprain, lumbar or thoracic
neuritis or radiculitis, disorders of the sacrum, and a right disc herniation at L5-S1. Appellant
stopped work on September 17, 2012, returned to part-time limited-duty employment on May 3,
2013 and stopped work again on January 7, 2014. OWCP paid her compensation on the periodic
rolls beginning March 9, 2014.
On April 1, 2013 Dr. Daxes Banit, a Board-certified orthopedic surgeon, performed a
discectomy on the right side at L5-S1. On August 24, 2015 he performed a spinal fusion at
L5-S1, a removal of hardware, a revision decompression at L5-S1 with laminotomy and
foraminotomy, and a harvesting of the right iliac crest graft.3
In a January 14, 2016 progress report, Dr. Banit provided examination findings and
diagnosed low back pain and lumbago with right sciatica.4 In an April 13, 2016 progress report,
he diagnosed lumbago with right sciatica and low back pain. Dr. Banit related that diagnostic
studies revealed a solid fusion at L5-S1. He opined that appellant had reached maximum
medical improvement (MMI).

3

On January 29, 2015 Dr. Alexander N. Doman, a Board-certified orthopedic surgeon and OWCP referral
physician, found that appellant had no residuals of her work injury. OWCP, on March 20, 2015, notified her of its
proposed termination of her compensation as the weight of the evidence established that she had no further workrelated disability. In an April 1, 2015 report, Dr. Banit opined that diagnostic studies showed “a lack of bridging
bone across the L5-S1 interspace.” He advised that appellant was disabled from work due to the lack of healing at
L5-S1, which he advised would require surgery. OWCP determined that a conflict existed between Dr. Doman, who
found that appellant could perform her usual employment, and Dr. Banit, who found that she could not work
pending further surgery. On June 5, 2015 Dr. Gary Hattaway, a Board-certified orthopedic surgeon and impartial
medical examiner, diagnosed status post decompression and fusion at L5-S1 with pseudoarthrosis of the fusion
mass. He concurred with Dr. Banit that appellant required surgery and probably a “new internal fixation from L5 to
S1” as a result of her work injury.
4

On February 4, 2016 OWCP referred appellant to Dr. Sarveswar I. Naidu, a Board-certified orthopedic surgeon,
for a second opinion examination. In a report dated February 26, 2016, Dr. Naidu diagnosed lumbar radiculopathy
with continued sciatica and degenerative lumbar disc disease unrelated to the work injury. He opined that appellant
was totally disabled from work, but could be reevaluated in three months after further medical treatment and
physical therapy. Dr. Naidu determined that her lumbar strain had resolved, but that she still had residuals of the
lumbosacral radiculitis, disorders of the sacrum, and right disc herniation at L5-S1.

2

An April 26, 2015 functional capacity evaluation (FCE) indicated that appellant could
perform light duty with no “prolong[ed] standing, walking, stair climbing, squatting, and
kneeling.”
On May 12, 2016 Dr. Banit reviewed the FCE findings and advised that appellant could
not return to her date-of-injury employment. In a report dated July 1, 2016, he related that the
FCE demonstrated that she could work at a light level with no extensive walking, standing,
climbing, squatting, or kneeling.5
The employing establishment, on August 26, 2016, offered appellant a modified position
as a packer in accordance with the findings of the FCE. The position description indicated that it
required “a very limited amount of standing, stooping, and bending” and that physical
restrictions would be accommodated.
In a September 1, 2016 response, appellant declined the offered position, noting that she
had applied for disability retirement and to the Social Security Administration for benefits as a
result of her medical condition.
By letter dated October 4, 2016, OWCP advised appellant that it had found the position
of packer offered by the employing establishment on August 26, 2016 to be suitable. It afforded
her 30 days to accept the position or provide reasons for her refusal. OWCP informed appellant
of the penalty for refusing suitable work under section 8106(c)(2).
On November 4, 2016 appellant refused the position. She questioned how a short FCE
could determine her ability to work a full day and described her continued symptoms.
OWCP, on November 9, 2016, notified appellant that her reasons for refusing the
position were not acceptable and provided her 15 days to accept the position or have her
compensation terminated.
In a letter dated November 22, 2016, appellant informed OWCP that she was accepting
the position of packer.
The employing establishment advised OWCP in a report of work status (Form CA-3) that
appellant had returned to work on November 28, 2016. On December 2, 2016 it clarified that
she had resumed work on November 29, 2016 rather than November 28, 2016. Appellant was
currently off work.
By letter dated December 5, 2016, OWCP advised appellant that it had stopped her
compensation, effective November 29, 2016, based on her return to work.
On December 5, 2016 the employing establishment telephoned OWCP and related that
appellant worked for one hour on November 29, 2016 and then left work for the emergency
room. Appellant did not work on November 28, 2016, but was at the facility “to go to the health
care….”
5

Dr. Banit continued to provide progress reports describing his treatment of appellant for her low back condition.

3

By decision dated December 7, 2016, OWCP terminated appellant’s entitlement to wageloss compensation and schedule award benefits, effective December 8, 2016, as she had
abandoned suitable work under section 8106(c)(2). It noted that she returned to work on
November 29, 2016, but stopped work that day without showing that she sustained a recurrence
of disability or otherwise explaining her inability to perform her job duties.6
In a medical evaluation of work status form dated November 29, 2016, received by
OWCP on December 19, 2016, Dr. Marvin Taylor, an employing establishment physician
specializing in occupational medicine, found that appellant could perform the offered position.
On November 30, 2016 Dr. Jonathan Velasquez, a Board-certified internist, opined that
appellant could resume work on December 2, 2016 without restrictions. Dr. Dwayne Greene,
Board-certified in emergency medicine, evaluated her on December 6, 2016 in the emergency
room for low back and right leg pain. He noted that appellant had resumed work and believed
the “new job has contributed to the increased pain.” In a December 6, 2016 return to work slip,
Dr. Greene advised that she could return to work on December 8, 2016 without restrictions.
In a December 6, 2016 internal e-mail, the employing establishment related that on
November 28, 2016 appellant checked with medical services to get her restrictions into the
system, but performed no work. On November 29, 2016 appellant received a tour of the facility
at 3:30 p.m. and left at 4:00 p.m., the end of her shift. On November 30, 2016 she left work at
noon after telling her supervisor that she needed to go to the emergency room due to back pain.
Appellant notified her supervisor that the physician wanted her off work until December 2, 2016.
She returned to work on December 5, 2016 and provided her supervisor with medical
documentation showing that she could return to work on December 2, 2016, even though she had
called in sick that date. At 10:30 a.m. appellant left work after telling management that she did
not feel well. On December 6, 2016 she arrived in the work area at noon and gave her supervisor
a physician’s note indicating that she could work with restrictions.
Dr. Banit, on December 6, 2016, discussed appellant’s complaints of increased pain due
to walking on the job. He diagnosed lumbar radiculopathy, low back pain, and lumbago with
right sciatica. In a form report dated December 6, 2016, Dr. Banit advised that appellant could
resume work with restrictions in accordance with the FCE.
In a December 27, 2016 report of work status, the employing establishment indicated that
appellant stopped work on November 29, 2016 and was “in and out” of work until December 6,
2016, when she resumed work with restrictions.
Appellant, on December 27, 2016, related that she reported to work on November 28,
2016 to be “cleared by the base physician to return to work.” She worked seven hours on
November 28, 2016. Appellant worked from November 29 to December 8, 2016, but took some
time off on physician’s advice due to pain. She worked eight hours for the first time on
December 8, 2016. On December 29, 2016 appellant advised OWCP that she was working and
wanted to continue, but experienced constant pain.
6
OWCP referred to an August 26, 2016 report from a physician; however, this appears to be a typographical
error.

4

On December 30, 2016 appellant filed a claim for intermittent compensation from
November 28 to December 9, 2016. A time analysis (Form CA-7a) indicates that she work four
hours and used four hours of leave without pay (LWOP) on November 30, 2016, used eight
hours of LWOP on December 1, 2, 7, and 8, 2016, four and a half hours of LWOP on
December 5, 2016, three hours of LWOP on December 6, 2016, and five hours of LWOP on
December 9, 2016.
OWCP, on January 9, 2017, paid appellant wage-loss compensation for eight hours on
November 28, 2016, four hours on November 30, 2016 for a medical appointment, and three
hours on December 6, 2016 for a medical appointment.7 It advised her that the medical evidence
of record was insufficient to support compensation for the remaining hours claimed.
By decision dated March 23, 2017, OWCP denied appellant’s claim for wage-loss
compensation for intermittent disability from November 29 to December 9, 2016.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.8 It terminated appellant’s compensation under section
8106(c)(2) of FECA,9 which provides that a partially disabled employee who refuses or neglects
to work after suitable work is offered to, procured by or secured for the employee is not entitled
to compensation.10 To justify termination of compensation, it must show that the work offered
was suitable and must inform appellant of the consequences of refusal to accept such
employment.11 Section 8106(c) will be narrowly construed as it serves as a penalty provision,
which may bar an employee’s entitlement to compensation based on a refusal to accept a suitable
offer of employment.12
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of proof to show that such refusal or failure to work was reasonable or justified.13
Section 10.516 of OWCP’s regulations provide that it will advise the employee that the work
offered is suitable and provide 30 days for the employee to accept the job or present any reasons
to counter OWCP’s finding of suitability.14 Thus, before terminating compensation, OWCP
7

Appellant, on January 4, 2017, requested an oral hearing before an OWCP hearing representative. On May 30,
2017 OWCP advised her that it had cancelled her request for an oral hearing as she had appealed the matter to the
Board and Board review took precedence.
8

Linda D. Guerrero, 54 ECAB 556 (2003).

9

Supra note 2.

10

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

11

Ronald M. Jones, 52 ECAB 190 (2000).

12

Joan F. Burke, 54 ECAB 406 (2003).

13

20 C.F.R. § 10.517(a); see supra note 11.

14

Id. at § 10.516.

5

must review the employee’s proffered reasons for refusing or neglecting to work.15 If the
employee presents such reasons and OWCP finds them unacceptable, it will offer the employee
an additional 15 days to accept the job without penalty.16
Once OWCP establishes that the work offered is suitable, the burden shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.17 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.18 OWCP
procedures state that acceptable reasons for refusing an offered position may include medical
evidence of inability to do the work.19
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly terminated appellant’s compensation benefits for
abandoning suitable work. As a penalty provision, section 8106(c) should be narrowly construed
and not lightly invoked.20
OWCP accepted that, on September 17, 2012, appellant sustained lumbar sprain, lumbar
or thoracic neuritis or radiculitis, disorders of the sacrum, and a right disc herniation at L5-S1. It
paid her compensation effective March 9, 2014 on the periodic rolls. Dr. Banit performed a
discectomy at L5-S1 on the right side on April 1, 2013 and a fusion and revision decompression
at L5-S1 with a laminectomy and foraminotomy on August 24, 2015.
In an April 13, 2016 report, Dr. Banit found that appellant was at MMI. He diagnosed
lumbago with sciatica on the right side and low back pain. Dr. Banit advised that studies showed
a solid fusion at L5-S1 and noted that appellant’s S1 joint issue was not work related. An FCE
performed on April 26, 2016 indicated that she could work light duty without extensive standing,
walking, climbing, squatting, or kneeling. Dr. Banit reviewed the FCE on May 12, 2016 and
concurred with its findings.
The employing establishment offered appellant a modified packer position on August 26,
2016 in accordance with the restrictions of the FCE. Appellant accepted the position on
November 22, 2016, underwent an examination at the employing establishment’s clinic on
November 28, 2016, and returned to work on November 29, 2016.

15

See Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

16

Supra note 14; see Sandra K. Cummings, 54 ECAB 493 (2003).

17

20 C.F.R. § 10.517(a).

18

Gayle Harris, 52 ECAB 319 (2001).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(4)
(June 2013).
20

See Stephen A. Pasquale, 57 ECAB 396 (2006).

6

On December 5, 2016 the employing establishment advised OWCP by telephone that
appellant worked for one hour on November 29, 2016 and then stopped work and went to the
emergency room. Based on this information, OWCP terminated her compensation for
abandoning suitable work. The employing establishment, however, did not address whether
appellant had taken leave to go to the emergency room or whether she had subsequently returned
to work. Where it authorizes a claimant’s absence from duty, there is no basis for finding
abandonment of suitable work under section 8106(c)(2).21 OWCP, consequently, did not have
sufficient evidence to find that appellant abandoned suitable work. Additionally, while it
followed proper procedures in offering the suitable position to her, it did not provide her with the
notice necessary to establish that she had abandoned suitable work.22 OWCP’s procedures
provide that, if abandonment of the job is not deemed justified, it must so advise the claimant
and allow her the opportunity to return to work.23
Subsequent to OWCP’s termination of appellant’s compensation, it received a
December 6, 2016 e-mail from the employing establishment. The employing establishment
related that it gave her a tour of the facility for a half hour on November 29, 2016 and that she
left work at noon on November 30, 2016 to go to the emergency room due to back pain. A
physician took appellant off work until December 2, 2016. Appellant resumed work on
December 5, 2016 and provided medical documentation addressing her absence. She left work
later that day, but returned to work on December 6, 2016 with restrictions. An official
breakdown of hours on a time analysis (Form CA-7a) establishes that the employing
establishment granted her leave without pay for the hours lost from work from November 30
through December 9, 2016. Appellant informed OWCP on December 29, 2016 that she was still
working, but was in pain.
As the Board held in the case Dawn L. Westmoreland,24 where the employing
establishment authorizes a claimant’s absence from duty, there is no basis for finding neglect of
suitable work under 5 U.S.C. § 8106(c)(2). The Board found no more neglect than if the
employing establishment had authorized the use of annual leave to cover the absences in
question.25 As appellant accepted the position and resumed work, OWCP improperly terminated
her compensation for abandoning suitable work under section 8106(c).26
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.27 For each period of
21

See N.B., Docket No. 14-1778 (issued July 27, 2015); Dawn L. Westmoreland, 56 ECAB 446 (2005).

22

20 C.F.R. § 10.516; see Y.S., Docket No. 08-0336 (issued June 23, 2008).

23

Supra note 19 at Chapter 2.814.8(d) (June 2013).

24

56 ECAB 446 (2005); see also S.G., Docket No. 08-1992 (issued September 22, 2009).

25

See P.A., Docket No. 15-1675 (issued December 15, 2015).

26

See Dawn L. Westmoreland, supra note 21.

27

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

7

disability claimed, the employee has the burden of proof to establish that she was disabled for
work as a result of the accepted employment injury.28 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.29
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.30 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.31 An employee who has a physical impairment causally related to her federal
employment, but who nonetheless has the capacity to earn the wages that she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.32 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.33
ANALYSIS -- ISSUE 2
Appellant filed a claim for compensation for intermittent time lost from work from
November 28 to December 9, 2016. OWCP paid her compensation for eight hours on
November 28, 2016, four hours on November 30, 2016 for a medical appointment, and three
hours on December 6, 2016 for a medical appointment. It denied appellant’s request for wageloss compensation for four hours on November 29, 2013 and for intermittent hours lost from
December 2 to 9, 2013.
Appellant has not submitted sufficient evidence to support that her claim for intermittent
disability from work on November 29 and December 2 to 9, 2013. As noted, the Board will not
require OWCP to pay compensation for disability in the absence of any medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow employees to self-certify their disability and entitlement to
compensation.34
28

See Amelia S. Jefferson, id.

29

See Edward H. Horton, 41 ECAB 301 (1989).

30

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

31

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

32

Merle J. Marceau, 53 ECAB 197 (2001).

33

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

34

See Fereidoon Kharabi, id.

8

Dr. Velasquez provided a return to work form on November 30, 2016 indicating that
appellant could return to work without restrictions on December 2, 2016. As he did not address
the issue of disability for any specific period, his report is of little probative value.35
On December 6, 2016 Dr. Greene treated appellant for chronic low back and right leg
pain. He noted that she had increased symptoms following her return to work. Dr. Greene
diagnosed chronic back pain and found that appellant could return to work on December 8, 2016
without limitations. He did not specifically attribute any period of disability to the accepted
employment injury. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of diminished probative value on the issue of causal relationship.36
Dr. Banit evaluated appellant on December 6, 2016 and found that she could resume
work on that date in accordance with the FCE. OWCP paid her for the time lost from work for
the medical appointment. Dr. Banit found that appellant could perform her modified position,
and thus his opinion is insufficient to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s compensation effective
December 8, 2016 under section 8106(c)(2) as she abandoned suitable work. The Board further
finds that she has not established that she is entitled to wage-loss compensation from
November 29 through December 9, 2016.

35

See W.M., Docket No. 16-1658 (issued May 3, 2017).

36

See S.E., Docket No. 08-2214 (issued May 6, 2009).

9

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed and the December 7, 2016 decision is reversed.
Issued: February 15, 2018
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHA VETERANS HOSPITAL,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1551
Issued: May 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 27, 2016 appellant, through counsel, filed a timely appeal of a July 20, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability
from December 20, 2008 through December 29, 2014 due to his accepted employment injury of
aggravation of preexisting bilateral degenerative knee arthritis.
On appeal counsel argued that appellant had established that he was totally disabled as
the employing establishment removed his light-duty position forcing him to accept disability
retirement, and that appellant had properly elected to receive FECA benefits. He further argued
that OWCP improperly ignored medical evidence in the July 20, 2016 decision and that appellant
had established a consequential emotional condition.
FACTUAL HISTORY
This case has previously been before the Board. On January 29, 2009 appellant, then a
50-year-old housekeeper aid, filed an occupational disease claim (Form CA-2) alleging that he
developed bilateral aggravation of degenerative joint disease and torn menisci in his knees due to
his employment activities. He claimed to have first became aware of his condition on March 24,
2006 and first attributed his condition to his federal employment on July 10, 2008. On the
reverse of the form, appellant’s supervisor indicated that appellant had retired from the
employing establishment on December 19, 2008 receiving disability retirement benefits from the
Office of Personnel Management (OPM).3 The record reflects that on December 3, 2008
appellant had accepted a temporary limited-duty assignment due to a previously accepted right
hand injury working eight hours a day with no use of his right hand.4 Appellant’s supervisor
noted that appellant had reported no work-related injuries or illness to his knees prior to his
retirement.
OWCP’s statement of accepted facts (SOAF) found that appellant’s regular-duty position
required that all of his work was performed while standing or walking. This position also
required sustained pushing, pulling, walking, bending, stooping, climbing, and lifting. Appellant
was also required to lift up to 40 pounds and occasionally over 50 pounds. OWCP noted that
starting in 2005 appellant began to perform limited-duty work as he could no longer kneel to
clean baseboards and that at the time of his retirement in 2008 he was performing a one-handed
job assignment.
In a report dated March 29, 2011, OWCP’s second opinion physician, Dr. Bong S. Lee,
found that appellant was disabled from his original job because of the advanced osteoarthritis of
both knees. He indicated that appellant could walk and stand for four hours a day each, bend and
stoop for four hours, as well as push, pull, and lift up to 20 pounds for four hours a day. Dr. Lee
restricted appellant’s squatting, kneeling, and climbing to two hours each.
3

OPM indicated on December 4, 2008 that it found appellant to be disabled for his position as a housekeeping aid
due to bilateral knee condition.
4

Appellant injured his right hand on December 2, 2008. The employing establishment provided him with a lightduty assignment on December 3, 2008 with no use of his right hand. OWCP accepted that appellant sustained an
employment-related right hand fracture in a separate claim. OWCP File No. xxxxxx532. OWCP also accepted
bilateral carpal tunnel syndrome on September 22, 2011 in OWCP File No. xxxxxx081.

2

In an April 8, 2013 decision,5 the Board found that there was an unresolved conflict of
medical opinion evidence between appellant’s physician, Dr. Richard Zamarin, a Board-certified
orthopedic surgeon, and Dr. Lee, the second opinion physician, regarding whether appellant’s
knee condition was causally related to his accepted employment activities. The Board set aside
an October 31, 2012 OWCP decision and remanded the case for OWCP to refer the case to an
impartial medical examiner.
On July 11, 2013 OWCP referred appellant, a statement of accepted facts (SOAF), and a
list of questions to Dr. Andrew J. Collier, a Board-certified orthopedic surgeon, for an impartial
medical examination regarding the cause of appellant’s bilateral knee conditions. Dr. Collier
examined appellant on July 24, 2013 and noted his work history, employment duties and history
of knee pain. He noted that appellant had marked bilateral genu varum with slight
hyperextension on the left. Dr. Collier stated that both knees demonstrated minimal synovitis, no
effusion, erythema or warmth with limited range of motion. He found marked varus, medial
osteophytes, medial collapse, negative McMurray’s, Lachman and Drawer signs. Dr. Collier
stated that appellant had a waddling gait with his cane. He diagnosed severe degenerative
arthritis in both knees. Dr. Collier stated:
“[Appellant] had no work-related injuries, traumas, etc., to cause this condition.
The most likely cause of his symptomatology is his weight and obesity. Every
step he takes of his life does contribute to his arthritis. Hence, his work-related
activities would add to his condition but are not the sole cause of his condition. It
does play a minor role. [Appellant] does have severe degenerative arthritis in
both knees, again not caused by his work or work activities. This is not
industrial.”
He completed a work capacity evaluation and indicated that appellant could work eight hours a
day with restrictions. Appellant could stand and walk for one hour each a day each. He could
not bend or stoop, operate a motor vehicle at work, push, pull, squat, kneel, or climb. Appellant
could drive to and from work for one hour a day. He could lift up to 10 pounds for eight hours a
day.
By decision dated August 8, 2013, OWCP denied appellant’s claim finding that, as
Dr. Collier opined that appellant’s severe degenerative arthritis in both knees was due to his
weight and not caused by his work or work activities, appellant had not met his burden of proof
to establish his occupational disease claim. The Board reviewed the August 8, 2013 decision on
June 10, 2014 and found that OWCP had not provided Dr. Collier with adequate information and
remanded the case for OWCP to request a supplemental report.6
OWCP requested a supplemental report from Dr. Collier on September 10, 2014.
Dr. Collier responded on September 23, 2014 and noted that appellant had severe degenerative
arthritis in both knees and that he had sustained an employment-related acceleration of his
preexisting condition. He noted that appellant’s condition was permanent.
5

Docket No. 13-206 (issued April 8, 2013).

6

Docket No. 13-1979 (issued June 10, 2014).

3

On October 9, 2014 OWCP accepted appellant’s claim for aggravation of preexisting
bilateral degenerative knee arthritis. Appellant completed an election of benefits form on
March 20, 2015 and filed a claim for compensation (Form CA-7) benefits effective
December 20, 2008. On the reverse of the form, the employing establishment indicated that
appellant had retired due to medical disability, last worked on December 19, 2008, and used
leave without pay from December 20 to 29, 2014. Appellant also requested a schedule award on
March 20, 2015 and submitted medical evidence regarding his permanent impairment.
Appellant filed claims for compensation (Form CA-7) requesting wage-loss
compensation from December 20, 2008 through December 29, 2014.
In a letter dated June 5, 2015, OWCP requested additional medical evidence in support of
appellant’s claim for total disability for the period beginning December 20, 2008. Counsel
responded and argued that the employing establishment separated appellant onto disability
retirement.
By decision dated January 7, 2016, OWCP denied appellant’s disability claim. Also on
January 7, 2016 it granted appellant a schedule award for 26 percent permanent impairment of
both his right and left lower extremities. The period of the schedule awards was from
December 30, 2014 through November 12, 2017.
On June 21, 2016 counsel requested reconsideration of the January 7, 2016 decision
denying wage-loss compensation. He alleged that the employing establishment had refused to
accommodate appellant’s bilateral knee conditions. Counsel contended that appellant was
approved for disability retirement beginning in 2008 based on the employing establishment’s
certification that there was no work within appellant’s restrictions. He resubmitted Dr. Collier’s
September 23, 2014 report and work capacity evaluation, and a request for treatment for an
alleged emotional condition.
On June 21, 2016 OWCP received verification that on December 4, 2008 OPM had
approved appellant’s application for disability retirement due to his bilateral knee condition.
Appellant indicated that he had not requested accommodations from the employing
establishment and that he used the chairs with rollers in the offices he cleaned to help him to
clean and obtain the trash in those areas. His supervisor at that time had completed a statement
on June 12, 2008 in connection with the application for disability retirement that appellant’s
performance of his position of housekeeping aid was fully successful. He noted that appellant
was observed performing his housekeeping duties while sitting down, including emptying trash,
taping biohazard boxes, and mopping floors. The supervisor noted that appellant’s absence
required him to shift workloads and requirements. Appellant also indicated that appellant had
received a sick leave restriction letter and a sick leave warning letter. In response to the question
as to whether any efforts had been made to accommodate appellant or whether appellant had
been reassigned to a new permanent position, the employing establishment response, “N/A.” On
an accompanying portion of an Agency Certification of Reassignment and Accommodation
Efforts, an authorized agency official checked a box marked “No” in response to the question of
whether reasonable effort for accommodation had been made, this option further noted “the
medical evidence presented to the agency shows that accommodation is not possible due to

4

severity of medical condition and the physical requirements of the position.” The reverse of this
form, which would have indicated who had signed the form, is not contained in the record.
Counsel also submitted a portion of a report from Dr. Harry A. Doyle, a Board-certified
psychiatrist, dated June 20, 2016, diagnosing adjustment disorder with depressed mood and
attributing this condition to appellant’s bilateral wrist pain, bilateral carpal tunnel syndrome, and
aggravation of preexisting bilateral degenerative knee arthritis.
By decision dated July 20, 2016, OWCP denied modification of its prior decision and
determined that appellant had failed to submit the necessary medical opinion evidence to
establish total disability from December 20, 2008 through December 29, 2014 due to his
accepted employment injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.7 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.8
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.9 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurts too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.10 The Board will not require OWCP to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.11
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.12 Rationalized medical evidence is medical
7

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

8

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
9

See Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Id.

11

Id.

12

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

5

evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.13 Neither the fact that a disease
or condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish total disability
from December 20, 2008 through December 29, 2014 due to his accepted employment injury of
aggravation of preexisting bilateral degenerative knee arthritis.
On October 9, 2014 OWCP accepted appellant’s claim for aggravation of his preexisting
degenerative bilateral knee arthritis. The SOAF relates that appellant was required to do all the
duties of a housekeeping aid, but beginning in 2005 he was excused from cleaning baseboards as
he could no longer do that. On December 3, 2008 appellant accepted a temporary limited-duty
assignment at the employing establishment working eight hours a day with no use of his right
hand. He completed an application for disability retirement on May 7, 2008 and on December 4,
2008 OPM approved his disability retirement due to his bilateral knee condition. Appellant
retired from the employing establishment on December 19, 2008 and began receiving disability
retirement benefits.
Appellant must establish that his total disability on and after December 19, 2008 was due
to his accepted employment-related condition of aggravation of preexisting bilateral degenerative
knee arthritis. There is no medical evidence supporting appellant’s total disability for work
during the period claimed. In the December 8, 2008 report, Dr. Zamarin did not address
appellant’s ability to work. On March 29, 2011 OWCP’s second opinion physician, Dr. Lee,
found that appellant was only partially disabled from his original job because of the advanced
osteoarthritis of both knees. Dr. Collier, the impartial medical examiner, with regard to knee
conditions, completed a report on July 24, 2013 and opined that appellant was capable of
working with restrictions. There is no medical evidence in the record supporting appellant’s
claim for total disability on or after December 20, 2008.
Counsel argued that appellant had accepted OPM disability retirement benefits because
the employing establishment withdrew his light-duty assignment. Appellant has not submitted
factual evidence supporting this allegation. In fact, shortly before his disability retirement, the
employing establishment provided appellant with a light-duty assignment on December 3, 2008
due to his right hand injury. This change of work requirements suggests that the employing
establishment was willing to provide work within appellant’s established medical restrictions,
13

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

14

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

6

but that he chose to leave his December 3, 2008 light-duty position and accept disability
retirement benefits.
Counsel further argued that OWCP failed to accept appellant’s consequential emotional
condition. As OWCP has not issued a final decision on this issue, the Board will not address this
claim for the first time on appeal.15
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
from December 20, 2008 through December 29, 2014 due to his accepted employment injury of
aggravation of preexisting bilateral degenerative knee arthritis.
ORDER
IT IS HEREBY ORDERED THAT the July 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

20 C.F.R. § 501.2(c).

7


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

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

Docket No. 19-1714
Issued: March 2, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 11, 2019 appellant filed a timely appeal from an August 8, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On June 25, 2019 appellant, then a 53-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained sharp pain and swelling in her shoulder due to
factors of her federal employment, including pulling down mail. She indicated that she first
became aware of her condition and its relationship to her federal employment on May 22, 2019.
On the reverse side of the claim form, the employing establishment indicated that appellant stopped
work on May 22, 2019 and returned to limited-duty work on May 25, 2019. It noted that her
current limited-duty restrictions included no reaching above her shoulder and no lifting over 10
pounds.
A May 22, 2019 accident report from appellant’s supervisor related that appellant
experienced back and shoulder pain while lifting heavy parcels and casing mail.
In a May 23, 2019 work status report, Dr. Kevin C. Loh, an osteopathic physician Boardcertified in occupational medicine, noted that appellant was injured on May 22, 2019. He
diagnosed a thoracic spine strain, a lumbar muscle strain, and a right shoulder sprain. Dr. Loh
stated that appellant should only reach above her right shoulder for up to 25 percent of her shift
and should not lift, push, or pull anything weighing over 20 pounds through June 6, 2019. He
responded “yes” to a question asking if appellant’s diagnoses were the result of an industrial
exposure.
In a June 6, 2019 work status report, Dr. Loh repeated appellant’s date of injury and his
previous diagnoses. He modified her work restrictions relating that she should not reach above
her right shoulder or lift, push, or pull anything weighing over 10 pounds through June 20, 2019.
Dr. Loh again responded “yes” to a question asking if appellant’s diagnoses were the result of an
industrial exposure.
In another June 20, 2019 work status report, Dr. Loh repeated appellant’s date of injury
and indicated that she was diagnosed with a right shoulder sprain and a thoracic spine strain. He
related that his work restrictions would be extended through July 11, 2019. Dr. Loh also referred
appellant to physical therapy to treat her right shoulder sprain. He related “yes” in response to a
question asking if appellant’s diagnoses were the result of an industrial exposure.
In a development letter dated July 3, 2019, OWCP advised appellant of the factual and
medical deficiencies of her claim. It informed her of the medical evidence necessary to establish
her claim and provided a questionnaire for her completion to substantiate the factual portion of her
claim. OWCP afforded appellant 30 days to respond.
On July 9, 2019 appellant completed the questionnaire. She indicated that she injured her
right shoulder due to her mail carrier position which required repetitive motions. Appellant
described her daily work duties which included casing between 1,200 and 3,000 letters, 2 to 8 feet
of magazines, and working with parcels. After casing she was required to conduct a “pull down,”
which she was completing when her shoulder snapped. Appellant related that previously she had
injured her right wrist on July 11, 2016.

2

On August 8, 2019 OWCP denied appellant’s occupational disease claim, finding that the
evidence of record failed to establish a causal relationship between her diagnosed conditions and
the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10

3

Supra note 1.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

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

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted work status reports from Dr. Loh dated
May 23, June 6, and 20, 2019. In each of these reports, he indicated that appellant was injured on
May 22, 2019. In the May 23, and June 6, 2019 reports, Dr. Loh related appellant’s diagnoses of
right shoulder sprain, thoracic spine strain, and lumbar muscle strain. In his June 20, 2019 report,
he noted only right shoulder sprain and thoracic strain. In each of these reports Dr. Loh also
provided appellant’s work restrictions. In each of these three reports, he responded “yes” to a
question asking if appellant’s diagnoses were the result of an industrial exposure. The Board has
held that a physician’s opinion on causal relationship which consists of noting “yes” to a form
question, without explanation or rationale, is of diminished probative value and is insufficient to
establish a claim.11 In his work status reports, Dr. Loh did not provide a history of injury, or a
rationalized opinion regarding causal relationship.12 A medical opinion should reflect a correct
history and offer a medically sound explanation by the physician of how the specific employment
factors physiologically caused or aggravated the diagnosed conditions.13 For these reasons, the
Board finds that Dr. Loh’s reports are insufficient to establish appellant’s claim.
The Board finds that the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s diagnosed conditions and the accepted factors of her federal
employment. Thus, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.

11

See J.R., Docket No. 18-1679 (issued May 6, 2019); M.C., Docket No. 18-0361 (issued August 15, 2018);
Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).
12

I.C., Docket No. 19-0804 (issued August 23, 2019); R.C., Docket No. 19-0376 (issued July 15, 2019); C.B.,
Docket No. 18-0071 (issued May 13, 2019).
13

E.D., Docket No. 19-0833 (issued October 3, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the August 8, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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