United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Wichita, KS, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1627
Issued: February 27, 2012

Case Submitted on the Record

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 5, 2011 appellant filed a timely appeal from the February 8, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) terminating her compensation
benefits. The record also contains a May 17, 2011 merit decision from an OWCP hearing
representative affirming the February 8, 2011 termination decision.
OWCP accepted appellant’s May 28, 1998 claim for post-traumatic stress disorder arising
from a May 24, 1998 incident in which she was an air traffic controller on duty when an aircraft
crashed. Appellant stopped work and was placed on the periodic compensation rolls. On
September 27, 2010 OWCP referred appellant to Dr. Mahmoud M. Wahba, a Board-certified
psychiatrist, to resolve the conflict in medical evidence between appellant’s attending physician,
Dr. Edmond Michael Young, a Board-certified psychiatrist, and Dr. Sanford Pomerantz, a
Board-certified psychiatrist, an OWCP referral physician. The record contains a printout
(bearing the heading IFECS Report: ME024 – Appointment Schedule Notification) which
indicated that the appointment with Dr. Wahba, initially scheduled for October 18, 2010, and
rescheduled for October 25, 2010.
On December 14, 2010 OWCP proposed to terminate appellant’s compensation benefits
based upon Dr. Wahba’s report, the impartial medical specialist. On December 22, 2010
appellant requested, among other things, evidence that OWCP properly selected Dr. Wahba as

the referee physician. In a February 8, 2011 decision, OWCP terminated appellant’s
compensation effective February 12, 2011 based on Dr. Wahba’s October 29, 2010 report. On
March 7, 2011 appellant requested a review of the written record before an OWCP hearing
representative. She presented, through her husband, several arguments as well as a March 16,
2011 report from Dr. Young. In a May 17, 2011 decision, OWCP’s hearing representative
affirmed the February 8, 2011 decision.
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
compensation benefits as it has not established that Dr. Wahba was selected in accordance with
OWCP procedure.
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of impartial medical specialists
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that impartial
medical specialists will be selected on a strict rotating basis in order to negate any appearance
that preferential treatment exists between a particular physician and OWCP.1
OWCP has an obligation to verify that it selected Dr. Wahba in a fair and unbiased
manner. It maintains records for this very purpose.2 The Board has placed great importance on
the appearance as well as the fact of impartiality, and only if the selection procedures which were
designed to achieve this result are scrupulously followed may the selected physician carry the
special weight accorded to an impartial specialist. OWCP has not met its affirmative obligation
to establish that it properly followed its selection procedures.
Appellant requested that OWCP verity that Dr. Wahba was properly selected as the
referee examiner. The record contains a printout (bearing the heading IFECS Report: ME023 -Appointment Schedule Notification) which indicated that the appointment with Dr. Wahba was
initially scheduled for October 18, 2010 and rescheduled for October 25, 2010. While this
evidence suggests that Dr. Wahba might have been selected from the Physician Directory
System, the ME023 alone is insufficient to substantiate proper selection of the impartial
specialist under OWCP procedures. The evidence is not adequate to establish that Dr. Wahba
was properly selected in compliance with the rotational system using the PDS.3 OWCP’s
decision terminating appellant’s compensation benefits must be reversed due to an unresolved
conflict in medical opinion.4

1

Raymond J. Brown, 52 ECAB 192 (2001).

2

M.A., 58 ECAB 355 (2008).

3

See E.S., Docket No. 10-633 (issued September 28, 2011).

4

Due to the disposition of this case, appellant’s arguments on appeal will not be addressed.

2

IT IS HEREBY ORDERED THAT the May 17, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 27, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Tracy, CA, Employer
__________________________________________

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Appearances:
Norman F. Nivens, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-660
Issued: September 25, 2012

Case Submitted on the Record

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

JURISDICTION
On January 31, 2012 appellant, through counsel, filed a timely appeal of an August 26,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to
disability compensation for the period June 12, 2009 to January 16, 2010.
FACTUAL HISTORY
On January 20, 2009 appellant, then a 67-year-old police officer, sustained bilateral knee
pain during a mandatory physical agility assessment that required him to run 1.5 miles in 17.5
minutes. He experienced pain after he ran four blocks and quickly walked the rest of the
1

5 U.S.C. § 8101 et seq.

distance to finish in 18.5 minutes. Appellant stopped work on January 27, 2009 and did not
return. OWCP accepted his traumatic injury claim for bilateral knee sprains.2
Appellant stated in January 21 and 27, 2009 e-mails to the employing establishment’s
human resources personnel that he sustained a bilateral knee condition due to running. He did
not indicate any other mechanism of injury.
February 10, 2009 bilateral knee
certified diagnostic radiologist, exhibited
evidence of acute osseous injuries.3
Dr. Dwight H. Mukuno, a Board-certified
enlargement and possible joint effusion.

x-rays obtained by Dr. Rajiv K. Chopra, a Boardmild-to-moderate degenerative arthritis but no clear
A March 16, 2009 left knee x-ray provided by
diagnostic radiologist, showed prepatellar soft tissue

Appellant filed several claims for disability compensation for the combined period
June 12, 2009 to January 16, 2010. He provided May 18 and July 3, 2009 progress report forms
from Dr. John J. Champlin, a Board-certified family practitioner, which identified total disability
for an unknown duration.4
OWCP informed appellant by letters of August 6 and 12, 2009 that additional evidence
was needed to establish his claim. It gave him 30 days to submit a rationalized medical report
from a qualified physician explaining how his accepted bilateral knee condition rendered him
unable to perform his federal employment for the claimed period.
In a March 10, 2009 report, Dr. Champlin related that appellant developed bilateral knee,
lower back and hip pain during a mandatory physical agility run on January 20, 2009. He
specified that appellant “fell after this 1.5-mile run, landing on both knees and hands” and “has
fallen several times.” Previous radiographs exhibited bilateral degenerative knee changes, L4
and L5 retrolisthesis, and multilevel facet joint arthropathy most prominent at L4-L5 and L5-S1.
Dr. Champlin also elicited bilateral diffuse lower extremity pain during straight leg raise testing.
He remarked that appellant sustained a lumbar injury in 1994 and various knee ailments in the
1990s and 2002, but was largely asymptomatic prior to the January 20, 2009 assessment.
Dr. Champlin diagnosed bilateral knee and hip pain and exacerbation of lumbar
spondylolisthesis and facet syndrome. He opined that the run “caused a specific impact
associated [with] worsening of lumbar stenosis resulting in global bilateral lower extremity
symptomatology and low back pain” and that the knee pain was secondary to “effusion, likely
from contusion, and chondral injury during the falls caused by [appellant’s] lumbar
2

The foregoing information was incorporated into identical January 27 and April 1, 2010 statements of accepted
facts. Appellant received continuation of pay from February 10 to March 26, 2009.
3

February 12, 2009 x-rays from Dr. Chopra showed degenerative lumbar spine and left hip changes. The case
record also contains an August 18, 2009 whole body bone scan from Dr. Craig D. Weiner, a Board-certified nuclear
physician, which found possible L5-S1 facet joint arthritis, minor hip arthritis and other degenerative lumbar spine
changes.
4

Appellant later submitted additional forms for the period February 10, 2009 to June 28, 2011, all of which were
signed by either Dr. Champlin or Dr. Robert C. Duncan, an osteopath Board-certified in family medicine. Although
Dr. Champlin initially recommended sedentary duty in a February 10, 2009 form, subsequent documents advised
that appellant was totally disabled for an unspecified period.

2

symptomatology.”5 Dr. Champlin concluded that appellant was “suffering from significant
impediments to full activities of daily living or occupational activities at the present time.”
An August 21, 2009 left knee magnetic resonance imaging (MRI) scan obtained by
Dr. Ronald J. Friedman, a Board-certified diagnostic radiologist, showed posterior horn tear of
the medial meniscus. An October 5, 2009 right knee MRI scan obtained by Dr. Gregory S.
Shields, a Board-certified diagnostic radiologist, confirmed posterior horn tear of the medial
meniscus and grade III chondromalacia.
In September 14 and October 15, 2009 reports, Dr. Randall K. Schaefer, a Board-certified
orthopedic surgeon, reiterated that appellant injured his knees at work during a physical fitness
run on January 20, 2009. Following a review of the medical file, he examined appellant and
observed bilateral patellofemoral and medial joint line tenderness as well as positive
McMurray’s tests. Dr. Schaefer diagnosed bilateral medial meniscal tears and patellofemoral
pain syndrome. Regarding the extent of appellant’s disability, he deferred to Dr. Champlin’s
opinion.6
In an October 24, 2009 report, Dr. Champlin commented that appellant had preexisting
lower back and hip arthritis, but maintained that the bilateral knee injury arising from the
mandatory physical agility run rendered him disabled.
OWCP referred appellant for a second opinion examination to Dr. Kevin F. Hanley, a
Board-certified orthopedic surgeon. In a June 19, 2010 report, Dr. Hanley reviewed the April 1,
2010 statement of accepted facts and the medical file. On examination, he observed minor
patellofemoral discomfort and generalized discomfort during range of motion (ROM)
maneuvers. Dr. Hanley diagnosed resolved temporary bilateral knee aggravation with synovitis
and opined that any work-related disability was limited to the first week following the
January 20, 2009 injury.7 He cited the lack of clinical findings showing an ongoing
inflammatory condition or otherwise supporting a higher degree of physical limitation.
Dr. Hanley added that appellant’s torn menisci were attributable to an underlying degenerative
process rather than an acute consequence of the mandatory physical agility run and, in the
absence of evidence demonstrating mechanical symptomatology, did not necessitate surgery. He
restricted running to fewer than 500 yards.
By decision dated December 7, 2010, OWCP denied appellant’s compensation claim,
finding that the medical evidence did not sufficiently establish total disability for the period
June 12, 2009 to January 16, 2010.
Appellant’s counsel requested reconsideration on May 26, 2011 and submitted new
evidence. In a February 9, 2011 report, Dr. Mohinder S. Nijjar, a Board-certified orthopedic

5

Dr. Champlin acknowledged that preexisting injuries contributed to appellant’s condition, but insisted that his
federal employment “exacerbated ... and lit up previously quiescent symptomatology....”
6

Dr. Schaefer’s January 14, 2010 report noted worsening symptoms and recommended surgery.

7

Dr. Hanley also diagnosed nonindustrial degenerative disc and joint disease of the lumbar spine.

3

surgeon, detailed that appellant experienced bilateral knee discomfort halfway through the
mandatory physical agility run on January 20, 2009. He added:
“By the time [appellant] reached the destination, he was having significant pain
and stopped by a vehicle in the area and then went to sit down. When he got up,
his knees were very stiff and he could hardly walk. [Appellant] was standing and
suddenly his knee collapsed and he fell forward landing on both knees and
hands.”
Appellant remained off duty since January 26, 2009. On examination, Dr. Nijjar observed
limited lumbar ROM, diffuse tenderness, paraspinal muscle spasms and lordotic straightening.
He also found coarse knee joint crepitus and retropatellar tenderness indicative of
chondromalacia patella. Dr. Nijjar diagnosed lumbar strain and sprain, degenerative disc
disease, facet arthropathy, bilateral chondromalacia patella and torn bilateral medial menisci
based on prior MRI scans. He opined that the preexisting lumbar degenerative disc disease was
permanently aggravated by the physical agility run and subsequent fall while the meniscal tears
“could occur when there is not enough strength in knees and with running at a faster pace than ...
accustomed to doing....”8 Dr. Nijjar agreed with Dr. Champlin’s conclusion that appellant was
totally disabled.9
On August 26, 2011 OWCP denied modification of the December 7, 2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative and substantial medical opinion evidence.10 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.11
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.12 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
8

Dr. Nijjar attributed appellant’s bilateral chondromalacia patella to “repetitive kneeling, squatting and
turning....”
9

Nonetheless, Dr. Nijjar recommended modified assignment.

10

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

11

Dean E. Pierce, 40 ECAB 1249 (1989).

12

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

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addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.13
ANALYSIS
OWCP accepted that appellant sustained bilateral knee sprains while running in the
performance of duty on January 20, 2009. Appellant filed multiple claims for disability
compensation and submitted medical evidence.
The Board finds that appellant did not establish his entitlement to wage-loss
compensation because the medical evidence did not sufficiently demonstrate that he was disabled
for the period June 12, 2009 to January 16, 2010 due to his accepted condition. In a March 10,
2009 report, Dr. Champlin related that appellant became symptomatic during a mandatory
physical agility run on January 20, 2009. Following a physical examination and review of the
medical file, he diagnosed bilateral knee pain and opined that appellant experienced “significant
impediments to full activities of daily living or occupational activities.” Additional records
through October 24, 2009 also specified total disability. Although Dr. Champlin concluded that
appellant was disabled, he did not offer adequate medical rationale setting forth the
pathophysiological mechanism by which his accepted condition rendered him unable to perform
his regular duties as a police officer.14 Medical reports consisting solely of conclusory
statements without supporting rationale are of diminished probative value.15 Furthermore, while
appellant claimed that he was disabled from June 12, 2009 to January 16, 2010, Dr. Champlin
did not identify this interval.16
Dr. Schaefer and Dr. Nijjar noted in reports from September 14, 2009 to February 9,
2011 that appellant injured his knees at work due to the January 20, 2009 physical agility run.
Neither, however, provided an opinion as to whether the accepted bilateral knee sprains led to his
disability for the claimed period. Both simply deferred to Dr. Champlin’s opinion on the matter.
In the absence of sufficient medical rationale supporting a period of disability, Dr. Schaefer and
Dr. Nijjar’s reports were of limited probative value.17
On the other hand, Dr. Hanley found in a June 19, 2010 report that appellant’s bilateral
knee condition was temporary and any consequential disability lasted up to a week following the
January 20, 2009 work event. He based his opinion on a comprehensive review of the April 1,
2010 statement of accepted facts and the medical file as well as objective findings on physical

13

Jefferson, supra note 10.

14

Emma R. Bowman, Docket No. 94-2431 (issued September 13, 1996); Arita M. Cruz, Docket No. 94-1694
(issued June 11, 1996).
15

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

16

M.F., Docket No. 08-1927 (issued April 16, 2009).

17

Tracy A. Thorsen, Docket No. 93-1232 (issued July 21, 1994).

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examination that did not support any continuing disability or mechanical deficiencies. In view of
the totality of the evidence, the Board finds that appellant did not satisfy his burden of proof.
Counsel presents several contentions on appeal. First, he argues that OWCP should have
accepted as factual that appellant fell on his hands and knees sometime after the January 20,
2009 physical agility assessment. Both Dr. Champlin and Dr. Nijjar, in fact, obtained this
history of injury in their respective medical reports. The case record, however, contains e-mails
from appellant to human resources personnel dated January 21 and 27, 2009, or within one week
of the date of injury. In each e-mail, appellant attributed his bilateral knee condition to the run
itself and did not mention any subsequent fall. Taking into consideration this contemporaneous
evidence, the Board finds that OWCP properly confined the accepted mechanism of injury to the
physical agility run.18
Counsel next asserts that OWCP should have expanded appellant’s claim to include
lumbar strain and sprain, permanent aggravation of lumbar degenerative disc disease and facet
arthropathy, bilateral chondromalacia patella and bilateral torn medial menisci as diagnosed by
Dr. Champlin, Dr. Schaefer and Dr. Nijjar, inter alia. The Board’s review of a case is limited to
final decisions of OWCP. Since OWCP has yet to formally adjudicate whether the claim should
be expanded to include these new injuries, the issue is not presently before the Board.19
Finally, counsel contends that the medical evidence sufficiently established that appellant
was disabled for work for the period June 12, 2009 to January 16, 2010 as a result of his
accepted bilateral knee sprains and therefore entitled to disability compensation. The Board has
already addressed the deficiencies of the medical evidence and determined that appellant failed
to meet his burden of proof.
The Board notes that appellant submitted new evidence after OWCP issued its August 26,
2011 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.20
However, appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he is entitled to disability
compensation for the period June 12, 2009 to January 16, 2010.

18

To the extent that Dr. Champlin and Dr. Nijjar relied on this alternative account, their reports were of
diminished probative value. See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980).
19

D.P., Docket No. 12-55 (issued July 6, 2012); 20 C.F.R. § 501.2(c). See also G.A., Docket No. 09-2153 (issued
June 10, 2010) (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).
20

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the August 26, 2011 merit decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
RESEARCH LABORATORY, Adelphi, MD,
Employer
__________________________________________

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Appearances:
Robert Kemp, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1461
Issued: December 16, 2009

Case Submitted on the Record

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

JURISDICTION
On May 26, 2009 appellant filed a timely appeal from the February 6, 2009 decision of
the Office of Workers’ Compensation Programs which denied appellant’s request for an oral
hearing. Because more than one year has elapsed between the most recent merit decision dated
November 2, 2005 and the filing of this appeal on May 26, 2009, the Board lacks jurisdiction to
review the merits of her claim pursuant to 20 C.F.R. §§ 501.2 and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
This is the second appeal in the present case. In a September 30, 2004 decision, the
Board affirmed the Office’s decisions dated October 1, 2002 and January 22, 2003 finding that
appellant had failed to establish that her seizure disorder was caused by the December 4, 1984

employment incident and that the Office properly denied her request for reconsideration.1 The
facts and the circumstances of the case up to that point are set forth in the Board’s prior decision
and incorporated herein by reference.2
On July 16, 2005 appellant requested reconsideration.
In a decision dated November 2, 2005, the Office denied modification of the October 1,
2002 and January 22, 2003 decisions.
On July 7, 2008 appellant requested reconsideration.
In a decision dated August 12, 2008, the Office denied appellant’s reconsideration
request finding that the request was not timely filed and did not present clear evidence of error.
On August 26, 2008 appellant again requested reconsideration.
On January 24 and 25, 2009 appellant, through her representative, requested an oral
hearing with regard to the April 2, 1999 and April 2, 2002 Office decisions.
In a decision dated February 6, 2009, the Office denied appellant’s request for an oral
hearing. It found that the matter had previously been reviewed and that she was not entitled to
an oral hearing as a matter of right. Appellant was informed that her case had been considered in
relation to the issues involved and that the request was further denied for the reason that the
issues in this case could be addressed by requesting reconsideration from the Office and
submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.”3
Section 10.615 of the federal regulations implementing this section of the Act provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.4 The
Office’s regulations provide that the request must be sent within 30 days of the date of the
decision, for which a hearing is sought and also that “the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.”5

1

Docket No. 03-1123 (issued September 30, 2004).

2

The Office accepted appellant’s claim for contusion to the face or scalp from blunt trauma.

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

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Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,6 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.7 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Act and Board precedent.8
ANALYSIS
Appellant’s requests for an oral hearing dated January 24 and 25, 2009 were properly
denied as the evidence shows that she had previously requested reconsideration pursuant to
5 U.S.C. § 8128(a) of the Act.9 The Board finds that her request for an oral hearing was made after
the Office issued its November 2, 2005 decision on her request for reconsideration made pursuant
to 5 U.S.C. § 8128. Appellant was not entitled to an oral hearing before an Office hearing
representative as a matter of right as she had previously requested reconsideration.
In its February 6, 2009 decision, the Office acknowledged that, although there was no
entitlement to an oral hearing, it could allow such an oral hearing within its discretion. It properly
exercised its discretion by indicating that it had also denied appellant’s hearing request on the basis
that the case could be equally well addressed by requesting reconsideration and submitting
additional medical evidence. There is no evidence of an abuse of discretion in this case.10
CONCLUSION
The Board finds that the Office properly denied appellant’s requests for an oral hearing
pursuant to 5 U.S.C. § 8124(b)(1).11

6

5 U.S.C. §§ 8101-8193.

7

Marilyn F. Wilson, 52 ECAB 347 (2001).

8

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (June 1997).
9

See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was
made after the Office issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and
therefore appellant was not entitled to an oral hearing before an Office hearing representative as a matter of right).
10

See Daniel J. Perea, 42 ECAB 214 (1990).

11

The Board notes that appellant did not appeal the Office decision’s dated August 12 and November 21, 2008
and therefore these decisions are not before the Board at this time.

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2009 decision of the Office of
Workers’ Compensation Programs affirmed.
Issued: December 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., 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. 16-1012
Issued: October 21, 2016

Case Submitted on the Record

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

JURISDICTION
On April 12, 2016 appellant filed a timely appeal from a March 16, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to his accepted work incident on April 30, 2013.
FACTUAL HISTORY
On July 16, 2013 appellant, then a 47-year-old welder, filed a traumatic injury claim
(Form CA-1), alleging that he injured his lower back on April 30, 2013 while lifting parts.

1

5 U.S.C. § 8101 et seq.

A July 2, 2007 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated bilateral spondylolysis with anterior displacement of L5 on S1 and degenerative
changes at L5-S1. In a May 1, 2013 employing establishment clinic treatment note, Dr. Cedric
McCord, Board-certified in occupational medicine, noted a history that appellant had a prior
claim for low back pain in December 2009 and reported that he had an acute onset of low back
pain the previous day when lifting a heavy basket. The physician’s examination demonstrated
tenderness to palpation over the lumbar region and limited back range of motion due to severe
pain. Dr. McCord diagnosed lumbar radiculopathy, indicated with a checkmark that the
condition was employment related, and provided physical restrictions.
The employing establishment authorized examination and treatment, on an OWCP Form
CA-16, with Dr. Michael R. Wiedmer, a Board-certified orthopedic surgeon, on May 1, 2013.
In reports dated May 1, 2013, Dr. Wiedmer noted a history that appellant injured his back
the previous day when his job was changed and he had to stoop and lift all day. Appellant’s back
pain gradually progressed in severity and radiated down the left leg. Dr. Wiedmer reported that
lumbar spine x-ray revealed disc space narrowing at L5-S1 with grade 1 and 2 spondylolisthesis.
Physical examination demonstrated a positive straight-leg raise on the left. Dr. Wiedmer
diagnosed mechanical low back pain and radiculopathy and surmised that it appeared to be an
ongoing problem that was acutely aggravated by this job change at work. He prescribed
medication and advised that appellant should be off work for 72 hours and then could return to
light duty with no stooping. A May 8, 2013 MRI scan of the lumbar spine was compared with
the July 2, 2007 study. The 2013 scan demonstrated multilevel degenerative changes, most
notably at L4-5 and L5-S1 with moderate to severe foraminal narrowing at L5-S1 and no
significant central canal narrowing.
On May 9, 2013 Dr. Wiedmer advised that appellant would be off work until May 10,
2013, and on May 16, 2013 advised that appellant was released to light duty, seated work only,
with no stooping, squatting, or lifting. Dr. Gaylyn Horne, a Board-certified anesthesiologist,
performed epidural spinal injections on May 16 and 22, 2013. Appellant continued modified
duty. On June 4, 2013 Dr. Wiedmer noted that appellant reported that his back was no better
after the epidural blocks. He recommended consultation with Dr. Thomas A.S. Wilson, Jr., a
Board-certified neurosurgeon.
In a July 29, 2013 report, Dr. Wilson noted that appellant reported a history that on
April 30, 2013 he had acute onset of radiating back pain when he picked up baskets of
automotive parts at work and that he had a very similar work injury several years prior that
improved with symptomatic treatment. He noted a past history of a motor vehicle accident.
Physical examination demonstrated diffuse lumbar tenderness with decreased range of motion,
and a negative straight-leg raise test. Dr. Wilson reviewed the lumbar spine MRI scan and
diagnosed recurrent back and leg pain secondary to lumbar spondylolisthesis with spondylolysis.
He recommended physical therapy and light duty. Dr. Wilson advised that lifting was restricted
to five pounds and appellant could not stoop or deep bend and could not operate heavy
equipment. Appellant began physical therapy in August 2013.
On September 9, 2013 Dr. Wilson noted appellant’s complaint of persistent and severe
low back pain with paresthesias in both legs and intermittent weakness on the left. He provided

2

results on examination and recommended decompressive laminectomy at L5-S1 with interbody
fusion due to persistent back and leg pain secondary to lumbar spondylolisthesis at L5-S1.
Dr. Wilson requested surgery authorization.
By letter dated October 2, 2013, OWCP noted that when appellant’s claim was received it
appeared to be a minor injury that resulted in minimal or no lost time from work and, because the
employing establishment did not controvert continuation of pay or challenge the case, payment
of a limited amount of medical expenses was administratively approved. It noted that it had
reopened the claim because he requested authorization for surgery. OWCP requested additional
evidence and afforded appellant 30 days to respond to its inquiries.
In a response dated October 11, 2013, appellant noted that in July 2007 he saw
Dr. Wiedmer for low back pain and appellant began working light duty. He reported that on
April 30, 2013 his job was changed to material handler, which required repetitive unloading,
stacking, binning, rotating, and lifting engine parts that weighed 50 to 100 pounds. Appellant
advised that after doing this for a few hours his back began to hurt, and at 10:00 a.m. he was
instructed to rest for the rest of the day. He also noted that on May 1, 2013 he reported to the
employing establishment clinic and then saw Dr. Wiedmer that day and returned to work based
on his restrictions. Appellant alleged that his severe pain increased, that it restricted his daily
activities, and that currently he was in constant pain.
In support of his claim appellant submitted a June 21, 2007 letter in which OWCP
accepted sprain of back, lumbar region, with a date of injury of May 29, 2007,2 brief clinic notes
dated July 18, 2007 and January 18, 2008 from Dr. Wiedmer describing degenerative changes on
the MRI scan, a December 2, 2009 claim for a back injury that day,3 and an employing
establishment clinic note dated January 7, 2010 authorizing restricted duty.
On October 15, 2013 Dr. Wilson noted appellant’s report of his prior back injury, the
circumstances of the current April 30, 2013 injury, and his complaint of persistent severe low
back pain with bilateral lower extremity paresthesias. He described MRI scan findings and
diagnosed spondylolisthesis, lumbar stenosis, and lumbar disc degeneration. Dr. Wilson again
recommended back surgery, opining that “the need for surgery is related to his work injury of
April 30, 2013.” On October 29, 2013 he advised that appellant was under his care and would be
out of work pending surgery.
By decision dated November 13, 2013, OWCP denied the claim. It found the claimed
incident occurred as alleged, but that the medical evidence submitted was insufficient to establish
that the diagnosed condition was caused by the April 30, 2013 incident.
Appellant timely requested a review of the written record. He resubmitted Dr. Wilson’s
October 15, 2013 report. On February 19, 2014 Dr. Wilson reported that appellant needed to be
off work until a March 12, 2014 appointment. On March 12, 2014 he advised that appellant
2

The June 2007 employment injury was adjudicated by OWCP under File No. xxxxxx813 and the instant claim
for the April 30, 2013 injury under File No. xxxxxx313.
3

The December 2009 claim was adjudicated under File No. xxxxxx683 and was a short-form closure.

3

could return to light work on March 17, 2014 with a 10-pound lifting restriction and no bending.
The employing establishment authorized restricted duty.
In a decision dated May 2, 2014, an OWCP hearing representative affirmed the
November 13, 2013 decision. The hearing representative found that the medical evidence
submitted was insufficient to establish that the diagnosed lumbar spondylolisthesis, lumbar
stenosis, and lumbar disc degeneration were caused by the April 30, 2013 lifting incident.
Thereafter Dr. Wilson submitted a February 19, 2014 treatment note in which he
reiterated findings and conclusions. He advised that appellant had an L5-S1 fusion three months
earlier, but that he still reported persistent diffuse lower back pain with numbness and
paresthesias in both legs. On August 20, 2014 Dr. Wilson advised that appellant could return to
light-duty work with a 10-pound lifting limit and could not wear steel-toed boots. The
employing establishment honored these restrictions.
On April 28, 2015 appellant, through counsel, requested reconsideration. In support of
the request he submitted one-page of a November 26, 2014 report in which Dr. Mark N. Hadley,
a Board-certified neurosurgeon, noted that appellant, on April 30, 2014, had lifted a box of steel
and felt a sudden pop with sharp low back pain which had continued to the present. Appellant
continued that, although Dr. Wilson had performed an L5-S1 decompression and interbody
fusion procedure, his low back pain was unchanged and had worsened, and Dr. Wilson did not
recommend further surgery. Counsel maintained that the medical evidence, including the reports
from Dr. McCord, Dr. Wiedmer, Dr. Wilson, and Dr. Hadley, established that the lifting incident
of April 30, 2013 caused or contributed to appellant’s lumbar degenerative disc disease and
lumbar radiculopathy.
Appellant provided a September 2, 2014 report from Dr. Wilson which noted the history
of the claimed April 30, 2013 injury and appellant’s subsequent symptoms. He advised that, on
November 25, 2013, he performed a decompressive laminectomy at L5-S1 with interbody
fusion. Dr. Wilson reported that appellant did well until February 19, 2014 when he related
worsening symptoms. He noted treatment recommendations and work restrictions. Regarding
the cause of appellant’s condition, Dr. Wilson opined that “based on history as it was related to
us by him, I believe the need for surgery and subsequent treatment are related to the work injury
of April 30, 2013.”
In a merit decision dated June 4, 2015, OWCP denied modification of its prior decisions.
It reviewed the record, noting that the report from Dr. Hadley was incomplete. OWCP
concluded that the medical evidence did not contain a clear and factual explanation of how
appellant’s preexisting back condition was changed by the April 30, 2013 employment incident.
It further found that the evidence of record was insufficient to support that the April 2013
incident was a consequence of the May 29, 2007 employment injury because it was accepted for
lumbar sprain and not for extensive lumbar degenerative disc disease, which was preexisting and
not work related.4

4

Counsel withdrew representation on September 10, 2015.

4

On December 21, 2015 appellant requested reconsideration.
He submitted a
September 4, 2015 treatment note in which Dr. Wiedmer advised that, in reviewing appellant’s
films and studies, the April 2013 injury led to an acute decompensation of his problem which
failed all conservative modalities and has resulted in two lumbar spine surgeries. Dr. Wiedmer
indicated that he explained to appellant that it was not uncommon for someone with an
underlying degenerative disc to be doing well, and then have an injury which led to progression
of the problem resulting in his present condition. He concluded that it was his opinion, as well as
that of appellant’s neurosurgeon, that the lumbar spine surgeries appellant had “were directly
related to his on-the-job injury in April 2013.”
In a merit decision dated March 16, 2016, OWCP denied modification of its prior
decisions. It explained that to establish causal relationship, medical evidence must include a
specific rationalized explanation and concluded that Dr. Wiedmer’s report was insufficient
because he merely gave a general explanation without objective findings comparing appellant’s
preinjury and post-injury condition.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,5 including that he is an “employee” within the meaning of FECA and that he or she
filed his or her claim within the applicable time limitation.6 The employee must also establish
that he or she sustained an injury in the performance of duty as alleged and that his or her
disability for work, if any, was causally related to the employment injury.7
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 employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by

5

J.P., 59 ECAB 178 (2007).

6

R.C., 59 ECAB 427 (2008).

7

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

8

T.H., 59 ECAB 388 (2008).

9

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

5

the employee.10 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.11
ANALYSIS
It is undisputed that the April 30, 2013 incident occurred as alleged. The Board finds that
the medical evidence submitted, however, is insufficient to establish that this incident resulted in
an employment injury.
Medical evidence submitted to support a claim for compensation should reflect a correct
history and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.12 Appellant did not meet his burden of proof
in this case as he has failed to submit the necessary medical opinion evidence required to
establish his claim.
The July 2007 and May 2013 MRI scans did not establish a cause of any diagnosed
conditions. Such medical evidence, which does not offer any opinion regarding the cause of an
employee’s condition, is of limited probative value on the issue of causal relationship.13
Likewise, Dr. Horne’s reports dated May 16 and 22, 2014 did not include an opinion as to the
cause of any diagnosed condition. Dr. Hadley’s November 26, 2014 report is incomplete as the
history he provides, that appellant felt a pop in his back on April 30, 2013, is inconsistent with
appellant’s report that after working at a new job for a few hours on April 30, 2013 his back
began to hurt. The Board has long held that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.14
In his May 1, 2013 report, Dr. McCord diagnosed lumbar radiculopathy and indicated
with a checkmark that these conditions were employment related. When a physician’s opinion
on causal relationship consists only of checking “yes” to a form question, the opinion has little
probative value and is insufficient to establish a causal relationship.15 Dr. McCord provided no
further explanation.
Dr. Wiedmer initially surmised on May 1, 2013 that appellant’s low back pain and
radiculopathy appeared to be an ongoing problem that was acutely aggravated by duty changes at
work. While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
10

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

11

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

12

D.D., Docket No. 13-1517 (issued April 14, 2014).

13

Willie M. Miller, 53 ECAB 697 (2002).

14

Douglas M. McQuaid, 52 ECAB 382 (2001).

15

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

6

be expressed in terms of a reasonable degree of medical certainty.16 Dr. Wiedmer’s opinion on
May 1, 2013 is couched in speculative terms. He later advised on November 21, 2015 that the
April 2013 incident led to acute decompensation and resulted in two lumbar spine surgeries.
Dr. Wiedmer indicated that it was not uncommon for someone with an underlying degenerative
disc to be doing well and then have an injury which led to progression of the problem. He
concluded that appellant’s lumbar spine surgeries appellant had “were directly related to
[appellant’s] on-the-job injury in April 2013.” This opinion is again couched in speculative
terms. Furthermore, a mere conclusion without the necessary rationale explaining how and why
the physician believes that a claimant’s accepted exposure could result in a diagnosed condition
is not sufficient to meet a claimant’s burden of proof.17 Dr. Wiedmer’s opinion is insufficient to
establish that appellant’s diagnosed conditions were caused by the April 30, 2013 employment
incident.
Dr. Wilson also provided reports supporting causal relationship, including his
October 15, 2013 and September 2, 2014 reports. In the September 2, 2014 report, he opined
that “based on history as it was related to us by him, I believe [that] the need for surgery and
subsequent treatment are related to the work injury of April 30, 2013.” This opinion is of limited
probative value as it is conclusory in nature and not supported by medical rationale explaining
the reasons why the April 30, 2013 work activity caused or contributed to appellant’s back
condition.18
It is appellant’s burden to establish that a diagnosed condition is causally related to the
April 30, 2013 incident. He submitted insufficient evidence to establish an injury caused by this
incident.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury causally related to his accepted work incident on April 30, 2013.

16

Ricky S. Storms, 52 ECAB 349 (2001).

17

J.D., Docket No. 14-2061 (issued February 27, 2015).

18

Id.

19

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

7

ORDER
IT IS HEREBY ORDERED THAT the March 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Timothy M. Scheffler, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0943
Issued: July 12, 2016

Case Submitted on the Record

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

JURISDICTION
On March 18, 20151 appellant, through counsel, filed a timely appeal from a
September 24, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As the last merit decision was issued in this case on July 3, 2013, more than 180 days
before 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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 24, 2014, the date of OWCP’s last decision was
March 23, 2015. Since using March 25, 2015, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is March 18, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal counsel contends that appellant submitted relevant and pertinent new evidence
in support of his claim.
FACTUAL HISTORY
On April 10, 2012 appellant, a 49-year-old air traffic control specialist, filed an
occupational disease claim (Form CA-2) alleging an emotional condition due to factors of his
federal employment, including deviation from normal training protocol, a hostile work
environment, union and management attitude, and political views.
By decision dated May 25, 2012, OWCP denied the claim as appellant had not
established fact of injury. A request for a hearing was filed and in an October 19, 2012 decision,
an OWCP hearing representative vacated the prior decision and remanded the case for further
development. The hearing representative explained that, although the May 25, 2012 decision
was correct, appellant had submitted evidence warranting further development.
Upon further review of the evidence, by decision dated November 29, 2012, OWCP
again denied the claim for failing to establish fact of injury. It found that the evidence was
insufficient to establish a compensable factor of employment.
Appellant again requested a hearing. In a July 3, 2013 decision, an OWCP hearing
representative affirmed the prior decision.
On July 29, 2014 appellant, through counsel, requested reconsideration and submitted
additional evidence in support of his claim, including records from his Equal Employment
Opportunity (EEO) complaint. Included with these submissions was an October 22, 2013
transcript for the deposition of a coworker who testified about appellant’s skill checks, training,
and job performance. The coworker noted appellant’s overall job performance rating and
discussed protocol and appellant’s involvement.
Additionally, appellant submitted an
October 22, 2013 transcript for the deposition of his trainer, who testified in general about the
filing of appellant’s training reports and specifically about an event involving a DC 10 landing
and a Falcon ready to depart. Appellant’s trainer added that he provided appellant with daily
feedback.
By decision dated September 24, 2014, OWCP denied appellant’s request for
reconsideration of the merits finding that he had failed to submit relevant and pertinent new
evidence sufficient to warrant a merit review. Appellant also failed to show that OWCP had
erroneously applied or interpreted a point of law or to offer a relevant or legal not previously
considered by OWCP.

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.6 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.7
ANALYSIS
The Board finds that OWCP improperly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appealcounsel contends that appellant submitted relevant and pertinent new evidence
in support of his claim. In support of his July 29, 2014 reconsideration request, appellant
submitted records from his EEO complaint, including October 22, 2013 transcripts for the
depositions of his coworker and trainer. The Board finds that the deposition transcripts are
relevant and pertinent new evidence.8 These depositions present factual testimony about
appellant’s training, job performance, and the culture of his work environment. The underlying
issue is whether appellant has established a compensable factor of employment. This testimony
is new and relevant in consideration of whether appellant has established a compensable factor of
employment. The requirements for reopening a case for merit review do not include the
requirement that a claimant submit all evidence which may be necessary to discharge his burden
3

Id. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

See M.W., Docket No. 11-1287 (issued March 26, 2012) (where the Board held that OWCP improperly denied
the claimant’s request for reconsideration of his emotional condition claim on the basis that the deposition
transcripts he submitted from an EEO complaint were new and relevant evidence presenting factual testimony about
the EEO process, the investigation involving the employee’s claim, and the overall culture of the employee’s work
environment).

3

of proof. The claimant need only submit evidence that is relevant and pertinent and not
previously considered.9 If OWCP should determine that the new evidence submitted lacks
probative value, it may deny modification of the prior decision, but only after the case has been
reviewed on the merits.10
Accordingly, the Board finds that OWCP improperly refused to reopen appellant’s case
for further reconsideration of the merits. This case will therefore be remanded for merit review,
to be followed by an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2014 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.11
Issued: July 12, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
10

Id. at § 10.607(a); see also Robert G. Burns, 57 ECAB 657 (2006).

11

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

4


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

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

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

Case Submitted on the Record

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

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

5 U.S.C. § 8101 et seq.

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

2

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

2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

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

5

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

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

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

8

Id. at 515-22.

4

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

9

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

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

5

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

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

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

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

6


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

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2003
Issued: March 23, 2009

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 July 14, 2008 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated August 14, 2007 and April 24, 2008,
finding that she did not sustain an injury in the performance of duty. 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 has established that she sustained an injury while in the
performance of duty.
FACTUAL HISTORY
On November 9, 2005 appellant, then a 57-year-old distribution clerk, filed a claim for an
occupational disease, file number xxxxxx456.1 In September 2005, she first became aware of
1

In 2003, appellant developed carpal tunnel syndrome for which she filed a claim file number xxxxxx934. The
Office accepted the claim as employment related.

severe bilateral shoulder impingement syndrome and tendinitis with neck pain. On November 9,
2005 appellant first realized that her conditions were caused by sorting mail overhead on a
repetitive basis.
By letter dated December 26, 2006, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It requested addition factual and medical
evidence. The Office requested a detailed description of the employment-related activities that
she believed contributed to her condition and how long she performed such activities. It also
requested a rationalized medical report from an attending physician which described her
symptoms, results of examination and tests, diagnosis, treatment provided, the effect of treatment
and opinion with medical reasons on whether the activities in her federal employment
contributed to her condition. Appellant was afforded 30 days to submit the requested evidence.
She did not respond.
By decision dated February 8, 2007, the Office denied appellant’s claim. Appellant
failed to submit factual and medical evidence establishing that she sustained an injury while in
the performance of duty.
By letter dated March 1, 2007, appellant, through counsel, requested reconsideration. In
a February 26, 2007 statement, she related that she worked as a distribution clerk from
October 31, 1981 through September 22, 2005 when she retired on disability. Appellant
described her work duties, noting that she sorted letters for 62 carriers which required her to
repeatedly move her arms over her head. She moved her head and arms at the same time, up and
down and side to side very quickly and repetitively because the cases were very big and tall.
Appellant sorted flats such as magazines and books. She also sorted parcels in different sizes,
shapes and weights and sometimes heavy boxes, which had to be lifted repetitively from the
conveyor and pitched into hampers, one for each carrier. Appellant pulled letters and flats from
cases and pushed carts, which were very heavy at times. Following bilateral carpel tunnel
surgery between 2004 and 2005, she returned to work and was restricted to lifting light weight.
Appellant experienced pain in her shoulder a few years prior to her hand surgery which became
more intense following surgery. Her current pain was so strong that she could not lift her arms at
her sides or lift them over her shoulders with more than two or three pounds in her hands. At
night, appellant could not sleep on her side or remain in the same position for more than
15 minutes without feeling pain in her arms and shoulders.
A description of appellant’s distribution clerk position required the separation of mail in
accordance with established schemes, including incoming or outgoing mail or both. The position
also required making primary and one or more secondary distributions of incoming mail by
delivery point (for example, classified or contract station or branch or other delivery unit, general
delivery, lockboxes, rural or star route or city carrier route) based on a knowledge of the
distribution scheme established for that office. It also required a primary and one or more
secondary distributions of outgoing mail for dispatch (for example, by city, state, region, train,
highway or railway post office or airmail flight) based on a knowledge of the distribution scheme
prescribed by the Postal Transportation Service. The position could require the maintenance of
records pertaining to mails, examination of balances in advance deposit accounts, facing and
cancellation of mail, tying mail and inserting facing slips, opening and dumping pouches and

2

sacks, operating cancelling machines, recording and billing mail (for example, cash on delivery,
registered) requiring special service and rendering service at public windows.
An unsigned prescription dated August 8, 2005 stated that appellant sustained right
shoulder tendinitis from overuse. In a September 9, 2005 report, Dr. Natalio Damien, Jr., a
Board-certified radiologist, stated that a magnetic resonance imaging (MRI) scan of appellant’s
right shoulder demonstrated Grade 1 impingement syndrome with moderate tendinopathy and/or
tendinitis of the supraspinatus tendon and a small partial tear near the insertion site. In a
November 16, 2005 MRI scan report regarding appellant’s left shoulder, Dr. Damien stated that
she sustained Grade 1 shoulder impingement syndrome with mild tendinopathy/tendinitis of the
supraspinatus tendon. An October 25, 2005 treatment note from appellant’s physical therapist
described the treatment of her cervical spine and right shoulder conditions. A March 30, 2006
report of Dr. Joseph T. Barmakian, a Board-certified orthopedic surgeon, reviewed a history of
appellant’s bilateral carpal tunnel syndrome and shoulder problems and medical treatment.
Dr. Barmakian diagnosed bilateral carpal tunnel syndrome and bilateral shoulder impingement
syndrome, right worse than the left, with some positive findings consistent with impingement.
He stated that appellant was status post surgery to the left wrist followed by a revision left carpal
tunnel release. Appellant also displayed signs of recurrent right carpal tunnel syndrome and was
status post right carpal tunnel release. Dr. Barmakian opined that the diagnosed conditions were
due to work-related repetitive trauma. He found that appellant was unable to perform work
duties, which included any repetitive type activities with the hands and lifting and performing
overhead activities with either shoulder.
By letter dated June 28, 2007, the Office requested that the employing establishment
comment on the evidence submitted by appellant.
In a July 6, 2007 letter, an employing establishment injury compensation specialist stated
that as of September 1, 2005 appellant was working in a limited-duty position which involved
lifting no more than five pounds, five hours per day. Appellant was not required to lift heavy
parcels or push heavy carts. It was noted that she did not work from February 9 through June 6,
2004 as she was receiving compensation benefits following her right carpal tunnel surgery.
Appellant returned to limited-duty work on June 7, 2004 which involved lifting, pulling and
pushing no more than five pounds, eight hours per day. On June 15, 2004 she worked six hours
per day and on August 10, 2004 she worked four hours per day in the limited-duty position. The
compensation specialist stated that appellant worked in this position until January 18, 2005 when
she stopped to undergo left carpal tunnel surgery. On May 17, 2005 appellant again returned to
limited-duty work which required lifting no more than five pounds, five hours per day. She
worked in this position until September 23, 2005. It was noted that Dr. Barmakian treated
appellant’s left carpal tunnel syndrome beginning on February 24, 2005 and her shoulders on
May 9, 2005 and January 12, 2006. Appellant retired on disability during this period and had not
worked since September 23, 2005.
By decision dated August 14, 2007, the Office affirmed the February 8, 2007 decision. It
found that the factual evidence failed to establish the employment factors alleged by appellant.
The medical evidence was also insufficient to establish that she sustained an injury causally
related to factors of her employment.

3

By letter dated October 12, 2007, appellant, through counsel, requested reconsideration.
In a November 25, 2007 letter, she further described her work duties. Appellant noted that she
was only five feet tall and the cases she had to fill were more than six feet tall. To sort mail, she
extended her arms high above her head and sometimes even jumped to reach the cases.
Appellant contended that her shoulder injuries were caused by overuse of her arm muscles
during the course of many years beginning with her employment at the employing establishment
in 1981. She manually sorted each letter rapidly and one at a time for 15 years, sometimes 10
hours per day, six days per week. The movement had to be very quick because appellant was
sorting First Class mail, which could not be delayed. She stopped work from 2003 to 2005 due
to injuries to her arms.
In a November 27, 2007 report, Dr. Shan Nagendra, a neurologist, stated that appellant’s
shoulder injury was caused by her repetitive work duties. Appellant submitted medical evidence
regarding her bilateral carpal tunnel syndrome, including disability certificates from a physician
whose signature is illegible. Dr. Barmakian and Dr. Ariel Quinones, a Board-certified family
practitioner, advised that appellant was totally disabled for work during the period December 21
through 27, 2004, February 7 through May 16, 2005 and August 8 through 22, 2005 due to her
bilateral carpal tunnel syndrome. Dr. Quinones opined that she was no longer able to return to
work in her full capacity but she could work with restrictions.
By letter dated March 13, 2008, the employing establishment injury compensation
specialist contested the accuracy of appellant’s description of her work environment. The flat
case appellant referred to was 6.25 feet tall but the top shelf was about 12 inches below. As a
result, she was casing mail into a case that was 5.25 feet tall and there was no need for her to
extend her arms high above her head or jump to reach the case, as alleged. Appellant first
mentioned her right shoulder pain to Dr. Barmakian on May 5, 2005 while she was out of work
following her left hand surgery. Despite her contention that she injured her neck and shoulder
while working many years as a clerk, the first medical evidence received concerning her right
shoulder was dated May 9, 2005. At that time, appellant had been out of work since
February 24, 2005 due to her left hand surgery. The compensation specialist stated that when
appellant first became aware of her shoulder and neck conditions on September 1, 2005, she had
been working in a limited-duty position with a curtailed schedule for 15 months prior to the
filing of her claim. Moreover, Dr. Barmakian’s accompanying December 7, 2006 report
established that appellant could return to full-duty work on August 23, 2005. However,
appellant never returned to full-duty work and performed limited-duty work until September 23,
2005, when she stopped work and elected to receive disability retirement.
Dr. Barmakian’s December 7, 2006 form report stated that October 3, 2003 was
appellant’s date of injury. He opined that her left carpal tunnel syndrome and bilateral shoulder
impingement syndrome were caused by repetitive trauma at work.
By decision dated April 24, 2008, the Office denied modification of the August 14, 2007
decision. It found the factual and medical evidence were insufficient to establish appellant’s
claim.

4

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of 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 disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.6
An employee who claims benefits under the Act7 has the burden of establishing the
occurrence of an injury at the time, place and in the manner alleged, by a preponderance of the
reliable, probative and substantial evidence.8 An injury does not have to be confirmed by
eyewitnesses in order to establish the fact that an employee sustained an injury in the
2

5 U.S.C. §§ 8101-8193.

3

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

4

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

5

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

6

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

7

5 U.S.C. §§ 8101-8193.

8

See V.F., 58 ECAB __ (Docket No. 06-1497, January 30, 2007); citing William Sircovitch, 38 ECAB 756, 761
(1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

5

performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his subsequent course of action.9 An employee has not met 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.10 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 sufficient doubt on an employee’s statements in determining whether a prima
facie case has been established.11 However, an employee’s statement alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.12
ANALYSIS
Appellant alleged that she sustained bilateral shoulder and neck injuries as a result of
repetitively reaching above her head while sorting mail and pushing heavy carts as a distribution
clerk at the employing establishment from October 31, 1981 through September 22, 2005. The
Board finds that appellant has failed to establish that she sustained an injury in the performance
of duty, as alleged. There are significant inconsistencies in the evidence which cast serious
doubt upon the validity of her claim.
Appellant alleged that, due to her height, she was required to sort mail manually by
extending her arms high above her head and sometimes even jumping to reach the cases. She
contended that she sorted each letter rapidly and one at a time for 15 years, sometimes 10 hours
per day, six days per week. Appellant stated that the movement had to be very quick because she
was sorting First Class mail, which could not be delayed. She contended that she also manually
sorted flats such as, magazines and books and parcels in different sizes, shapes and weights and
sometimes heavy boxes which had to be lifted repetitively from the conveyor and pitched into
62 hampers, one for each carrier. Appellant also pulled letters and flats from cases and pushed
carts, which were very heavy at times.
However, the employing establishment controverted her claim and the accuracy of her
statements describing her work. An injury compensation specialist described the case at which
appellant worked, noting that there was no need for her to extend her arms high above her head
or jump to reach the top of the case. The employing establishment further noted that, when she
first became aware of her shoulder and neck conditions on September 1, 2005, she had been
working in a limited-duty assignment with a curtailed schedule for 15 months prior to the filing
of her claim. It related that appellant did not work from February 9 through June 6, 2004 and
received compensation benefits following right carpal tunnel surgery. She returned to
limited-duty work on June 7, 2004, which involved lifting, pulling and pushing no more than five
9

Id.; citing Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175,
1179 (1984).
10

Id.; citing Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

11

Id.; citing Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

12

Id.; citing Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

6

pounds, eight hours per day. Her work hours were subsequently reduced to six hours per day on
June 15, 2004 and four hours per day on August 10, 2004. The employing establishment noted
that appellant worked in the limited-duty position until January 18, 2005 when she stopped work
to undergo left carpal tunnel surgery. On May 17, 2005 she returned to limited-duty work,
which again involved lifting no more than five pounds, five hours per day until September 23,
2005 when she stopped work.
The medical evidence does not contain any description of the alleged employment
factors. Although Dr. Barmakian stated in his March 30 and December 7, 2006 reports that
appellant’s bilateral carpal and shoulder impingement syndromes were caused by repetitive
trauma at work, he did not specifically describe the nature of any repetitive work duties.
Although an employee’s statement alleging that an injury occurred at a given time and in
a given manner is of great probative value, there are sufficient inconsistencies regarding the
onset of the claimed conditions to cast doubt upon the validity of her claim.13 In view of the
inconsistency in the evidence regarding the employment factors that caused the claimed
conditions, appellant has not established her claim. As appellant has not established the factual
aspect of her claim, it is not necessary to address the medical evidence.14
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury while in
the performance of duty.

13

See cases cited supra note 10.

14

Alvin V. Gadd, 57 ECAB 172 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2008 and August 14, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 23, 2009
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

8