United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Fresno, CA, Employer
__________________________________________

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

Docket No. 13-1388
Issued: July 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 22, 2013 appellant filed a timely appeal from a February 28, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error. Because more than 180 days elapsed from the last merit decision dated
August 16, 2010 to the filing of this appeal on May 16, 2013, the Board lacks jurisdiction to
review the merits of his claim pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 30, 2007 appellant, a 44-year old pharmacist, filed a Form CA-2 claim for
benefits under case number xxxxxx349. He alleged cervical and bilateral shoulder conditions,
epicondylitis and chronic pain syndrome causally related to employment factors. OWCP
accepted the claim for neck sprain and bilateral shoulder and upper arm sprains. Appellant had
previously filed a claim for traumatic injury under case number xxxxxx610 for a July 21, 2005
injury; which has been accepted for contusions of the genitals and scrotum, groin strain,
lumbosacral strain, major depression and organic-erectile dysfunction.
In an April 14, 2008 report, Dr. Jacob E. Tauber, Board-certified in orthopedic surgery
and appellant’s treating physician, stated that appellant had undergone a magnetic resonance
imaging (MRI) scan of the cervical spine which showed significant, multilevel degenerative disc
disease, a broad-based disc-osteophyte complex at C5-6, with a left paracentral herniation, and
disc-osteophyte complexes at C4-5 and C6-7. Appellant also underwent an MRI scan of his
shoulders which revealed acromioclavicular degenerative disease bilaterally, with osteophytes
that indented the supraspinatus. His right shoulder had a partial-thickness tear of the anterior
portion of the right supraspinatus. Dr. Tauber noted that appellant had the following accepted
conditions: neck sprain, bilateral shoulder and upper arm sprain “and other specified sites
bilaterally,” in addition to his previously accepted conditions, including lumbosacral strain,
major depressive disorder, contusion of the genital organs and groin sprain.
Dr. Tauber advised that appellant had engaged in extensive, repetitive motion for several
years and had carried out his duties by repeatedly reaching, lifting and holding his head in a fixed
position for long periods of time and engaging in repetitive motion. He asserted that these duties
contributed to appellant’s cervical and shoulder complaints. Although the duties were not the
sole cause of appellant’s accepted conditions, any activity that required lifting, reaching, turning
and grasping would contribute to the conditions. Dr. Tauber further opined that appellant’s
accepted conditions should include bilateral acromioclavicular arthritis with bilateral shoulder
impingement syndrome; a partial rotator cuff tear of the right shoulder; and cervical degenerative
disc disease, with disc-osteophyte complexes at C4-5, C5-6 and C6-7.
In order to determine appellant’s current condition and whether he had any ongoing
residuals of his accepted conditions under case number xxxxxx349, OWCP referred him to
Dr. Alice Martinson, Board-certified in orthopedic surgery, for a second opinion examination. In
a report dated January 19, 2009, Dr. Martinson diagnosed severe somatoform pain disorder,
possible impingement syndrome in both shoulders without concrete evidence of rotator cuff tear,
and mild two-level cervical disc disease without evidence of radiculopathy. She advised that
appellant had the typical findings of a profound somatoform pain disorder. Appellant’s total
body pain and his behavior throughout the examination were consistent with somatoform pain
disorder, which included a substantial component of anxiety and depression. Dr. Martinson was
asked to provide all diagnoses and to describe all objective findings used to establish the
diagnoses. She stated:
“[Appellant’s] somatoform pain disorder appears to be the direct consequence of
his scrotal injury at work on July 21, 2005. I have been asked specifically to
comment on the diagnoses listed in reports of October 30, 2007 and April 14,

2

2008 by Dr. Tauber. In these reports, Dr. Tauber appears to arrive at the
diagnosis of degenerative disc disease in the lumbar spine with ‘chronic sprain
related to his employment that has aggravated his degenerative disc disease. On
April 14, 2008 he also listed bilateral acromioclavicular arthritis with bilateral
shoulder impingement syndrome and significant cervical degenerative disc
disease. I concur with his diagnosis of degenerative disc disease in the lumbar
spine, but do not agree with his additional conclusion of ‘chronic sprain that has
aggravated his degenerative disc disease.… While [appellant] complains of neck
pain, there was no substantiation for the contention of cervical ‘strain.’ In my
view, [appellant’s] somatoform pain disease is directly caused by his injury
episode of July 21, 2005. At the time of his examination, I was unable to identify
any specific findings on physical examination, or imaging studies of his cervical
spine or shoulders, which I believe were directly caused by his injury episode on
July 21, 2005. I am in fact unable to separate any complaints which [appellant]
has in any specific part of his body from his overall somatoform pain disorder.”
When asked whether appellant had residuals of the work injury, Dr. Martinson replied:
“Yes, he is severely and profoundly incapacitated by his somatoform pain disorder. In my view,
all of his specific complaints in various portions of the musculoskeletal system are all
attributable to his pain disorder, but not to any specific anatomic abnormality in those parts.”
Dr. Martinson further opined that appellant clearly required ongoing psychological and
pharmacological treatment for his somatoform pain disorder. She asserted that no additional
specific diagnosis or treatment should be considered until psychological abnormalities were
brought under much better control.
On August 19, 2009 OWCP issued a notice of proposed termination of compensation. It
found that the weight of the medical evidence, as represented by Dr. Martinson’s referral
opinion, established that his accepted conditions under case number xxxxxx349 had ceased and
that he had no work-related residuals stemming from the October 30, 2007 work injury.
In a September 2, 2009 report, Dr. Tauber stated his disagreement with Dr. Martinson.
He noted that she had briefly described appellant’s light work duties but had not described his
repetitive motion duties while he was working full duty, which significantly contributed to his
accepted cervical and shoulder complaints. Dr. Tauber reiterated his opinion that the accepted
conditions should include bilateral acromioclavicular arthritis with bilateral shoulder
impingement syndrome and degenerative disc disease in the cervical spine. He advised that
appellant’s work duties contributed to and aggravated his degenerative disc condition and he
disagreed with Dr. Martinson’s opinion that appellant’s continued complaints of pain were
nonindustrial in etiology. Dr. Tauber stated that it was irrelevant whether or not appellant had a
somatoform pain disorder from an orthopedic standpoint; he deferred any opinion on this subject
to a psychiatrist.
By decision dated September 30, 2009, OWCP terminated appellant’s compensation
under case number xxxxxx349. It found that Dr. Martinson’s report represented the weight of
medical opinion.

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On October 12, 2009 appellant requested an oral hearing which was held on
January 8, 2010. At the hearing appellant’s attorney noted that Dr. Martinson had diagnosed
somatoform disorder under the current case number xxxxxx349. He argued that orthopedists
rarely diagnosed such psychological conditions and customarily deferred to psychiatrists.
Counsel stated that Dr. Martinson was unable to separate appellant’s physical injuries from the
somatoform pain disorder and argued that her diagnosis was wrong because the treating
physicians in the appropriate field of psychiatry under case number xxxxxx610 had diagnosed
post-traumatic stress disorder (PTSD) and major depression. He contended that Dr. Martinson’s
somatoform pain disorder diagnosis had superseded the diagnoses of these accepted conditions
and therefore did not provide a basis for terminating compensation under case number
xxxxxx349. Counsel also noted that the physicians of record indicated that appellant still had
neck, bilateral shoulder and hand pain and asserted that Dr. Martinson ignored these symptoms
and attributed all of appellant’s problems to the somatoform pain disorder.
By decision dated March 8, 2010, an OWCP hearing representative affirmed the
September 30, 2009 termination decision. She found that Dr. Martinson did not exceed her area
of expertise and that the diagnosis of somatoform pain disorder did not override the acceptance
of the major depression under case number xxxxxx610. The hearing representative stated that
Dr. Martinson clearly discussed the orthopedic findings and stated why she did not believe that
appellant’s cervical or bilateral shoulder strains, the only accepted conditions under case number
xxxxxx349, were related to the employment factors as described in the statement of accepted
facts.
By letter dated May 24, 2010, appellant requested reconsideration.
In a March 22, 2010 report, received by OWCP on May 28, 2010, Dr. Tauber reiterated
his disagreement with Dr. Martinson’s opinion that appellant’s conditions were nonindustrial.
He diagnosed bilateral acromioclavicular arthritis, bilateral shoulder impingement and
degenerative cervical disc disease and stated that these conditions had been aggravated by
extensive, repetitive motion duties at work. Dr. Tauber contended that there was a conflict in
medical opinion with Dr. Martinson regarding whether these conditions were causally related to
employment factors. While Dr. Martinson diagnosed a somatoform disorder, appellant had
already been diagnosed with PTSD and major depression.
By decision dated August 26, 2010, OWCP denied modification of the March 8, 2010
decision.
In a report dated December 8, 2011, received by OWCP on February 12, 2013,
Dr. Harwinder Singh, a physiatrist, stated that appellant was at status post multiple work-related
injuries. Appellant experienced severe bilateral shoulder pain due to chronic impingement and
degenerative arthritis. Dr. Singh also diagnosed chronic fatigue syndrome/fibromyalgia, chronic
severe depression, PTSD and severe neuropathic pain of the bilateral lower extremity. He stated
that appellant also experienced a seizure disorder and had urological problems. Given the
complexity of his medical conditions and impairments, which also included chronic lower back
pain due to diffuse degenerative disc disease leading to lumbar spinal stenosis, Dr. Singh did not
believe that he was capable of returning to any form of gainful employment. Dr. Singh opined
that appellant should be considered permanently totally disabled.

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In a January 7, 2013 report, received by OWCP on January 23, 2013, Dr. Singh stated
that appellant experienced chronic cervicoscapular pain with radiation to both upper extremities;
tingling, numbness, and pain in his bilateral forearms and hands; bilateral shoulder pain, worse
with overhead activities; chronic, moderate to severe lower back pain with radiation to his
bilateral lower extremities; urinary incontinency; severe hypogonadism with erectile
dysfunction; status post groin injury, with neuropathic pain in his bilateral lower extremities; and
chronic depression and post-traumatic stress disorder. He stated that on examination appellant
had severe bilateral shoulder impingement. The results of a January 3, 2013 cervical MRI scan
showed a broad-based disc bulge and osteophyte at C4-5, leading to moderate left
neuroforaminal narrowing; mild disc bulge/protrusion at C4-5 and left facet joint arthropathy;
broad-based disc bulge and osteophyte at C5-6, causing mild-to-moderate spinal stenosis and
flattening of his thecal sac, leading to severe left neuroforaminal narrowing and moderate on
right side; broad-based disc bulge at C6-7, leading to mild central canal stenosis and bilateral
neuroforaminal narrowing; and minimal grade 1 anterolisthesis of C7 with respect to TI along
with facet joint arthropathy.
Dr. Singh concluded that appellant had chronic cervical pain due to diffuse degenerative
disc disease and bilateral cervical radiculopathy; bilateral shoulder chronic impingement and
partial tear, especially on the left side; moderate bilateral carpal tunnel syndrome; mild-tomoderate bilateral Guyon’s canal syndrome; lower back pain due to diffuse degenerative disc
disease, leading to bilateral L5-S1 radiculopathy; mild sensory demyelinating peripheral
polyneuropathy; secondary fibromyalgia; severe hypogonadism; erectile dysfunction; chronic
depression; PTSD and urinary incontinence. He recommended treatment for appellant in the
form of cervical epidural steroid injection, possible neurosurgical intervention, left shoulder
arthroscopic surgery and close monitoring on bilateral carpal tunnel symptoms.
By letter dated February 6, 2013, received by OWCP on February 12, 2013, appellant
requested reconsideration. He stated that he was seeking reconsideration to obtain continuing
treatment of his shoulder and other areas.
By decision dated February 28, 2013, under case number xxxxxx349, OWCP denied
appellant’s request for reconsideration. It found that the request was untimely and that he did not
establish clear evidence of error.

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LEGAL PRECEDENT
Section 8128(a) of FECA2 does not entitle an employee to a review of an OWCP decision
as a matter of right.3 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.5 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held,
however, that OWCP must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.7 OWCP procedures
state that it will reopen an appellant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review shows “clear
evidence of error” on the part of OWCP.8
To establish clear evidence of error, appellant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must be
manifested on its face that it committed an error.10 Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
4

See 20 C.F.R. § 10.606(b).

5

Id. at § 10.607(b).

6

See cases cited supra note 2.

7

Rex L. Weaver, 44 ECAB 535 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

9

See Dean D. Beets, 43 ECAB 1153 (1992).

10

See Leona N. Travis, 43 ECAB 227 (1991).

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evidence of error.11 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.12 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.14 The Board makes an
independent determination of whether an appellant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.15
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued the most recent merit decision in this case on August 26, 2010. OWCP received
appellant’s February 6, 2013 request for reconsideration on February 12, 2013. Thus, the request
is untimely as it was outside the one-year time limit.
The Board finds that appellant’s February 12, 2013 request for reconsideration failed to
show clear evidence of error. Appellant submitted December 8, 2011 and January 7, 2013
reports from Dr. Singh, who advised that appellant was experiencing symptoms from numerous
conditions. These included: severe, chronic bilateral shoulder impingement and degenerative
arthritis; chronic fatigue syndrome/fibromyalgia; chronic severe depression; PTSD; severe
neuropathic pain of the bilateral lower extremities; diffuse degenerative disc disease leading to
lumbar spinal stenosis; seizure disorder; urinary incontinency; severe hypogonadism with
erectile dysfunction; status post groin injury, with neuropathic pain in his bilateral lower
extremities; and chronic depression. Appellant opined that due to the overall effects of these
medical conditions appellant was not capable of returning to any form of gainful employment.
Dr. Singh also indicated that a January 3, 2013 MRI scan showed evidence of diffuse
degenerative cervical disc disease, bilateral cervical radiculopathy; moderate bilateral carpal
tunnel syndrome and bilateral L5-S1 radiculopathy. These reports, however, while supportive of
appellant’s claim are insufficient to prima facie shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision. The term
“clear evidence of error” is intended to represent a difficult standard. The claimant must present
evidence which on its face show that OWCP made a mistake. For example, a claimant provides
proof that a schedule award was miscalculated, such as a marriage certificate showing that the
claimant had a dependent but the award was not paid at the augmented rate. Evidence such as a
11

See Jesus D. Sanchez, supra note 3.

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

Leon D. Faidley, Jr., supra note 3.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

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detailed, well-rationalized medical report which, if submitted before the denial was issued would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.16 Therefore, appellant has failed to demonstrate clear evidence of error on the part of
OWCP.
OWCP reviewed the evidence appellant submitted and properly found it to be insufficient
to prima facie shift the weight of the evidence in favor of appellant. Consequently, the evidence
submitted by appellant on reconsideration is insufficient to establish clear evidence of error on
the part of OWCP such that it abused its discretion in denying merit review. The Board finds
that OWCP did not abuse its discretion in denying further merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of OWCP in her reconsideration request dated February 12, 2013. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, OWCP properly denied further review on February 28, 2013.
ORDER
IT IS HEREBY ORDERED THAT the February 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.17
Issued: July 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Dean D. Beets, supra note 9; Leona N. Travis, supra note 10. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.5(a) (March 2011).
17

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

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

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

Docket No. 07-2336
Issued: April 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 14, 2007 appellant filed a timely appeal of an Office of Workers’
Compensation Programs’ decision dated June 13, 2007 which denied her application for leave
buyback. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review
the merits of appellant’s claim
ISSUE
The issue is whether appellant is entitled to leave buyback for the period January 19,
2000 through July 16, 2001.
FACTUAL HISTORY
On April 15, 2002 appellant, then a 51-year-old postmaster, filed an occupational disease
claim alleging that factors of her federal employment caused an emotional condition. She
claimed intermittent periods of disability beginning January 19, 2000, and on May 2, 2001, had
requested advanced sick leave. Advanced sick leave, not to exceed 240 hours, had been
approved on June 7, 2001. On December 19, 2002 the Office accepted that appellant sustained a

brief period of aggravation of depression, stating that she was entitled to wage-loss compensation
and medical benefits from January 19, 2000 to December 19, 2002. Appellant filed a CA-7
form, indicating that she had taken sick leave, annual leave and leave-without-pay for the period
January 19, 2000 through July 16, 2001, and time analysis records were submitted. A Form
CA-7a, time analysis form, signed by appellant on April 15, 2001 and by a supervisor, Marie
Law, on December 28, 2002 provides that between January 19, 2000 and July 16, 2001 appellant
took 556 hours of sick leave, 164 hours of annual leave, and 368 hours of leave-without-pay,
with a note appended that the latter was changed to include 320 hours of advanced sick leave.
On January 21, 2003 appellant submitted a Form CA-7b electing leave buyback for February 23
through May 4, 2001. A Form CA-7a for this period, signed by appellant and Ms. Law, indicates
that appellant took 164 hours annual leave from February 23 through May 4, 2001.
On January 31, 2003 appellant received wage-loss compensation totaling $6,920.70 for
the period January 19, 2000 through July 16, 2001. By letter dated February 7, 2003, the Office
advised appellant that if she wished to proceed with her leave buyback request, $4,617.38 was
required to recredit her leave, and her wage-loss compensation reimbursement would total only
$2,952.98, leaving a balance she would owe the employing establishment of $1,664.40. On
February 10, 2003 she advised the Office that she wished to proceed with leave buyback. By
letter dated March 11, 2003, the Office informed appellant that her leave buyback request had
been approved, and $3,084.23 would be forwarded to the employing establishment.1
In a July 28, 2005 letter, appellant requested 164 hours of leave buyback. By decision
dated November 18, 2005, the Office denied appellant’s claim for leave buyback for the period
January 19, 2000 through July 16, 2001 on the grounds that she had received wage-loss
compensation in the amount of $6,920.70 for this period. Appellant timely requested a hearing
that was held on August 31, 2006. At the hearing she acknowledged that she had been paid for
368 hours of leave-without-pay and that 320 hours were later changed to advanced sick leave.
She stated that she was requesting that an overpayment be declared regarding this matter and
requested leave buyback. On September 22, 2006 she submitted an incomplete Form CA-7b for
the period January 19, 2000 to July 16, 2001.
In a December 12, 2006 decision, an Office hearing representative remanded the case to
the Office. The hearing representative found that the record indicated that appellant’s claimed
leave-without-pay was changed to include 320 hours of advanced sick leave and instructed the
Office to obtain a CA-7b for the claimed period. The Office was to further develop the leave
buyback issued, and after performing necessary development, the Office was to issue a de novo
decision regarding appellant’s entitlement to leave buyback and the overpayment issue.

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An Office worksheet noted that the initial computation of wage-loss compensation was incorrect. The record,
however, does not indicate that a check was forwarded to the employing establishment. Appellant indicated that she
had forwarded checks to the employing establishment on August 4 and September 23, 2004. This is supported by an
employing establishment invoice. On September 14, 2004 appellant filed a recurrence claim, noting that she had
stopped work on April 9, 2003 and returned on February 2, 2004. In a February 16, 2005 decision, the Office
denied the claimed recurrence of disability. On July 22, 2005 appellant filed a recurrence claim for the period
July 22 to August 8, 2005. On December 23, 2005 the Office denied modification of the February 16, 2005
decision. The record does not contain a final decision on the claimed recurrence from July 22 to August 8, 2005.

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Following remand, the Office obtained appellant’s payroll records for the relevant period,
and in a letter dated April 18, 2007, addressed to the employing establishment with a copy to
appellant, the Office stated:
“After an extensive review of the claimant’s file, including all the CA-7’s, CA7a’s and 7b’s [forms], and the pay history file from the U.S. Postal Service Pay
Center, it was determined the following information is needed in order to
adjudicate the claimant’s leave buyback and possible overpayment.
1. New CA-7 [form] reflecting the dates of the leave buyback being
claimed.
2. New CA-7a [form], one date on each line, do not list by week or
inclusive dates, reflecting the hours the claimant worked that day, the type
of leave she took, or if [leave without pay] was claimed and the hours for
each.
3. New CA-7b for the leave buyback time the claimant is claiming.”
The employing establishment was instructed to submit the information within 30 days. By
decision dated June 13, 2007, the Office denied appellant’s claim for leave buyback, stating that
without new CA-7, 7a and7b forms, leave buyback could not be adjudicated. The Office also
informed appellant that a review of the record indicated that the March 11, 2003 leave buyback
approval letter had been issued in error because the leave buyback was calculated with a
dependent when there was no evidence or record to support her dependency claim.2
LEGAL PRECEDENT
In a typical leave buyback case, an injured employee uses sick or annual leave to prevent
wage loss after an employment injury. If a claim is accepted, and the work absences would
otherwise be compensable under the Federal Employees’ Compensation Act,3 the employee may
wish to buyback this leave from the employing establishment. If the employing establishment
agrees to allow the leave buyback, the absences previously covered by sick or annual leave are
recorded as leave without pay, creating a wage loss for which the employee may claim
compensation.4 In situations where compensation is claimed for periods when leave was used,
the Office has the authority and responsibility to determine whether the employee was disabled
during the period for which compensation is claimed.5 Office regulations at 20 C.F.R. § 10.425
regarding whether compensation may be claimed for periods of restorable leave, state that the
2

On June 13, 2007 the Office also issued a preliminary determination that an overpayment in compensation in the
amount of $4,666.20 had been created because appellant was paid for 368 hours for the period January 19, 2000
through July 16, 2001 when she was only entitled to 120 hours.
3

5 U.S.C. §§ 8101-8193.

4

Lloyd E. Griffin, Jr., 46 ECAB 979 (1995).

5

Glen M. Lusco, 55 ECAB 148 (2003).

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employee may claim compensation for periods of annual and sick leave which are restorable in
accordance with the rules of the employing establishment. CA-7 and CA-7b forms are used for
this purpose.6
ANALYSIS
The Board finds that this case is not in posture for decision as the record is deficient since
the Office did not comply with the hearing representative’s instructions found in the
December 12, 2006 decision. On remand the Office was to further develop the claim in regard to
appellant’s request for leave buyback for the period January 19, 2000 to July 16, 2001. In its
April 18, 2007 letter, addressed to the employing establishment, the Office failed to comply with
the hearing representative’s instructions by not advising appellant directly regarding her specific
requirements in submitting the requested CA-7, CA-7a and CA-7b forms. Although these forms
were requested by the Office neither appellant nor the employing establishment submitted them.
The case must therefore be remanded for the Office to develop whether appellant is entitled to
the requested leave buyback for the period January 19, 2000 to July 16, 2001. On remand that
Office should inform appellant directly that she should submit the appropriate forms to the
employing establishment for approval. The employing establishment should then follow
established procedures to approve or disapprove the request and forward the completed forms to
the Office.7 Following this and such other development as deemed necessary, the Office shall
issue an appropriate merit decision.
CONCLUSION
The Board finds this case is not in posture for decision.

6

20 C.F.R. § 10.425; see Laurie S. Swanson, 53 ECAB 517 (2002).

7

The Board notes that time analysis records found in the record contain contradictory information regarding the
type of leave taken. Regarding the 164 hours of leave buyback requested for the period February 23 through May 4,
2001, while the record supports that appellant repaid the employing establishment for her share, and by its June 13,
2007 decision, the Office acknowledged that it had miscalculated the amount of wage-loss compensation appellant
would be entitled to for this period, the wage-loss compensation appellant received on January 31, 2003 included
payment for 164 hours of sick leave taken.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 13, 2007 be vacated and the case remanded to the Office for
further proceedings consistent with this decision of the Board.
Issued: April 14, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Drum, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1547
Issued: December 22, 2016

Case Submitted on the Record

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

On July 27, 2016 appellant, through counsel, filed a timely appeal from a June 15, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which found that
her request for reconsideration was untimely and did not present clear evidence of error. The
appeal was docketed as No. 16-1547.
The Board has duly considered the matter and finds that the case is not in posture for
decision. By decision dated January 21, 2015, OWCP denied appellant’s occupational disease
claim for bilateral knee conditions, finding that the claim was not timely filed under 5 U.S.C.
§ 8122. On January 21, 2016 appellant requested reconsideration. She submitted additional
evidence. By decision dated June 15, 2016, OWCP denied her request for reconsideration,
finding that it was not timely filed and failed to present clear evidence of error. In its decision, it
referred only to documents received on January 26, 2016, but did not mention appellant’s
reconsideration request received on January 21, 2016.
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.

The Board finds that appellant’s request for reconsideration was timely filed. Section
10.607(a) of the implementing regulations provides that an application for reconsideration must
be received within one year of the date of OWCP decision for which review is sought.2 In this
case, the last merit decision was dated January 21, 2015 and appellant’s request for
reconsideration was received by OWCP on January 21, 2016. Thus, her request was timely filed.
Because appellant filed a timely reconsideration request, OWCP should have reviewed
her request under the standard for a timely request,3 as opposed to the standard for untimely
requests.4 The clear evidence of error standard utilized by OWCP in its June 15, 2016 decision
is appropriate only for untimely reconsideration requests. The Board will set aside OWCP’s
June 15, 2016 decision and remand the case for an appropriate final decision on appellant’s
timely request for reconsideration.
IT IS HEREBY ORDERED THAT the June 15, 2016 decision is set aside and
remanded for further action consistent with this order of the Board.
Issued: December 22, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

20 C.F.R. § 10.607(a). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016).
3

Id. at § 10.606(b)(3).

4

Section 10.607(b) states that OWCP will consider an untimely application for reconsideration only if it
demonstrates clear evidence of error by OWCP in its most recent merit decision. The reconsideration request must
establish that OWCP’s decision was, on its face, erroneous. Id. at § 10.607(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Middle Village, NY, Employer
__________________________________________

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)
)
)
)
)
)

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

Docket No. 16-1668
Issued: September 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 17, 2016 appellant, through counsel, filed a timely appeal from a June 23,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to an October 7, 2014 employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 7, 2014 appellant, then a 31-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she pulled a muscle in her right elbow and felt
sharp pain while delivering mail at work. She stopped work on October 7, 2014 and returned to
light-duty work on October 17, 2014.
In a letter dated October 8, 2014, appellant’s immediate supervisor indicated that the
employing establishment was controverting appellant’s traumatic injury claim. He noted that
appellant had only been on the job for three months and that appellant’s complaints might be due
to a preexisting injury.
In support of her claim, appellant submitted a duty status report (Form CA-17) completed
on October 7, 2014 in which a physician with an illegible signature listed the date of injury as
October 7, 2014, listed the diagnosis due to injury as right elbow pain and epicondylitis of right
elbow, and indicated that she could not resume work.
In a form report entitled “Authorization for Examination And/Or Treatment (Form CA16), an emergency medicine physician with an illegible signature listed the mechanism of injury
as right elbow pain developed while delivering mail on cart. The physician did not provide a
diagnosis, but found that appellant was totally disabled from October 7 to 14, 2014.3
In a Form CA-17 dated October 14, 2014, a physician with an illegible signature,
specializing in orthopedic surgery, listed the date of injury as October 7, 2014, the mechanism of
injury as pushing mail container, and listed the diagnosis due to injury as epicondylitis of the
right elbow. The physician indicated that appellant could not resume work.
In an attending physician’s report (Form CA-20) dated October 14, 2014, Dr. David V.
Tuckman, an attending Board-certified orthopedic surgeon, listed the date of injury as October 7,
2014, the mechanism of injury as “injured while pushing mail cart” and diagnosed right elbow
medial epicondylitis (golfer elbow). He checked a box marked “Yes” indicating that the
condition found was caused or aggravated by an employment activity and noted that appellant
could perform light duty.
By letter dated October 21, 2014, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim, including a narrative report from a
physician containing a medical explanation as to how the reported work incident caused or
aggravated a medical condition.

3

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

2

Appellant submitted a November 18, 2014 statement in which she further described the
circumstances of her claimed October 7, 2014 injury. She indicated that she was pushing a mail
cart on October 7, 2014 when she “suddenly felt something in my inner right elbow pulled.”
Appellant indicated that she continued delivering mail for a few hours and stopped work when
her right elbow pain became worse. She denied that she had a preexisting right elbow condition.
In an October 10, 2014 report, Dr. Tuckman noted that appellant reported experiencing
severe pain in her right elbow after pushing a mail cart at work on October 7, 2014. He indicated
that, upon examination of the right upper extremity, there was full range of motion, 5/5 strength,
and normal sensation without atrophy, swelling, or crepitus/effusion. There was marked medial
epicondyle tenderness. Dr. Tuckman found that x-rays taken on October 10, 2014 showed no
boney or soft tissue abnormalities and he diagnosed right elbow medial epicondylitis (golfer
elbow). He indicated that appellant could return to light-duty work.4 On October 31, 2014
Dr. Tuckman noted that appellant could continue performing light-duty work.
In a November 24, 2014 decision, OWCP determined that appellant failed to meet her
burden of proof to establish a traumatic injury in the performance of duty on October 7, 2014. It
found that she established the occurrence of an employment incident on October 7, 2014 in the
form of pushing a mail cart and delivering mail, but that she did not submit sufficient medical
evidence to establish that she sustained a specific medical condition due to the accepted
employment incident.5
Dr. Tuckman requested that appellant undergo a magnetic resonance imaging (MRI) scan
of her right elbow. The findings from the MRI scan obtained on November 28, 2014 showed red
marrow hyperplasia in the proximal radial shaft and distal humeral shaft without malalignment,
ligament tear, tendon tear, or acute fracture. The findings also noted, specifically, there is no
common flexor tendon tear or evidence of medial epicondylitis. On December 9, 2014
Dr. Tuckman again provided the diagnosis of right elbow medial epicondylitis (golfer elbow).
Appellant submitted several notes and reports, dated between late-2014 and mid-2015, in
which Dr. Tuckman diagnosed right elbow medial epicondylitis, prescribed pain medication, and
indicated that she should continue with light-duty work. She visited the hospital on December 6,
2014 with complaints of right shoulder pain and the findings of December 6, 2014 x-rays of
appellant’s right shoulder showed “unremarkable radiographs of the shoulder.”
In an April 5, 2015 Form CA-17, a physician with an illegible signature, specializing in
physiatry, listed the mechanism of injury as pushing a mail cart and delivering mail on
October 7, 2014 and the diagnosis due to injury as right elbow tendinitis and right shoulder
tendinitis. The physician indicated that appellant could work with restrictions.

4

In a Form CA-17 dated October 14, 2014, a physician with an illegible signature, specializing in orthopedic
surgery, diagnosed epicondylitis of the right elbow and indicated that appellant could resume work on that date with
restrictions.
5

OWCP indicated that appellant’s physician did not explain how her pushing a mail cart and delivering mail on
October 7, 2014 caused, contributed to, or aggravated her diagnosed condition of right elbow medial epicondylitis
(golfer elbow).

3

Appellant requested a hearing with an OWCP hearing representative. During the hearing
held on June 10, 2015, she testified regarding the symptoms she experienced on October 7, 2014
and counsel argued that the medical evidence of record was sufficient to require further
development of the claim.
After the hearing, appellant submitted a July 1, 2015 report in which Dr. Neofitos
Stefanides, an attending Board-certified orthopedic surgeon, noted that appellant reported right
elbow and right shoulder pain which began on October 7, 2014 when she was working as a
postal carrier. She indicated that she was doing quite a bit of work that day. Dr. Stefanides
reported physical examination findings, including marked medial epicondyle tenderness to
palpation, and diagnosed medial epicondylitis of the right elbow, and right shoulder
impingement and bursitis. He indicated that she was partially disabled from her usual work and
noted, “[I]t is my opinion based upon the patient’s history, physical examination, and
radiographic findings, that there is a reasonable degree of medical certainty that the patient’s
physical injuries are causally related to the accident noted above.”
By decision dated July 21, 2015, OWCP’s hearing representative affirmed OWCP’s
November 24, 2014 decision finding that appellant did not meet her burden of proof to establish
a traumatic injury in the performance of duty on October 7, 2014. She found that appellant did
not submit a rationalized medical report relating a medical condition to the accepted October 7,
2014 work incident.
In a January 26, 2016 letter, appellant, through counsel, requested reconsideration of the
July 21, 2015 decision denying her claim.
Appellant submitted a September 21, 2015 Form CA-17 in which Dr. Stefanides listed
the mechanism of injury as pushing a mail cart when delivering mail on October 7, 2014 and the
diagnosis due to injury as right shoulder joint pain and disorders of bursae/tendons of the right
shoulder. He indicated that appellant could perform her regular work on a full-time basis
without restrictions.
In a November 6, 2015 report, Dr. Stefanides noted that appellant complained of rightsided neck, arm, elbow, and thumb pain which began on November 4, 2015 when she was
delivering mail and had to constantly pull a heavy mail cart towards herself and sideways to
prevent it from rolling away. He reported physical examination findings and diagnosed neuritis
and cervical radiculitis of the upper extremities, right shoulder impingement and bursitis, and a
sprain/strain of the right thumb/finger. Dr. Stefanides indicated that appellant was totally
disabled from her usual work and noted, “[I]t is my opinion based upon the patient’s history,
physical examination, and radiographic findings, that there is a reasonable degree of medical
certainty that the patient’s physical injuries are causally related to the accident noted above.”
In an undated Form CA-20, Dr. Stefanides listed the date of injury as November 4, 2014,
the mechanism of injury as “continuous pulling, pushing of the mail cart,” and diagnosed
cervical spine sprain/radiculopathy, right shoulder impingement/bursitis, and right elbow and
thumb sprains. He checked a box marked “Yes” indicating that the conditions found were
caused or aggravated by an employment activity and noted that she was totally disabled from
November 4 to December 4, 2015.

4

In a decision dated June 23, 2016, OWCP denied modification of its July 21, 2015
decision, finding that appellant did not meet her burden of proof to establish a traumatic injury
causally related to the October 7, 2014 employment incident. It noted that she did not submit
rationalized medical evidence establishing such an injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 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.6 These are the essential elements of each
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, 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.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to an October 7, 2014 employment incident.
6

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

7

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury
caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period
longer than a single workday or work shift. 20 C.F.R. §§ 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
8

Julie B. Hawkins, 38 ECAB 393 (1987).

9

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

10

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

Appellant submitted a Form CA-20 dated October 14, 2014 in which Dr. Tuckman, an
attending physician, listed the date of injury as October 7, 2014, the mechanism of injury as
“injured while pushing mail cart,” and diagnosed right elbow medial epicondylitis (golfer
elbow). Dr. Tuckman checked a box marked “Yes” indicating that the diagnosed condition was
caused or aggravated by an employment activity and noted that she could perform light duty.
The submission of this report fails to establish appellant’s claim for an October 7, 2014 work
injury because Dr. Tuckman did not provide medical rationale in support of his opinion on causal
relationship. The Board has held that when a physician’s opinion on causal relationship consists
only of checking “Yes” to a form question, without more by the way of medical rationale, that
opinion has little probative value and is insufficient to establish causal relationship. A claimant’s
burden of proof includes the necessity of furnishing an affirmative opinion from a physician who
supports his or her conclusion with sound medical reasoning.11 Dr. Tuckman did not discuss nor
describe appellant’s activities at work on October 7, 2014 in any detail or describe the medical
mechanism through which they could have caused the diagnosed medical condition.12
Dr. Tuckman produced other reports in which he diagnosed appellant with a right elbow condition,
but these reports do not contain an opinion on the cause of the diagnosed condition.13
In an April 5, 2015 Form CA-17, a physician with an illegible signature listed the
mechanism of injury as pushing a mail cart and delivering mail on October 7, 2014 and the
diagnosis due to injury as right elbow tendinitis and right shoulder tendinitis. The physician
indicated that appellant could work with restrictions. The submission of this report would not
establish appellant’s claim for a work-related October 7, 2014 injury because, although the
medical specialty is listed, it is unknown whether the author of the report is a physician. The
Board has held that a report bearing an illegible signature lacks proper identification and cannot
be considered probative medical evidence.14 Thus, it is of no probative value.
In a July 1, 2015 report, Dr. Stefanides, an attending physician, noted that appellant
reported right elbow and right shoulder pain which began on October 7, 2014 when she was
working as a postal carrier. He diagnosed medial epicondylitis of the right elbow, and right
shoulder impingement and bursitis. Dr. Stefanides indicated that appellant was partially disabled
from her usual work and noted, “[I]t is my opinion based upon the patient’s history, physical
examination, and radiographic findings, that there is a reasonable degree of medical certainty
that the patient’s physical injuries are causally related to the accident noted above.” However, he
did not support this opinion on causal relationship with any further medical explanation.
11

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

12

The provision of such medical rationale is especially necessary in this case as Dr. Tuckman obtained a report of
a November 28, 2014 MRI scan of appellant’s right elbow in which it was noted, “Specifically, there is no common
flexor tendon tear or evidence of medial epicondylitis.”
13

The record also contains several form reports from early- to mid-October 2014 in which physicians with
illegible signatures indicated that appellant sustained right elbow conditions due to pushing a mail cart and
delivering mail on October 7, 2014. However, these reports are of no probative value as the author cannot be
identified as a physician despite the reference to the medical specialties. See C.N., Docket No. 16-1597 (issued
August 10, 2017); see also Merton J. Sills, 39 ECAB 572, 575 (1988).
14

Id.

6

Dr. Stefanides did not discuss appellant’s activities at work on October 7, 2014 in any detail or
explain how specific objective findings on physical examination and diagnostic testing supported
the occurrence of a work-related injury on October 7, 2014.15 The record contains a September 21,
2015 report in which Dr. Stefanides related right elbow and shoulder conditions to appellant’s
October 7, 2014 work activities, but it is also deficient because it lacks medical rationale in
support of its opinion on causal relationship.16
For these reasons, appellant did not meet her burden of proof to establish a traumatic
injury causally related to an October 7, 2014 employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury
causally related to an October 7, 2014 employment incident.

15

In particular, Dr. Stefanides did not explain how the diagnosed right shoulder condition could have been related
to the October 14, 2014 work activities given appellant’s above-noted history of reporting symptoms.
16

Appellant submitted a November 6, 2015 narrative report and an undated form report in which Dr. Stefanides
related right shoulder, cervical radiculopathy, elbow, thumb, and finger conditions to her handling of a mail cart at
work on November 4, 2015. The record does not presently contain a claim for a November 4, 2015 work injury or a
decision concerning a November 4, 2015 work injury and as such the matter is not currently before the Board.

7

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2017
Washington, DC

Christopher J. Godfrey, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Ashland, KY, Employer
__________________________________________

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)
)

Appearances:
Michael Welsh, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0898
Issued: August 15, 2017

Case Submitted on the Record

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

JURISDICTION
On March 17, 2017 appellant, through his representative, filed a timely appeal from a
January 27, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction 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 more than one
percent permanent impairment of his right upper extremity for which he previously received a
schedule award.
FACTUAL HISTORY
On April 2, 2014 appellant, then a 38-year-old lieutenant, filed a traumatic injury claim
(Form CA-1) alleging that on March 25, 2014 he injured both shoulders, his back, and neck
while participating in required annual firearms training.
On May 22, 2014 OWCP accepted appellant’s claim for biceps tendinitis in the left
shoulder and impingement with bursitis-tendinitis in the right shoulder.
Appellant filed a schedule award claim (Form CA-7) on February 3, 2015. By decision
dated April 24, 2015, OWCP granted him a schedule award for 12 percent permanent
impairment of his left upper extremity.
On August 4, 2015 appellant filed a claim for an additional schedule award (Form CA-7).
In support of that claim, he submitted a May 8, 2015 disability impairment rating for his right
arm from Robert J. Hammond, an occupational therapist.
In a letter dated August 17, 2015, OWCP requested a report from appellant’s attending
physician, Dr. Joseph Leith, a Board certified orthopedic surgeon, addressing appellant’s right
shoulder permanent impairment. Dr. Leith completed a form report on September 2, 2015 and
opined that appellant had reached maximum medical improvement. He found that he had 10
percent permanent impairment of the right arm based on right shoulder range of motion (ROM).
OWCP referred the record to an OWCP district medical adviser (DMA). In a report
dated December 19, 2015, the DMA determined that Dr. Leith had utilized the ROM
methodology to determine appellant’s permanent impairment. He disagreed with the application
of the ROM methodology and concluded that appellant’s right shoulder permanent impairment
should be evaluated based on the diagnosis-based impairment (DBI) methodology for an
impingement syndrome, which warranted one percent permanent impairment of the right upper
extremity for schedule award purposes.
By decision dated March 25, 2016, OWCP granted appellant a schedule award for one
percent permanent impairment of his right upper extremity.
On April 18, 2016 appellant requested an oral hearing from OWCP’s Branch of Hearings
and Review regarding the March 25, 2016 decision. Following his request, he authorized a
representative before OWCP.
During the oral hearing held on December 5, 2016, appellant’s representative contended
that Dr. Leith had properly used the ROM methodology for calculating appellant’s permanent
impairment of the right upper extremity. He further argued that OWCP improperly relied on the
DMA’s application of the DBI methodology to reach appellant’s impairment rating for schedule
2

award purposes as the ROM method resulted in a higher impairment rating and should, therefore,
have been used.
In a January 27, 2017 decision, OWCP’s hearing representative affirmed the March 25,
2016 decision finding that the DMA properly used the DBI methodology to rate permanent
impairment rather than the ROM methodology used by Dr. Leith.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.3 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.4 However, it does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires
the use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) as the appropriate standard for evaluating schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., Guides issued a 52-page document entitled “Clarifications and
Corrections, [s]ixth [e]dition, [A.M.A.,] Guides to the Evaluation of Permanent Impairment.”
The document included various changes to the original text, intended to serve as an
erratum/supplement to the first printing of the A.M.A., Guides. In April 2009, these changes
were formally incorporated into the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
ANALYSIS
The issue on appeal is whether appellant has met his burden of proof to establish more
than one percent permanent impairment of his right upper extremity.
3

See 20 C.F.R. §§ 1.1-1.4.

4

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
7

Isidoro Rivera, 12 ECAB 348 (1961).

3

The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.8
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.9 In T.H., the Board concluded that OWCP physicians were
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis. Furthermore, the Board observed that physicians interchangeably
cited to language in the first printing or the second printing when justifying use of either ROM or
DBI methodology. Because OWCP’s own physicians were inconsistent in the application of the
A.M.A., Guides, the Board found that OWCP could no longer ensure consistent results and equal
justice under the law for all claimants.10
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the January 27, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and such other development as may be deemed necessary, OWCP shall issue a de
novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: August 15, 2017
Washington, DC

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

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

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

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

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

Docket No. 14-192
Issued: May 22, 2014

Case Submitted on the Record

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

JURISDICTION
On October 30, 2013 appellant filed a timely appeal from a May 28, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award.
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 more than a 42 percent binaural (both ears) loss of
hearing, for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 28, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that he is entitled to 100 percent of his compensation due
to the loss of his hearing which can never be returned.
FACTUAL HISTORY
On August 1, 2012 appellant, a 57-year-old customs and border protection officer, filed
an occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to
exposure to high noise levels on a constant basis in the performance of duty over the past 19
years.
In an August 16, 2012 letter, OWCP notified appellant of the deficiencies of his claim. It
afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a narrative statement including his employment history, a position
description and audiograms dated November 23, 2010 and May 23, 2011.
In a June 15, 2011 report, Dr. Chi Nguyen, a Board-certified otolaryngologist, diagnosed
bilateral sensorineural hearing loss, subjective tinnitus and Eustachian tube dysfunction. He
opined that appellant’s hearing loss was likely due to loud noise exposure at work, including
loud traffic noises.
OWCP referred appellant and a statement of accepted facts to Dr. Gregory Rowin, an
otolaryngologist, for a second opinion evaluation, who performed an otologic evaluation of
appellant on February 28, 2013 and audiometric testing was obtained on his behalf. Testing at
the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed the
following: right ear 45, 40, 50 and 50 decibels (dB); left ear 70, 60, 60 and 70 dB. Dr. Rowin
determined that appellant sustained moderate-to-severe sensorineural hearing loss in the right ear
and moderately severe-to-severe sensorineural hearing loss in the left ear. He opined that
appellant’s binaural hearing loss was causally related to his exposure to noise during the course
of his federal employment. Dr. Rowin also found that appellant’s tinnitus impacted his ability to
perform activities of daily living.
On March 28, 2013 an OWCP medical adviser, Dr. H. Mobley, reviewed Dr. Rowin’s
report and the audiometric test of February 28, 2013. He concluded that, in accordance with the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), appellant had a 42 percent binaural hearing loss. Dr. Mobley
noted that five percent was added for appellant’s tinnitus and the date of maximum medical
improvement was February 28, 2013, the date of Dr. Rowin’s second opinion examination and
report.
By decision dated April 30, 2013, OWCP accepted that appellant sustained bilateral
hearing loss due to noise exposure.
On May 10, 2013 appellant filed a claim for a schedule award.
By decision dated May 28, 2013, OWCP granted appellant a schedule award for 42
percent binaural hearing loss impairment, entitling him to 84 weeks of compensation. The
period of the award ran from February 28, 2013 to October 8, 2014.
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LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each
frequency are added up and averaged. Then, the fence of 25 dB is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.5
ANALYSIS
Dr. Mobley reviewed the report of Dr. Rowin, to whom OWCP referred appellant for an
otologic examination and audiological evaluation. Dr. Rowin reported that appellant sustained
moderate-to-severe sensorineural hearing loss in the right ear and moderately severe-to-severe
sensorineural hearing loss in the left ear. Dr. Mobley properly applied OWCP’s standardized
procedures to Dr. Rowin’s February 28, 2013 audiogram, which recorded frequency levels at the
500, 1,000, 2,000 and 3,000 cps levels and revealed dB losses of 45, 40, 50 and 50 respectively
in the right ear for a total dB loss of 185 on the right. He divided this total by 4, which resulted
in an average loss of 46.3 dB. Dr. Mobley subtracted the fence of 25 dB to equal 21.3 dB. He
then multiplied this by the established factor of 1.5 to result in a 32 percent monaural hearing
loss for the right ear. Dr. Mobley properly followed the same procedure on the left, noting that
the test results for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps revealed dB
losses of 70, 60, 60 and 70 dB respectively, for a total of 260 dB. He divided this by 4, for an
average hearing loss of 65 dB, subtracted the fence of 25 dB to equal 40 dB and multiplied this
by the established factor of 1.5, for a 60 percent monaural hearing loss for the left ear.
Dr. Mobley then multiplied the 32 percent right ear hearing loss by 5, added the 60 percent left
3

Supra note 1.

4

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

5

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).

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ear hearing loss and divided the total by 6, for a total of 37 percent binaural hearing loss. To
this, he added 5 percent for appellant’s tinnitus, to total 42 percent binaural hearing loss. The
medical evidence established that appellant has a 42 percent binaural hearing loss.6
On appeal, appellant contends that he is entitled to 100 percent of his compensation due
to the loss of his hearing which can never be returned. A schedule provides for payment of
compensation for a specific number of weeks as prescribed by the statute.7 With regard to
appellant’s contention that he is entitled to a schedule award for greater than a 42 percent
binaural hearing loss, section 8107(c)(13)(B) provides that for a 100 percent loss of hearing of
both ears, a claimant is entitled to 200 weeks’ compensation.8 As he sustained 42 percent
binaural hearing loss, he is entitled to 84 weeks’ compensation, which is what OWCP awarded.
Appellant is entitled to no more under FECA.
The Board has recognized that a claimant may be entitled to an award for an increased
hearing loss, even after exposure to hazardous noise has ceased, if causal relation is supported by
the medical evidence of record.9 The record does not contain an accompanying report by a
physician providing a rationalized medical opinion on greater permanent impairment. The Board
finds that there is no basis on which to grant a schedule award for more than a 42 percent
binaural hearing loss under OWCP’s standardized procedures.10
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a 42
percent binaural (both ears) loss of hearing, for which he received a schedule award.

6

See S.G., 58 ECAB 383 (2007).

7

5 U.S.C. § 8107.

8

Id. at § 8107(c)(13)(B).

9

See Paul Fierstein, 51 ECAB 381 (2000); Paul R. Reedy, 45 ECAB 488 (1994). See also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.9(b)
(February 2013). If, on the other hand, the claimant sustains increased impairment at a later date which is due to
work-related factors, an additional award will be payable if supported by the medical evidence. In this case, the
original award is undisturbed and the new award has its own date of maximum medical improvement, percent of
impairment and period of award. See also id. at Chapter 2.808.9(c) (February 2013).
10

Cf. Felix Flescha, 52 ECAB 268 (2001); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB
820 (1978).

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ORDER
IT IS HEREBY ORDERED THAT the May 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2014
Washington, DC

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

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

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

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

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

Docket No. 16-1194
Issued: October 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 16, 2016 appellant, through counsel, filed a timely appeal from an April 12,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a right knee injury
causally related to an accepted June 15, 2013 employment incident.

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 26, 2013 appellant, then a 58-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 15, 2013 she scraped her knee and the palm of her hand when
she stepped down from a curb onto the street and her right knee buckled causing a fall. She
stopped work on June 18, 2013.3
In a June 17, 2013 work release note, Dr. Kevin Coughlin, a Board-certified orthopedic
surgeon, opined that appellant could not work until further notice.
The employing establishment controverted appellant’s claim in a statement received on
July 3, 2013. It pointed out that when appellant fell down on June 15, 2013 she informed R.N.,
supervisor of customer service, not to worry about the incident, and appellant did not
immediately seek medical attention. The employing establishment noted that on June 15, 2013
appellant was working modified duty due to a previous work injury.
In a July 3, 2013 statement from appellant on which C.L., a human resources
management specialist, provided a chronological timeline of the events surrounding the June 15,
2013 employment incident. The statement documents that on June 5, 2013 appellant stumbled
on a runner and fell on her right knee. On June 6, 2013 appellant submitted medical evidence
which authorized her to return to work with restrictions. She returned to modified duty on
June 10, 2013. Her claim was accepted for medical benefits on June 13, 2015. On June 26, 2013
appellant filed another traumatic injury claim (Form CA-1) alleging that on June 15, 2013 she
stepped off a curb when her right knee buckled, causing her to fall onto the street on her right
knee. She then submitted medical evidence dated June 17, 2013, which recommended that she
not return to work. C.L. requested that OWCP review the relationship between the June 5, 2013
injury and her current alleged injury and determine whether the two injury claims should be
combined.
By letter dated July 8, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that appellant respond to a questionnaire in order
to substantiate that the June 15, 2013 incident occurred as alleged. Appellant was also asked to
submit medical evidence to establish that she sustained a diagnosed condition as a result of the
alleged incident. She was afforded 30 days to submit this evidence. No additional information
was provided.
OWCP denied appellant’s claim in a decision dated August 16, 2013. It found that the
factual evidence failed to substantiate that the June 15, 2013 incident occurred as alleged and that
the medical evidence failed to establish a diagnosed condition causally related to any June 15,
2013 incident.
On August 8, 2014 OWCP received appellant’s request, through counsel, for
reconsideration.

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The record reveals that appellant has three previously accepted traumatic injury claims for an August 14, 2003
injury (OWCP File No. xxxxxx801); a February 14, 2008 injury (OWCP File No. xxxxxx616); and a June 5, 2013
injury (OWCP File No. xxxxxx755).

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Appellant submitted medical reports from Dr. Coughlin dated December 5, 2008 through
May 21, 2013 regarding treatment for bilateral knee joint arthrosis and persistent right knee joint
osteoarthrosis pain.
On July 23, 2013 appellant underwent total right knee arthroplasty by Dr. Coughlin.
In reports dated June 17 to October 28, 2013, Dr. Coughlin related appellant’s complaints
of right knee pain and instability. He noted that appellant had experienced two falls which
occurred on June 5 and 15, 2013. Dr. Coughlin reviewed appellant’s history and noted that
appellant had undergone a right knee arthroscopic medial and lateral meniscectomy and medial,
lateral, and anterior compartment chondroplasty. Upon examination, he observed mild-tomoderate swelling about the right knee, tricompartmental crepitation with passive manipulation,
and healed surgical sites. Right knee alignment was full and range of motion was near full.
Dr. Coughlin diagnosed right knee pain and right knee joint arthrosis, certainly aggravated by the
two recent falls at work. He recommended that appellant not work.
By decision dated April 12, 2016, OWCP modified the August 16, 2013 decision. It
accepted that the incident occurred as alleged and that medical evidence contained valid
diagnoses of aggravation of right knee arthrosis and contusion of the right knee, but denied
appellant’s claim finding that the medical evidence was insufficient to establish that her right
knee condition was causally related to the June 15, 2013 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.8 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.9 An employee may establish that the employment incident

4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

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occurred as alleged but fail to show that his or her disability or condition relates to the
employment incident.10
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.12 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.13
ANALYSIS
Appellant alleged that on June 15, 2013 she sustained a right knee injury when she
stepped off a curb while delivering mail at work. The record reveals that she has a previously
accepted work-related right knee injury. OWCP accepted that the June 15, 2013 incident
occurred as alleged and that appellant was diagnosed with aggravated right knee arthrosis and
right knee contusion. It denied her claim finding that the medical evidence failed to establish
that her right knee condition was causally related to the June 15, 2013 work incident.
The record reveals that Dr. Coughlin had treated appellant for bilateral knee joint
arthrosis and persistent right knee joint osteoarthrosis beginning in 2008. In reports dated
June 17 to October 28, 2013, he related appellant’s complaints of right knee pain and instability
and mentioned that appellant had two falls at work on June 5 and 15, 2013. Dr. Coughlin
reviewed appellant’s history and conducted an examination. He observed mild-to-moderate
swelling about the right knee and tricompartmental crepitation with passive manipulation.
Dr. Coughlin diagnosed right knee pain and right knee joint arthrosis, certainly aggravated by the
two recent falls at work. The Board notes that although Dr. Coughlin’s opined that appellant’s
right knee condition was aggravated by the June 15, 2013 fall at work, he did not provide
adequate medical rationale explaining how the fall at work actually caused or aggravated her
current right knee condition.14
The Board has held that a medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion regarding causal relationship which is unsupported
by medical rationale.15 Furthermore, the Board notes that Dr. Coughlin attributed appellant’s
right knee symptoms to two work incidents on June 5 and 15, 2013. A rationalized medical
explanation is especially warranted in this case where appellant had two incidents at work that
involved falls. An award of compensation may not be based on surmise, conjecture, speculation
10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

13

James Mack, 43 ECAB 321 (1991).

14

See K.W., Docket No. 10-98 (issued September 10, 2010).

15

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

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or upon appellant’s own belief that there is causal relationship between his claimed condition and
his employment.16 Because Dr. Coughlin fails to provide adequate medical rationale or
explanation for how the June 15, 2013 caused or contributed to appellant’s right knee condition,
his opinion is insufficient to establish appellant’s claim.
On appeal, appellant’s counsel alleges that OWCP’s decision was contrary to fact and
law. As explained above, however, the evidence of record fails to demonstrate that appellant’s
right knee condition was causally related to the June 15, 2013 employment incident and is
insufficient to establish her traumatic injury claim.
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 traumatic
injury causally related to a June 15, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

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