United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Omaha, NE,
Employer
__________________________________________

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

Docket No. 08-836
Issued: August 22, 2008

Case Submitted on the Record

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

JURISDICTION
On January 28, 2008 appellant filed a timely appeal from a January 10, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied his traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On November 25, 2007 appellant, then a 45-year-old lead automotive technician, filed a
traumatic injury claim alleging that he sustained injury to his middle back, right and left sides in
the performance of duty on October 17, 2007. He explained that while he was working
underneath a trailer he struck his back on the undercarriage. Appellant did not stop work. The

employing establishment controverted the claim, noting that appellant did not receive medical
treatment until 21 days after the alleged incident.
In support of his claim, appellant submitted a November 8, 2007 health care note from
the Department of Veterans Affairs (VA), from a physician whose name is not legible, advising
that appellant was unable to lay or work on his back or his side.
By correspondence dated December 6, 2007, the Office requested additional information
concerning appellant’s claim.
In a November 5, 2007 note, Dana Hess, a physician’s assistant, noted that appellant was
unable to lift more than 40 pounds or to work lying on his back for 90 days. A February 20,
2001 decision of the VA awarded service-connected disability for various conditions.
In an October 17, 2007 statement, Kim M. Corcoran, appellant’s supervisor, advised that
appellant reported sustaining an injury at work on that day. She explained that appellant was
working under his trailer in a squatting position and, when he attempted to get out from under the
trailer, he struck his back on a side marker light. Ms. Corcoran stated that appellant informed her
that he was in moderate pain for a few minutes, but that he continued to work. He later informed
her that he was experiencing some stiffness but was able to continue working and did not need
medical attention.
In a December 8, 2007 statement, appellant reiterated that he was injured on October 17,
2007 when he struck his back on a side marker light protruding from the trailer under which he
was working. He noted that he had a preexisting back condition and that he believed the
October 17, 2007 incident aggravated his condition. Appellant explained that he reported his
injury to his supervisor, Ms. Corcoran, but that she did not advise him to fill out a traumatic
injury claim. He believed that he was not eligible for workers’ compensation because of his
prior back condition, which was service connected. Appellant did not realize he could file a
claim until he called the Office.
Appellant also provided a December 19, 2007 report from Dr. Anand Deshmukh, a
Board-certified internist, who noted appellant’s history of a back injury at work on
October 17, 2007. Dr. Deshmukh explained that appellant was squatting down under a trailer
and struck his back on a side marker light. He noted that appellant had a history of severe back
pain, particularly while laying on his back or side. On physical examination, conducted on
December 18, 2007, Dr. Deshmukh noted tenderness over the lumbosacral region with
paraspinal muscle spasm as well as radicular pain and weakness in the lower extremities,
particularly the right lower extremity. He recommended that appellant undergo further
diagnostic testing but did not render a diagnosis.
By decision dated January 10, 2008, the Office denied appellant’s traumatic injury claim
on the grounds that appellant had not established that an incident occurred in the performance of
duty and had not submitted medical evidence rendering a diagnosis that could be connected to
the claimed work-related events.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
Generally, fact of injury consists of two components which must be considered in conjunction
with one another. The first component to be established is that the employee actually
experienced the employment incident which is alleged to have occurred.4 An injury does not
have to be confirmed by eyewitnesses in order to establish that an employee sustained an injury
in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.5 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.6
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.7 However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative force and will
stand unless refuted by strong or persuasive evidence.8
The second component in establishing fact of injury is whether the employment incident
caused a personal injury and generally this can be established only by medical evidence.9 As

1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

See Louise F. Garnett, 47 ECAB 639 (1996).

5

See Gene A. McCracken, 46 ECAB 593 (1995).

6

See Louise F. Garnett, supra note 4.

7

Linda S. Christian, 46 ECAB 598 (1995).

8

Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

9

See John J. Carlone, 41 ECAB 354, 357 (1989).

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part of this burden, the claimant must present rationalized medical evidence based upon a complete
factual and medical background showing causal relationship.10
ANALYSIS
The Office denied appellant’s traumatic injury claim on the grounds that he had failed to
establish that an incident occurred as alleged and that he had not submitted a medical report
rendering a diagnosis related to employment events. The Board finds that appellant has
established that the October 17, 2007 incident occurred in the performance of duty. However, he
has not established that the incident caused or contributed to his back condition.
Appellant reported that he was injured on October 17, 2007, when he struck his back on a
side marker light protruding from a trailer under which he was working. His supervisor,
Ms. Corcoran, stated that appellant reported his injury to her on the same day. She agreed with
appellant’s version of events and supported that an incident occurred when he struck his back on
a side marker light. Appellant repeated the same history to Dr. Deshmukh when he was
examined on December 18, 2007. The Board finds that appellant’s stated history of injury is
consistent and supported by Ms. Corcoran’s statement. As noted, an employee’s statement that
an incident occurred in a certain time, place and manner holds great probative force and will
stand unless refuted by strong and persuasive evidence.11 There is no evidence of record to
dispute that events did not take place as alleged. On the contrary, the record consistently
supports appellant’s version of events. Appellant also promptly reported the incident to his
supervisor and provided a reasonable explanation for why he did not sooner seek medical
treatment or file a claim form. There are no such inconsistencies in the factual and medical
evidence to cast serious doubt on the validity of appellant’s claim. Accordingly, appellant has
established that an incident occurred in the performance of duty on October 17, 2007, at the time,
place and in the manner alleged.
However, the Board finds that appellant has not met his burden of proof in establishing
that the incident caused a personal injury. Appellant has not submitted sufficient medical
evidence that relates his back condition to the employment incident.12 In support of his claim, he
provided two work restriction notes, one from Mr. Hess and one from the VA. Neither health
care provider addressed whether the October 17, 2007 incident caused or contributed to an
injury. The note by Mr. Hess, a physician’s assistant, cannot be considered medical evidence as
a physician’s assistant is not a “physician” as defined by section 8101(2) of the Act.13 While the
November 18, 2007 note is signed by a physician, the physician’s name is illegible and the note
10

Calvin E. King, 51 ECAB 394 (2000); Joseph T. Gulla, 36 ECAB 516 (1985).

11

Id.

12

On appeal appellant submitted additional medical evidence. The Board, however, notes that it cannot consider
this evidence for the first time on appeal because the Office did not consider this evidence in reaching its final
decision. The Board’s review is limited to the evidence in the case record at the time the Office made its final
decision. 20 C.F.R. § 501.2(c).
13

See J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007). See 5 U.S.C. § 8101(2) (defines the
term “physician” as it is used in the Act).

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does not relate a diagnosed condition to the work incident of October 17, 2007. Thus, this
evidence is insufficient to establish appellant’s claim.
Appellant also provided a December 19, 2007 report from Dr. Deshmukh. Although
Dr. Deshmukh noted that appellant had a history of a back condition and related the history of
the October 17, 2007 employment incident, he did not render a diagnosis or address how the
employment incident caused or aggravated a diagnosed condition. He did not address the nature
or extent of appellant’s preexisting back condition or explain how the incident caused or
contributed to any disability for work. The Board has held that a person who claims benefits for
a work-related condition has the burden of establishing by the weight of the medical evidence a
firm diagnosis of the condition claimed and a causal relationship between that condition and
factors of federal employment.14 Because Dr. Deshmukh did not diagnose a specific condition
and relate such condition to the accepted employment incident, the Board finds that the medical
evidence is insufficient to establish that appellant sustained a compensable injury in the
performance of duty.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14

E.g., Patricia Bolleter, 40 ECAB 373, 377 (1988).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY STATION, Oakland, CA, Employer
__________________________________________
Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1205
Issued: April 5, 2021

Case Submitted on the Record

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

On May 14, 2020 appellant filed a timely appeal from a January 10, 2020 merit decision
and an April 20, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The Clerk of the Appellate Boards assigned Docket No. 20-1224.
On May 27, 2020 appellant, through counsel, filed a second appeal from the same
January 10, 2020 OWCP merit decision. The Clerk of the Appellate Boards inadvertently assigned
Docket No. 20-1205.
The Board has duly considered the matter and concludes that, since there are now two
docket numbers assigned for a review of the same OWCP decision, one of the docket numbers
must be dismissed. Since the Clerk of the Appellate Boards inadvertently assigned Docket No.

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.

20-1205 to appellant’s second appeal request, this docket number shall be dismissed. The appeal
docketed as No. 20-1224 will go forward. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-1205 is dismissed.
Issued: April 5, 2021
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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 14-242
Issued: May 9, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant, through his attorney, filed a timely appeal from a
September 6, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdictions over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related permanent
impairment to a scheduled member or function of the body entitling him to a schedule award
under 5 U.S.C. § 8107.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated August 15, 2011,
the Board found that a conflict in the medical evidence existed on the issue of an employment1

5 U.S.C. § 8101 et seq.

related permanent impairment.2 As the Board noted, the conditions accepted as causally related
to the June 4, 2002 motor vehicle accident were cervical and lumbar strains, left knee contusion
and herniated discs at L4-5 and L5-S1. The case was remanded to OWCP for resolution of the
conflict. The history of the case as provided in the August 15, 2011 Board decision is
incorporated herein by reference.
On return of the case record, OWCP selected Dr. Gordon Hardy, a Board-certified
orthopedic surgeon, as a referee physician. An August 23, 2011 statement of accepted facts
(SOAF) reported the accepted left knee condition as a sprain and indicated that the condition of
aggravation of cervical degenerative disc disease was accepted as employment related. In a
report dated October 6, 2011, Dr. Hardy provided a history and results on examination. He
stated that appellant had some mild paracervical and paralumbar tenderness, with no radicular
symptoms and full range of motion of both arms and legs, including both knees. He reported
motor function and sensation were intact. Dr. Hardy stated that objective findings were
“minimal.” He noted that under FECA no spinal impairment was permitted but impairments
could be found under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) and, for spinal nerve impairments affecting the extremities, the
July/August 2009 The Guides Newsletter was used. The referee physician opined:
“[Appellant] does have degenerative disc disease in the cervical and lumbar spine
as documented by multiple magnetic resonance imaging (MRI) scans during his
treatment course. However upon physical examination the patient has no
evidence of radicular signs or symptoms in the upper or lower extremities today.
Further, the most recent NOV study does not demonstrate any evidence of
radiculopathy or nerve root impairment into the lower extremity as previously
noted.
“Therefore, based on the specific parameters as outlined above regarding FECA,
Awards for Permanent Impairment in relation to a spinal nerve injury, there is no
basis for impairment on upper or lower extremities caused by injury to a spinal
nerve. The patient has a zero percent impairment rating at this time regarding his
1umbar condition as well as his left knee sprain.”
On January 6, 2012 OWCP prepared a new SOAF that indicated that accepted left knee
injury was a contusion, and referred the case to Dr. Hardy for an additional report. By report
dated July 16, 2012, Dr. Hardy noted that a left knee contusion was accepted, and reiterated that
appellant had full range of motion in the knee. He opined that there was no impairment to the
left knee and that the left knee contusion would have resolved during the course of treatment.
By decision dated July 25, 2012, OWCP found appellant was not entitled to any schedule
award based on the evidence of record. Appellant requested a hearing and, by decision dated
January 22, 2013, OWCP’s hearing representative remanded the case.
The hearing
representative found that OWCP procedures required referral of the evidence to an OWCP
medical adviser for an opinion as to permanent impairment.
2

Docket No. 11-270 (issued August 15, 2011).

2

In a report dated January 25, 2013, OWCP’s medical adviser indicated that he had
reviewed the evidence. The medical adviser opined that the reports from Dr. Hardy were
excellent reports that properly applied the A.M.A., Guides.
By decision dated February 4, 2013, OWCP again found that appellant was not entitled to
a schedule award.
Appellant requested a hearing before an OWCP hearing representative, which was held
on June 11, 2013. He submitted reports dated March 4, April 1 and June 3, 2013 from
Dr. Bradley Katz, a Board-certified anesthesiologist, regarding lumbar pain treatment.
In a decision dated September 6, 2013, OWCP’s hearing representative affirmed the
February 4, 2013 OWCP decision. The hearing representative found the weight of the evidence
was represented by Dr. Hardy.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
Neither FECA nor its regulations provide for a schedule award for impairment to the
back or to the body as a whole. Furthermore, the back is specifically excluded from the
definition of “organ” under FECA.6 For peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP procedures indicate that The Guides Newsletter
“Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”(July/August 2009) is to be
applied.7

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(b).
4

A. George Lampo, 45 ECAB 441 (1994).

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

6

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

7

See G.N. (Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part
3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

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It is well established that when a case is referred to a referee specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.8
ANALYSIS
In the prior decision, the Board found that a conflict existed with respect to a permanent
impairment and the case was remanded for selection of referee physician in accord with 5 U.S.C.
§ 8123(a). Dr. Hardy was selected as a referee physician and provided reports dated October 6,
2011 and July 16, 2012. The referee physician opined that appellant did not have a permanent
impairment under the A.M.A., Guides for spinal nerve injuries. Dr. Hardy explained that the
objective findings were minimal, there were no radicular symptoms, the motor and sensory
functions were intact, and there was full of range of motion. Based on these examination
findings, Dr. Hardy found no ratable permanent impairment for spinal nerve injuries.
By report dated July 16, 2012, Dr. Hardy noted that a left knee contusion was accepted,
and reiterated that appellant had full range of motion in the knee. He opined that there was no
impairment to the left knee and that the left knee contusion would have resolved during the
course of treatment.
As noted above, the opinion of a referee physician, if based on a proper factual and
medical background and accompanied by medical rationale, is entitled to special weight.
Medical rationale is a medically sound explanation for the opinion offered.9 Dr. Hardy’s opinion
was a logical, sound result of his examination findings and review of the evidence of record.
The Board finds that the opinion of the referee physician, Dr. Hardy, is entitled to special weight
and represents the weight of the evidence. OWCP’s medical adviser also concurred with the
opinion of Dr. Hardy.10 Appellant submitted reports from Dr. Katz, who did not address the
issue of an employment-related permanent impairment to a scheduled member or function of the
body. These reports are of limited probative value to the issue presented.
On appeal, appellant’s representative argues that OWCP should not rely on The Guides
Newsletter for impairment ratings, as the methodology is “pseudoscience” or “junk science.” As
noted above, OWCP has adopted the use of The Guides Newsletter in its procedures for
peripheral nerve impairments based on spinal nerve injuries. The Board has recognized that the
methodology found in The Guides Newsletter should be used to properly determine an
impairment to the extremities from spinal injuries.11 The argument that the methodology in The

8

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
10

The Board notes that while an OWCP medical adviser may review the findings of a referee physician it is the
referee who must resolve the conflict. See Thomas J. Fragale, 55 ECAB 619 (2004).
11

See M.W., Docket No. 13-928 (issued August 15, 2013).

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Guides Newsletter is flawed and represents “junk science” has been considered by the Board and
found to be without merit.12
The Board finds that OWCP properly determined that appellant was not entitled to a
schedule award based on the weight of the medical evidence. Appellant may request a schedule
award at any time before OWCP based on the submission of probative evidence as to an
employment-related permanent impairment to a scheduled member or function of the body under
5 U.S.C. § 8107 and 20 C.F.R. § 10.404.
CONCLUSION
The Board finds that appellant has not established an employment-related permanent
impairment to a scheduled member or function of the body entitling him to a schedule award
under 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2013 is affirmed.
Issued: May 9, 2014
Washington, DC

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

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

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

12

See D.S., Docket No. 14-12 (issued March 18, 2014).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 18-0814
Issued: January 18, 2019

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 7, 2018 appellant, through counsel, filed a timely appeal from a February 15,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days have elapsed from the last merit decision, dated November 7, 2016, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 23, 2016 appellant, then a 51-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on March 18, 2016, she injured her right shoulder, right lower back,
and right ankle/foot. She attributed her injury to an overcrowded room, which reportedly included
a patient’s electric wheelchair, bed, reclining chair, and intravenous (IV) poles. On the reverse
side of the Form CA-1, the employing establishment indicated that appellant was injured in the
performance of duty and that she had been seen by a nurse at its facility on March 18, 2016.
A March 23, 2016 note from Barry J. Wanninger, a certified physician assistant, indicated
that appellant was treated earlier that day in the emergency department at Mercy Hospital of
Fairfield. He advised that appellant could return to work on March 26, 2016. The accompanying
emergency department treatment notes indicated that appellant worked as a nurse and reported
having tripped and fell five days ago. Appellant stated that she fell backwards and believed she
tripped over an IV pole. Right shoulder and right ankle x-rays obtained on March 23, 2016
revealed no evidence of an acute injury. Mr. Wanninger placed appellant in an air cast, prescribed
a muscle relaxant (Robaxin), and discharged her with a clinical impression of right shoulder and
right ankle pain.
A May 5, 2016 right ankle magnetic resonance imaging (MRI) scan revealed, inter alia,
tendinopathy, tenosynovitis, degenerative changes, and a thickened anterior talofibular ligament,
consistent with a prior sprain. Appellant was reportedly injured in March 2016 when an IV pole
fell on her right ankle.
In an October 4, 2016 development letter, OWCP informed appellant of the evidence
necessary to establish her claim and requested that she submit additional factual and medical
evidence. It noted that she had not clearly specified how her injury occurred and, as such, the
evidence of record was insufficient to establish that she actually experienced the incident alleged
to have caused her injury. OWCP requested that appellant explain how the “crowded room”
caused her March 18, 2016 alleged employment injury. It further noted that it had not received
sufficient medical evidence to support her claim. OWCP afforded appellant 30 days to submit
additional evidence and to respond to its inquiries. It did not receive additional evidence within
the allotted time.
By decision dated November 7, 2016, OWCP denied appellant’s claim, finding that she
had not submitted a statement clearly explaining how she was injured on March 18, 2016. It also
noted that she had not submitted medical evidence containing a diagnosis in connection with her
alleged employment injury.

2

OWCP subsequently received a September 7, 2016 physical therapy treatment note with a
diagnosis of right posterior tibialias tendinitis.3
On October 3, 2017 counsel timely requested reconsideration of OWCP’s November 7,
2016 decision. He also submitted various treatment records from appellant’s podiatrists,
Dr. Cynthia Miller and Dr. Michael C. Doran, which covered the period April 17, 2013 through
March 11, 2014, January 5 through February 3, 2015, and April 19, 2016 through June 1, 2017.
Dr. Miller began treating appellant on April 17, 2013 for a right ankle injury that reportedly
occurred three weeks prior when appellant fell off a treadmill. Appellant followed up with
Dr. Miller regularly through March 11, 2014.
In a report dated January 5, 2015, Dr. Miller examined appellant for complaints of bilateral
heel pain. She diagnosed calcaneal spur, plantar fascial fibromatosis, enthesopathy, and bursitis.
Appellant continued to follow up with Dr. Miller through February 3, 2015.
In a report dated April 19, 2016, Dr. Miller examined appellant for complaints of right foot
pain of a “few weeks” duration. Appellant told Dr. Miller that, while at work, she tripped over
some cords and fell. She noted that when she fell, “everything came on top of her.” Dr. Miller
diagnosed foot and ankle arthritis, edema, tendon rupture, posterior tibial tendinitis, and plantar
fasciitis. Appellant continued to follow up with Dr. Miller through June 1, 2017.
By decision dated February 15, 2018, OWCP denied appellant’s request for
reconsideration without reviewing the merits of her claim. It explained that the medical evidence
submitted on reconsideration was not relevant to the issue of whether appellant established that
the March 18, 2016 employment incident occurred as alleged.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
3

The physical therapy treatment note was accompanied by a request for authorization for medical services provided
on September 7, 2016.
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
4

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

3

interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration under
5 U.S.C. § 8128(a).
In his correspondence received on October 3, 2017, counsel noted that he was submitting
various medical records on reconsideration. However, he did not show that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Thus, appellant is not entitled to a review of the merits based on the first
and second requirements under section 10.606(b)(3).9
Counsel also failed to submit relevant and pertinent new evidence with the October 3, 2017
request for reconsideration. As noted, he submitted various medical records from appellant’s
podiatrists, some of which predated the alleged March 18, 2016 employment incident. The
underlying issue in this case is whether appellant established that the employment incident of
March 18, 2016 occurred as alleged. A claimant may be entitled to a merit review by submitting
pertinent new and relevant evidence, but appellant did not do so in this case.10 While Dr. Miller’s
April 19, 2016 treatment notes contained a history of injury as communicated by appellant, she
has yet to provide OWCP her own personal statement or any witness statements regarding the
circumstances of the alleged March 18, 2016 employment incident.11 The Board has held that the
submission of evidence that does not address the particular issue in the case does not constitute a
basis for reopening the claim.12 Because appellant did not provide relevant and pertinent new
evidence she is not entitled to a review of the merits based on the third requirement under section
10.606(b)(3).13 Accordingly, OWCP properly denied appellant’s request for reconsideration under
5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

9

20 C.F.R. § 10.606(b)(3)(i) and (ii).

10

Id. at § 10.606(b)(3)(iii).

11

See B.P., Docket No. 16-1549 (issued January 18, 2017).

12

See David J. McDonald, 50 ECAB 185 (1998).

13

20 C.F.R. § 10.606(b)(3)(iii).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 18, 2019
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

5


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

)
)
)
)
)
)
)
)

Appearances:
Joanne M. Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0922
Issued: October 4, 2019

Case Submitted on the Record

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

JURISDICTION
On March 26, 2019 appellant, through counsel, filed a timely appeal from a December 19,
2018 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his bilateral upper extremities, warranting a schedule award.
FACTUAL HISTORY
On December 1, 2001 appellant, then a 54-year-old full-time letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, a string attached along a property line caused
him to fall on his right shoulder while in the performance of duty. He also alleged that his neck
was “bothering him.” OWCP accepted the claim for neck sprain and right shoulder tendinitis. It
subsequently accepted that appellant sustained a recurrence of disability on December 31, 2001
causally related to his accepted December 1, 2001 employment injuries.
On March 16, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated March 21, 2017, OWCP advised appellant of the deficiencies
in his schedule award claim. It requested that he submit an impairment evaluation from his treating
physician addressing whether he had attained maximum medical improvement (MMI) with an
impairment rating according to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).3 OWCP afforded appellant 30 days
to respond.
In response, appellant submitted a report dated April 7, 2017 by Dr. Rima El-Abassi, an
attending neurologist. The report noted that appellant was evaluated for residual estimated
maximum functional capacities following an injury to the cervical spine and upper extremities
resulted from his 2001 work-related fall. Appellant underwent C5-6, C6-7 anterior cervical
discectomy and fusion (ACDF) in 2005 due to central canal stenosis. He was examined and
diagnosed with having cervical stenosis with myelopathy. Appellant’s clinical condition was
assumed to be stabilized and not likely to improve with surgical intervention or active medical
treatment. Only medical maintenance care was warranted. The report indicated that the degree of
impairment was not likely to change substantially within the next year. Appellant was not likely
to suffer sudden or subtle incapacitation. The report noted that the diagnosis-based impairment
(DBI) rating method of the sixth edition of the A.M.A., Guides was used to calculate appellant’s
bilateral upper extremity permanent impairment. Under Table 15-20, page 434, a diagnosis of
cervical stenosis with upper extremity peripheral nerve impairment impacting strength and range
of motion (ROM) (brachial plexus impairment C5 through C8, and Tl) was identified and
represented a class 1, grade C impairment. Based on Table 15-7, a grade modifier 2 was assigned
for functional history (GMFH). No grade modifiers for physical examination (GMPE) and clinical
studies (GMCS) were assigned under Table 15-8 and Table 15-9, respectively. The net adjustment
formula, page 411, was applied resulting in a total net adjustment of +2, which required movement
of the grade C impairment to grade E, for 13 percent permanent impairment of each upper
extremity. The impairment ratings for each upper extremity were combined, page 604, which
yielded 24 percent permanent impairment of the upper extremities and equated to 14 percent whole
3

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

2

person permanent impairment under Table 15-11, page 420. Alternatively, the ROM rating
method was utilized to rate impairment of each shoulder due to the absence of a recent
electromyogram/nerve conduction velocity (EMG/NCV) study. Under Table 15-34, page 475,
appellant had 10 percent permanent impairment of the right upper extremity due to addition of the
following ROM deficits for the right shoulder: 130 degrees ﬂexion; 40 degrees extension; 130
degrees abduction; 25 degrees adduction; 55 degrees internal rotation; and 75 degrees external
rotation. Under the same table, he had 11 percent permanent impairment of the left upper
extremity due to addition of the following ROM deficits for the left shoulder: 125 degrees ﬂexion;
55 degrees extension; 100 degrees abduction; 30 degrees adduction; 40 degrees internal rotation;
and 85 degrees external rotation. These impairment ratings for right and left upper extremities
were combined, page 604, which yielded 20 percent upper extremity permanent impairment which
equated to 12 percent permanent whole person impairment. Dr. El-Abassi asserted that the DBI
method should be used in this particular case because it was a higher rating than the ROM method.
In addition, the report noted that appellant had hereditary spastic paraplegia (HSP) and was
chronically disabled by his condition. Appellant also had a cervical strain with irreversible
weakness in the upper extremities.
On May 17, 2017 OWCP routed Dr. El-Abassi’s report, a statement of accepted facts
(SOAF) of even date, the case file, and a set of questions, to Dr. Michael M. Katz, a Board-certified
orthopedic surgeon serving as an OWCP district medical adviser (DMA), for review and a
determination of permanent impairment of appellant’s right upper extremity and his date of MMI.
In a report dated May 18, 2017, Dr. Katz noted that he had reviewed Dr. El-Abassi’s report
and the SOAF. He disagreed with her impairment ratings. Dr. Katz explained that the use of Table
15-20, (Brachial Plexus Impairment: Upper Extremity Impairments), was not supported by the
accepted condition in appellant’s claim. Dr. Katz also explained that a diagnosed injury
originating in the spine may be considered only to the extent that it results in permanent impairment
of the extremities, generally manifesting as spinal nerve impairment. In addition, he reasoned that
spinal nerve impairment should be determined using the method described in The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/
August 2009) (The Guides Newsletter), Proposed Tables One and Two.4 Dr. Katz further reasoned
that given the sole cervical spine accepted diagnosis of neck sprain, which was a self-limited
diagnosis, it was unclear if, in fact, the cervical fusion performed was authorized under appellant’s
claim. He recommended a second opinion evaluation.
On June 13, 2017 OWCP referred appellant, together with a SOAF, the medical record,
and series of questions, to Dr. Christopher E. Cenac, Sr., a Board-certified orthopedic surgeon, for
a second opinion impairment evaluation.
Dr. Cenac, in a report dated July 11, 2017, noted that he examined appellant on July 10,
2017 for the purposes of assessing an impairment rating. He also noted that he had reviewed the
SOAF and medical record. Dr. Cenac indicated that appellant related that he had retired from the
employing establishment on September 1, 2003.
He reported appellant’s complaints of
progressive numbness over the past several years in his right hand fingers which caused him to
4

Table 1 and Table 2, The Guides Newsletter.

3

awaken. Dr. Cenac also had to shake both hands, more so on the right than the left, to return
feeling into his hands. Appellant had no specific complaints of neck or shoulder dysfunction or
symptoms. On physical examination, Dr. Cenac reported normal reﬂexes in the upper extremities
and brisk reflexes in both lower extremities. There were no sensory deficits to pinprick or light
touch in the arms, legs, or feet. There were normal findings related to the left hand. There was
slightly diminished sensation in the right index finger. Intrinsic and pinch function were normal.
Fine and gross dexterity were also normal. There was no atrophy in the upper extremities or hands
by direct measurement. Motion was near normal in all planes of the cervical spine. There was a
healed anterior neck incision. There was no point tenderness in the cervical musculature and no
shoulder girdle atrophy. There was symmetrical near normal full motion and strength in both
shoulders. A Tinel’s test was very positive at the right elbow, markedly positive at the right wrist,
and mildly positive at the left elbow and left wrist. Cervical spine x-ray studies revealed a solid
fusion at C6-7 without instrumentation and a solid fusion at C5-6 with anterior instrumentation.
Disc spaces above the fusion were normal. Dr. Cenac reported that there were no diagnostic
records to substantiate ongoing medical treatment for appellant’s cervical spine after the June 7,
2005 fusion. He noted that appellant confirmed that the cervical surgical procedures he underwent
in May 2003 and on June 7, 2005 were not authorized under the instant claim. Dr. Cenac agreed
with Dr. Katz that appellant’s initial diagnosis of neck sprain was self-limited and had long since
resolved. Similarly, he maintained that his diagnosis of right shoulder tendinitis had also resolved.
Dr. Cenac advised that appellant had no evidence of residuals in the cervical spine or right shoulder
causally related to the accepted December 1, 2001 employment incident. He concluded that
appellant had no permanent impairment causally related to the accepted employment incident.
OWCP, in a letter dated August 8, 2017, requested that appellant submit a report from
Dr. El-Abassi addressing Dr. Cenac’s July 11, 2017 findings. It afforded him 30 days to respond.
On September 12, 2017 OWCP requested that Dr. Katz review Dr. Cenac’s findings. In a
letter dated September 14, 2017, Dr. Katz indicated that he had reviewed Dr. Cenac’s report and
agreed with his opinion that appellant had no bilateral upper extremity permanent impairment.
Utilizing Table 15-5, page 402, Shoulder Regional Grid, of the sixth edition of the A.M.A., Guides,
he found that a diagnosis of tendinitis was a class zero impairment defined as no significant
objective findings at MMI with an assigned default value of zero percent. Dr. Katz noted that
there was no net adjustment value, resulting in zero percent permanent impairment of the right and
left upper extremities. He determined that, under proposed Table 1, Spinal Nerve Impairment:
Upper Extremity Impairment, The Guides Newsletter, spinal nerves C5, C6, C7, C8, and T1 with
no motor or sensory deficit represented a class zero impairment with a default value of zero
percent. Dr. Katz again noted that there was no net adjustment value, resulting in zero percent
permanent impairment of the cervical spine. He opined that his determination was supported by
the records reviewed and consistent with the methodology set forth by the sixth edition of the
A.M.A., Guides. Specifically, Dr. Katz maintained that grade modifiers for functional history,
physical examination, and clinical studies were assigned according to the parameters set forth in
Table 15-7, Table 15-8, and Table15-9 and the tables in The Guides Newsletter. He advised that
the medical evidence of record was not sufficient to render a rating based on the ROM rating
method. Dr. Katz reasoned that the record/report in question failed to document three independent
measurements of each arc with the greatest ROM used for the determination of impairment. He
further reasoned that a complete arc of motion was not supplied in all planes for which impairment
may be rating per the ROM impairment table. Dr. Katz noted that there were no discrepancies
4

between his bilateral upper extremity impairment ratings and those of Dr. Cenac. He reported that
appellant had reached MMI on July 10, 2017, the date of Dr. Cenac’s impairment evaluation.
In a letter dated October 26, 2017, OWCP requested that appellant obtain an additional
report from Dr. El-Abassi addressing Dr. Katz’s September 14, 2017 findings. It afforded him 30
days to respond.
In response to OWCP’s August 8, 2017 letter, appellant submitted an undated letter from
Dr. El-Abassi. Dr. El-Abassi advised that appellant was disabled as a result of his preexisting
genetic disorder, HSP, superimposed by the consequences of the “MVC” and his cervical strain
that required surgery. She continued to agree with her earlier evaluation of his disability status.
By decision dated December 13, 2017, OWCP denied appellant’s schedule award claim,
finding that the medical evidence was insufficient to establish that he had sustained permanent
impairment of a scheduled member or function of the body.
On October 15, 2018, appellant requested reconsideration. He contended that the weight
of the medical opinion evidence did not rest with Dr. Katz and Dr. Cenac because they were given
insufficient and inaccurate information. Appellant further contended that the SOAF failed to
provide information regarding his recurrence of disability.
OWCP, by decision dated December 19, 2018, denied modification of its December 13,
2017 decision, finding that appellant did not submit any additional medical evidence providing an
impairment rating under the A.M.A., Guides. It determined that the weight of the medical evidence
continued to rest with the opinions of Dr. Katz and Dr. Cenac based on the correct evidence of
record.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proof to establish that the condition for which a schedule award is
sought is causally related to his or her employment. 5 For conditions not accepted by OWCP as
being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship. 6
The schedule award provisions of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
5

L.C., Docket No. 15-1671 (issued May 24, 2016); Veronica Williams, 56 ECAB 367 (2005).

6

F.E., Docket No. 17-0584 (issued December 18, 2017).

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

5

the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine. 11 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule, regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as the
schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity, even though the cause of the
impairment originated in the spine. 12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. For peripheral nerve impairments to the
upper or lower extremities resulting from spinal injuries, OWCP procedures indicate that The
Guides Newsletter is to be applied.13 The Board has long recognized the discretion of OWCP to
adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment. 14 In
particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.15
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history, physical examination, and clinical studies.16 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).17
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

See B.W., Docket No. 18-1415 (issued March 8, 2019); J.M., Docket No. 18-0856 (issued November 27, 2018);
Pamela J. Darling, 49 ECAB 286 (1998).
12

J.M., id.; Thomas J. Engelhart, 50 ECAB 319 (1999).

13

See G.N., Docket No. 10-0850 (issued November 12, 2010); see also supra note 9 at Chapter 3.700, Exhibit 1,
n.5 (January 2010). The Guides Newsletter is included as Exhibit 4.
14

D.S., Docket No. 14-0012 (issued March 18, 2014).

15

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

16

A.M.A., Guides 383-492.

17

Id. at 411.

6

diagnosis-based sections are applicable. If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and combined. 18 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable. 19
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”20 (Emphasis in the original.)
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted appellant’s claim for neck sprain and right shoulder tendinitis. Appellant
filed a claim for a schedule award due to permanent impairments resulting from these accepted
conditions.
OWCP properly routed Dr. El-Abassi’s report to the DMA, Dr. Katz.21 In a May 18, 2017
report, Dr. Katz disagreed with Dr. El-Abassi’s impairment ratings. He explained that her use of
Table 15-20, Brachial Plexus Impairment: Upper Extremity Impairments, was not supported by
the condition accepted by OWCP. Dr. Katz further explained that a diagnosed employment injury
originating in the spine may only be considered to the extent that it results in permanent impairment
of the extremities, generally reflected as spinal nerve impairment, and that it was to be determined
18

Id. at 473.

19

Id. at 473-74.

20

FECA Bulletin No. 17-06 (issued May 8, 2017); A.G., Docket No. 18-0329 (issued July 26, 2018).

21

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file should be routed to a
DMA for an opinion concerning the nature and percentage of impairment in accordance with the A.M.A., Guides,
with the DMA providing rationale for the percentage of impairment specified. See Federal (FECA) Procedure Manual,
supra note 10 at Chapter 2.808.6(f) (March 2017). See J.J., Docket 18-1615 (issued March 5, 2019).

7

using the method outlined in The Guides Newsletter. Moreover, he advised that the accepted
condition of neck sprain was a self-limited diagnosis and it was unclear whether appellant ’s
cervical fusion was authorized. Dr. Katz indicated that the medical record lacked sufficient
information to calculate an impairment rating and recommended a second opinion impairment
evaluation.
On June 13, 2017 OWCP referred appellant to Dr. Cenac to serve as a second opinion
physician. In a July 11, 2017 report, Dr. Cenac reported essentially normal findings on physical
examination of the bilateral upper and lower extremities and cervical spine with the exception of
slightly diminished sensation in the right index finger. He also reported that cervical spine x-ray
studies were normal. Dr. Cenac advised that there were no medical findings to support ongoing
medical treatment for the cervical spine following the unauthorized June 7, 2005 fusion. He agreed
with Dr. Katz that, the accepted cervical sprain had resolved and advised that the accepted right
shoulder tendinitis had also resolved. Dr. Cenac concluded that, appellant had no permanent
impairment.
On September 14, 2017 Dr. Katz agreed with Dr. Cenac’s opinion that appellant had no
bilateral upper extremity permanent impairment. He properly applied the DBI method to
Dr. Cenac’s findings in concluding that appellant had zero percent bilateral upper extremity
permanent impairment. Dr. Katz found that, under Table 15-5 on page 402, a diagnosis of
tendinitis was a class zero impairment defined as no significant objective findings at MMI with an
assigned default value of zero percent. He determined that this resulted in zero net adjustment.
Dr. Katz also properly applied The Guides Newsletter to Dr. Cenac’s findings in concluding that
appellant had no permanent impairment of the upper extremities. He explained that appellant had
no motor or sensory impairments pertaining to the cervical spine in accordance with The Guides
Newsletter. Dr. Katz noted that an impairment rating based on the ROM method could not be
calculated because Dr. El-Abassi did not document three ROM measurements as required by the
A.M.A., Guides22 or the arc of motion of each shoulder.
As OWCP did not obtain a supplemental report from the attending physician or the second
opinion physician containing three independent measurements of each ROM in accordance with
the procedures set forth in the A.M.A., Guides and FECA Bulletin No. 17-06, the Board will
remand the case for OWCP to obtain the evidence necessary to complete the rating as described
above.23 Following this and such further development as deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

22

A.M.A., Guides 464.

23

Supra note 20.

8

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 4, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1118
Issued: November 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated October 19, 2009, which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury of his left knee on August 5, 2009.
FACTUAL HISTORY
On August 11, 2009 appellant, then a 45-year-old electronic technician, filed a
compensation claim for traumatic injury. He stated that on August 5, 2009 he kneeled on the
floor to repair a machine and experienced knee pain when he got up and walked away.
Appellant identified his injury as a left knee sprain. He stopped work that morning to go to
Inova Loudoun Hospital and returned to work later that same day. Appellant submitted as

evidence his discharge papers, which indicated that he had a knee sprain and prescribed pain
medicine. He was treated by Dr. Marwan R. Jaber, a Board-certified emergency medicine
practitioner. Appellant’s supervisor controverted his claim on the basis that a knee injury did not
result from his employment activities. The employing establishment noted that appellant had a
preexisting knee injury, as documented in a May 11, 2005 letter from his personal physician,
Dr. James Ramser, Jr., a Board-certified orthopedic surgeon.
In a letter dated August 13, 2009, the employing establishment further controverted
appellant’s claim and request for continuation of pay. It stated that he previously sustained a
nonwork-related knee injury and pointed out that the hospital discharge record from Inova
Loudoun Hospital did not indicate which knee was injured. They requested that the claim be
adjudicated as a Form CA-2. The employing establishment submitted as medical evidence a
May 11, 2005 letter from Dr. Ramser, which stated that appellant dislocated his right patella in
September 2002 and suffered from chronic lateral instability and patella chondromalacia. It also
submitted a routing slip dated December 2, 2008, where appellant requested to be upgraded from
coach class seating to business class or economy plus because of his knee condition. In addition,
the employing establishment submitted a December 19, 2008 letter denying his request for
upgraded seating.
On August 27, 2009 the Office informed appellant that he submitted insufficient evidence
to support his claim. It specifically requested that he provide a detailed description of how the
injury occurred, including any statements from any witnesses or other documentation to support
his claim and submit a detailed medical report from his physician providing a firm diagnosis of
any condition resulting from this injury and a medical opinion explaining how the claimed
condition was caused by the August 5, 2009 work incident.
On October 19, 2009 the Office issued a decision denying appellant’s claim for
compensation because of insufficient medical evidence establishing that he sustained an injury as
defined under the Federal Employees’ Compensation Act. It accepted that the alleged work
incident occurred, but determined that the evidence did not establish a diagnosed medical
condition resulting from the incident. The Office also pointed out that appellant was informed
about the deficiencies in his claim but did not submit any additional evidence. Appellant,
therefore, failed to provide sufficient medical evidence establishing that he sustained a traumatic
injury resulting from his August 5, 2009 employment incident.
LEGAL PRECEDENT
An employee seeking compensation under the Act1 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,2
including that he is an “employee” within the meaning of the Act3 and that he filed his claim

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).

2

within the applicable time limitation.4 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.6 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.8
ANALYSIS
The Board finds that appellant failed to meet his burden of proof establishing that he
sustained a traumatic injury as a result of a work-related activity. The Office accepted that the
August 5, 2009 work event occurred at the specified time, place and in the manner alleged.
Appellant failed, however, to submit medical evidence specifying a diagnosed medical condition
that is causally related to the employment incident.
The record reveals that on August 5, 2009 appellant kneeled down to repair a machine at
work and experienced pain in his left knee, which increased as he continued to walk. On appeal,
he reiterated that he experienced very sharp pain in his left knee shortly after kneeling down.
Pain, however, is a symptom, not a compensable medical diagnosis.9 The term injury as defined
by the Act refers to some physical or mental condition caused by either trauma or by continued
or repeated exposure to, or contact with, certain factors, elements or conditions.10 Appellant,

4

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

5

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

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Robert Broome, 55 ECAB 339, 342, (2004).

10

Donna A. Lietz, 57 ECAB 203 (2005); Elaine Pendleton, supra note 5 at 1149.

3

therefore, must submit medical evidence establishing that he suffered from some physical or
mental condition, more than just pain, as a result of the August 5, 2009 incident.11
Appellant submitted a hospital discharge report from Inova Loudoun Hospital where he
was treated by Dr. Jaber, who noted that he had a knee sprain but failed to provide a firm
medical diagnosis regarding his medical condition or give an opinion explaining how kneeling
down aggravated or contributed to the sprain. The discharge report is also vague because it does
not state which knee was sprained, whether it resulted from the August 5, 2009 incident or his
preexisting right knee injury. The other documentation submitted to the record pertained to
another injury appellant had sustained to his right knee. On August 27, 2009 the Office
contacted him and requested additional information, but he did not submit any additional medical
evidence. Thus, appellant failed to meet his burden of proof establishing, by the weight of the
medical evidence, a firm diagnosis of the condition claimed and a causal relationship between
that condition and factors of federal employment.12
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof establishing that he
sustained a traumatic injury that was causally related to the August 5, 2009 work incident.

11

See E.K., (Docket No. 09-1827, issued April 21, 2010) (finding that a hospital discharge report indicating
smoke inhalation but not providing a specific medical condition was insufficient to establish that appellant sustained
a traumatic injury in the performance of duty).
12

See Roy L. Humphrey, 57 ECAB 238 (2005); see Naomi A. Lilly, 10 ECAB 560, 574 (1959).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 19, 2009 is affirmed.
Issued: November 15, 2010
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 10-957
Issued: November 2, 2010

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant filed a timely appeal from the October 19, 2009 decision
of the Office of Workers’ Compensation Programs denying his claim for hearing loss. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his bilateral
hearing loss was causally related to factors of his employment.
FACTUAL HISTORY
On April 17, 2009 appellant, then a 58-year-old heavy mobile mechanic inspector, filed
an occupational disease claim alleging that his bilateral hearing loss was due to noise exposure at
work. The record reflects exposure to hammer chisels, impact wrenches, test cell equipment for
transmission, ground hop engines, test engines in tanks, generator test equipment and combat
vehicle noise.

In an August 13, 2009 report, Dr. Beatrice Smith, a Board-certified otolaryngologist,
reviewed the medical evidence and provided the results of audiometric testing. She diagnosed
bilateral high frequency hearing loss that was not caused by noise exposure in appellant’s federal
employment. Audiometric test results from 2001 to 2009 did not show a standard threshold shift
and appellant was not exposed to sufficient noise to cause hearing loss in his federal job.
Dr. Smith noted that appellant was not exposed to noise at or above 85 decibels with a timeweighted average of 75 decibels. He was not required to use hearing protection unless “someone
was beating on equipment or there was a loud motor running.” In these situations, appellant
wore hearing protection. The earliest audiogram available, dated October 9, 2001, showed
normal hearing sensitivity through 2000 hertz bilaterally with a mild high frequency loss.
Audiograms from 2003 to 2005 were essentially the same as the 2001 test but the December 28,
2005 test revealed a decrease in sensitivity in both ears. An audiogram obtained a week later, on
January 3, 2006, showed improvement. The last audiogram from the employing establishment,
dated January 9, 2009, was essentially the same as the 2006 test. The August 13, 2009
audiometric testing performed for Dr. Smith did not show a standard threshold shift in either ear
in excess of hearing loss caused by the normal aging process.
On October 6, 2009 an Office medical adviser reviewed the record and reported that
Dr. Smith found that appellant’s bilateral sensorineural hearing loss was not caused by his
federal employment.
By decision dated October 19, 2009, the Office denied appellant’s claim for bilateral
hearing loss on the grounds that the evidence did not establish causal relationship.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (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 employment factors
identified by the employee.1 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence, which includes a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.2
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
1

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

2

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

2

employment, nor his belief that his condition was aggravated by his employment, is sufficient to
establish causal relationship.3
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that his
bilateral hearing loss was causally related to factors of his employment.
Dr. Smith reviewed the medical evidence and provided the results of audiometric testing.
She diagnosed bilateral high frequency hearing loss but found it was not due to appellant’s
history of noise exposure. Audiometric test results from 2001 to 2009 did not show a standard
threshold shift and appellant was not exposed to sufficient noise to cause hearing loss in his
federal job. Dr. Smith noted that appellant was not exposed to noise at or above 85 decibels with
a time-weighted average of 75 decibels. A 2001 audiogram showed normal hearing sensitivity
through 2000 hertz bilaterally with a mild high frequency loss. Audiograms from 2003 to 2005
were essentially the same. The January 9, 2009 audiometric study was essentially the same as
the 2006 test. Based on Dr. Smith’s review of the audiograms of record, she did not find a
standard threshold shift in either ear in excess of hearing loss caused by the aging process.
Dr. Smith’s report is based on a complete and accurate factual and medical background and a
review of audiograms from 2001 to 2009. Her report establishes that appellant’s bilateral
hearing loss was not causally related to his employment.
The Office properly referred Dr. Smith’s report to the Office medical adviser, who
concurred in the finding that appellant’s hearing loss was not employment related. There is no
medical evidence of record that supports causal relation.4
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a bilateral
hearing loss causally related to factors of his employment.

3

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

The question of causal relationship is medical and must be resolved by probative medical evidence. See S.D., 58
ECAB 149 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 19, 2009 is affirmed.
Issued: November 2, 2010
Washington, DC

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

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

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

4


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

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

Docket No. 21-1085
Issued: February 22, 2022

Case Submitted on the Record

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

JURISDICTION
On July 10, 2021 appellant filed a timely appeal from a June 30, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot
contusion causally related to the accepted May 3, 2021 employment incident.
FACTUAL HISTORY
On May 17, 2021 appellant, then a 40-year-old city carrier assistant 1, filed a traumatic
injury claim (Form CA-1) alleging that on May 3, 2021 she injured the bottom of her right foot

1

5 U.S.C. § 8101 et seq.

when she stepped on a pipe embedded in the ground when delivering mail on a grassy area while
in the performance of duty. She did not stop work.
In a May 13, 2021 treatment note, Dr. Magdalen Stepek, an osteopath specializing in
occupational medicine, indicated that appellant could return to work with restrictions of no more
than four hours of walking during her shift. She diagnosed contusion of the right foot and
concluded that the injury was work related.
On May 14, 2021 appellant accepted a modified limited-duty assignment as a city carrier,
which included no more than four hours of walking during her shift.
In a May 18, 2021 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence required and provided a
questionnaire for her completion. OWCP also requested a narrative medical report from
appellant’s treating physician, which contains a detailed description of findings and a diagnos is,
explaining how the claimed employment incident caused, contributed to, or aggravated her
medical conditions. It afforded her 30 days to submit the necessary evidence.
On May 28, 2021 appellant was again seen by Dr. Stepek who diagnosed a contusion of
the right foot. Dr. Stepek prescribed medications and reiterated her work restrictions and opinion
that the injury was work related. In a referral note of even date, she referred appellant to four
weeks of physical therapy.
By decision dated June 30, 2021, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence of record was insufficient to establish that her right foot contusion was
causally related to the accepted May 3, 2021 employment incident. Consequently, it found that
appellant had not met the requirements to establish an injury and/or a medical condition causally
related to the accepted May 3, 2021 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including 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, 3 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

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019);
Joe D. Cameron, 41 ECAB 153 (1989).

2

employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
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. There
are two components involved in establishing fact of injury. First, the emp loyee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 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 specific employment factors
identified by the employee. 8
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a right foot
contusion causally related to the accepted May 5, 2021 employment incident.
In a May 13, 2021 treatment note, Dr. Stepek diagnosed right foot contusion. Similarly,
on May 28, 2021 appellant was again seen by Dr. Stepek who repeated her diagnosis of a contusion
of the right foot. OWCP’s procedures provide that, if a condition reported is a minor one, such as
a burn, laceration, insect sting, or animal bite, which can be identified on visual inspection by a
lay person, a case may be accepted without a medical report. 9 As the evidence of record establishes
diagnosed visible injuries, the Board finds that appellant has met her burden of proof to establish

4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020).

3

a right foot contusion causally related to the accepted May 5, 2021 employment incident. 10 The
case will, therefore, be remanded for payment of medical expenses and any attendant disability.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a right foot
contusion causally related to the accepted May 5, 2021 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2021 decision of the Office of Workers’
Compensation Programs is reversed. The case is remanded for further proceedings consistent with
this decision of the Board.
Issued: February 22, 2022
Washington, DC

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

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

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

10

See A.J., Docket No. 20-0484 (issued September 2, 2020); see also W.R., Docket No. 20-1101 (issued January 26,
2021); S.K., Docket No. 18-1411 (issued July 22, 2020).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Oakland, CA, Employer
__________________________________________

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

Docket No. 11-1230
Issued: February 22, 2012

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 April 26, 2011 appellant filed a timely appeal from a February 10, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) affirming termination of
her benefits effective October 8, 2010. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective October 8, 2010.
FACTUAL HISTORY
On September 21, 1998 appellant, then a 32-year-old mail processing clerk, injured
herself in the performance of her federal duties. She took mail in a dolly from the first floor and
1

20 C.F.R. §§ 8101-8193.

weighed it on a scale and, while performing these duties, her right hand and elbow hurt. OWCP
accepted appellant’s claim for sprain of the right wrist and right lateral epicondylitis. It paid
wage-loss compensation and medical benefits. Appellant returned to limited-duty work.
Appellant received treatment from Dr. George Pugh, a Board-certified orthopedic
surgeon with a Board-certified specialty in surgery of the hand, who submitted duty status
reports. On July 29, 2009 Dr. Pugh advised that appellant’s limitations included restrictions that
limited lifting to 5 pounds continuously and 10 pounds intermittently. He also limited simple
grasping to four hours a day.
OWCP referred appellant for a second opinion. In a report dated February 20, 2010,
Dr. Philip Z. Wirganowicz, a Board-certified orthopedic surgeon, noted that she injured her neck,
lower back and shoulders on May 13, 2008. He also noted that appellant had a work-related
injury to her right arm on September 21, 1998 which was felt to be related to the repetitive nature
of lifting and grasping of mail. Appellant was eventually diagnosed with right elbow
epicondylitis and possible carpal tunnel syndrome. Dr. Wirganowicz diagnosed cervical spine
strain, lumbar spine strain, trapezius strain, right lateral epicondylitis and right wrist strain. He
opined that these conditions were work related. Dr. Wirganowicz noted that the right wrist strain
appeared to have resolved. He found that appellant’s residuals were subjective with continuing
pain and that there were no objective findings to suggest ongoing residuals. With regard to
employment, Dr. Wirganowicz determined that she was capable of performing sedentary work
and, based on objective orthopedic findings, she should be able to perform her normal work
duties.
OWCP found a conflict in medical opinion and referred appellant to an impartial medical
examiner. In an opinion dated June 9, 2010, Dr. Terence J. McDonnell, a Board-certified
orthopedic surgeon, noted that the diagnoses were cervical spine strain, lumbar spine strain,
trapezius strain, right lateral epicondylitis and right wrist strain. He conducted a thorough
physical examination and reviewed appellant’s past medical history. Dr. McDonnell stated that
the physical examination showed no objective findings. He stated that the accepted conditions,
right lateral epicondyle and right wrist strain had ceased and that there were no longer any
objective findings for these injuries. Dr. McDonnell’s review of the medical records indicated
that appellant had a significant psychiatric/psychological problem that could be the cause of her
continued somatic complaints. He further opined that somatic complaints were probably more
indicative of depression than any lingering physical problems.
In an August 18, 2010 report, Dr. Michael E. Hebrard, a Board-certified physiatrist, listed
his diagnostic impressions as right lateral epicondylitis and right sprain of the wrist. He opined
with reasonable medical certainty that appellant’s ongoing condition was industrially-related
secondary to repetitive grasping, pinching and fingering that were required by her job over a
12-year period of time. Dr. Hebrard noted considerable microtrauma which led to inflammatory
changes along the tendons of the elbow and wrists. He stated that the injuries often do not
resolve themselves entirely due to the repetitive nature of the job and the building up of scar
tissue. Dr. Hebrard noted that this tissue is less receptive to recovery due to the chronic changes
as opposed to acute injuries that do not have the chronic inflammatory changes. He stated that
for this reason it was his opinion with a high degree of medical certainty that appellant’s ongoing
problems continued to linger and manifest themselves in a chronic undulating condition that

2

made it very difficult for her to maximize the functional use of her upper extremities in terms of
grasping and pinching, pulling and lifting. Dr. Hebrard concluded that her prognosis was
actually very good, provided that she was provided with structure, repetition and support that she
would need to maximize her functional recovery. He recommended a 20-pound lifting
restriction and limited overhead work with repetitive grasping, squeezing and pinching as
tolerated.
On August 31, 2010 OWCP issued a notice to terminate appellant’s compensation
benefits as the medical evidence established that she no longer had any residuals or disability due
to her accepted work injury.
In a September 22, 2010 report, Dr. Joel Weddington, an orthopedic surgeon, diagnosed
chronic right lateral epicondylitis and right hand sprain and ulnar neuropathy. He went over
exercises with appellant.
By decision dated October 8, 2010, OWCP terminated appellant’s compensation benefits
effective that date.
On October 12, 2010 appellant requested an oral hearing before an OWCP hearing
representative. At the hearing held on February 22, 2011, she testified that, as she had not
worked since December 2009, her pain decreased. Appellant could not get treatment since
benefits were stopped and, without physical therapy, she experienced shoulder and back pain.
By decision dated April 28, 2011, an OWCP hearing representative affirmed the
termination of compensation benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability had ceased or that it is no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5
FECA6 provides that, if there is disagreement between the physician making the
examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

5

Calvin S. Mays, 3 ECAB 993 (198).

6

5 U.S.C. §§ 8101-8193, 8123(a).

3

who shall make an examination.7 An impartial medical specialist’s report is entitled to greater
weight than other evidence of record as long as the conclusion is not vague, speculative or
equivocal and is supported by substantial medical reasoning.8
ANALYSIS
OWCP accepted appellant’s claim for sprain of the right wrist and right lateral
epicondylitis. However, it terminated her medical benefits and wage-loss compensation benefits
effective October 8, 2010.
Appellant’s treating physician, Dr. Pugh, opined that appellant still had residuals from
her accepted injury and was still disabled. The second opinion physician, Dr. Wirganowicz,
opined that she was capable of performing her normal work duties and that her right wrist strain
had resolved. To resolve the conflict between appellant’s treating physician and the second
opinion physician, OWCP referred appellant to Dr. McDonnell for an impartial medical opinion,
pursuant to 5 U.S.C. § 8123(a). Dr. McDonnell conducted a thorough physical examination and
reviewed her medical history. He noted that appellant had no objective symptoms of disability,
opined that her work-related condition had ceased and indicated that she had no further residuals.
Dr. McDonnell attributed her condition to a nonemployment-related psychiatric condition. The
Board finds that his opinion is sufficiently well rationalized and based upon a proper factual
background such that it is entitled to special weight as he was appointed the impartial medical
examiner.
Appellant submitted medical evidence subsequent to the report of Dr. McDonnell.
Dr. Hebrard, in a report dated August 18, 2010, indicated that her ongoing problems with right
lateral epicondylitis and right sprain of the wrist continued to linger and affect the functional use
of her upper extremities. He reached this conclusion in large part based on appellant’s
statements and tests that indicated her responses to tests of motion and motor strength. However,
Dr. McDonnell also noted her continued somatic complaints, but opined that these results were
attributable to depression, a condition not accepted as employment related, rather than any
lingering physical problems. Dr. Weddington indicated that appellant had chronic right lateral
epicondylitis and right hand sprain and ulnar neuropathy and that he reviewed exercises with her.
His report has limited probative value as he does not provide a medical opinion addressing
whether the diagnosed conditions of chronic right lateral epicondylitis and right hand sprain and
ulnar neuropathy were causally related to her employment injury.9 Accordingly, the reports of
Drs. Hebrard and Weddington are not sufficient to overcome the special weight given to the
opinion of Dr. McDonnell, the impartial medical examiner.
The Board finds that Dr. McDonnell had full knowledge of the relevant facts and
accepted conditions and evaluated the course of appellant’s condition. As a Board-certified
orthopedic surgeon, Dr. McDonnell is a specialist in the appropriate field. He clearly opined that
7

Id. at § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

8

J.W., Docket No. 11-1017 (issued December 14, 2011).

9

E.K., Docket No. 10-1920 (issued August 19, 2011).

4

appellant accepted conditions of cervical spine strain and lumbar spine strain, trapezius strain
and right lateral epicondyle and wrist strain had ceased, noting that there were no longer any
objective findings for these injuries. The Board finds that the opinion of impartial medical
specialist Dr. McDonnell constitutes the special weight of the medical evidence and is sufficient
to justify OWCP’s termination of benefits.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and medical
benefits effective October 8, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 10, 2011 is affirmed.
Issued: February 22, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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