United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CARDIAC CATH LAB, Omaha, NE, Employer
__________________________________________

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

Docket No. 12-1362
Issued: December 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 11, 2012 appellant filed a timely appeal from a January 26, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
back injury in the performance of duty on July 15, 2011.
FACTUAL HISTORY
On August 9, 2011 appellant, then a 48-year-old nurse, filed a claim for injury alleging
that he sustained a back injury on July 15, 2011. He indicated that he had reinjured himself,

1

5 U.S.C. § 8101 et seq.

three days after returning to work from a prior injury, when he bent down to pick up a small
package.2
A health unit note dated August 11, 2011, signed by Greg Loyd, a physician’s assistant,
stated an impression of lumbar strain and advised that appellant should refrain from lifting,
carrying or pushing over 10 pounds.
An August 23, 2011 magnetic resonance imaging (MRI) scan diagnostic report signed by
Dr. David Poage, a Board-certified physician in diagnostic radiology, found L5-S1 high intensity
zone and an associated right lateral recess disc protrusion touching right S1 nerve root.
Dr. Victoria Halgren, a Board-certified physician in family medicine, noted in an
August 25, 2011 report that appellant was seen for back pain that he had sustained on the job
months ago and that an MRI scan report indicated that appellant had a herniated disc. On
August 29, 2011 she stated that appellant continued to experience severe low back pain from disc
herniation and that he was awaiting a neurosurgical appointment.
Also submitted were several work restriction forms signed by Dr. Halgren who indicated
that appellant’s injury was work related by a check mark.
A health unit record dated September 6, 2011, prepared by the physician’s assistant,
noted that appellant had continued back pain radiating down the left leg.
OWCP received medical records indicating that appellant sustained a work-related low
back strain on June 20, 2011. On October 3, 2011 appellant was offered a temporary light-duty
assignment to accommodate his June 20, 2011 injury.
In a decision dated November 22, 2011, OWCP denied appellant’s claim on the grounds
that the medical evidence was insufficient to establish a diagnosed medical condition which
could be connected to the accepted July 15, 2011 employment incident.
Appellant disagreed with the decision and submitted a request for reconsideration.
An October 17, 2011 report signed by Dr. Thomas Gensler, Board-certified in aerospace
medicine, noted appellant’s back pain and recommended physical therapy to accelerate recovery.
A November 15, 2011 addendum to the August 25, 2011 report from Dr. Halgren noted
that appellant’s injury was sustained at work two months prior to his visit and diagnosed
appellant with back strain with disc herniation.
Also submitted was a December 30, 2011 medical report signed by Dr. Gregory Gordon,
a Board-certified interventional radiologist, who stated that he had worked with appellant within
a professional capacity for over two and a half years, and did not see him complain of any lower
back symptoms until the July 15, 2011 injury. Dr. Gordon stated that he began treating appellant
two months following the injury. He also asserted that appellant was referred to him for “pain
2

Appellant filed this claim as a recurrence of disability from a June 20, 2011 injury. OWCP converted the claim
to a claim for traumatic injury.

2

treatment procedures for his low back pain which was sustained from work-related straining and
lifting.” Dr. Gordon noted that “there is a direct causal relationship to [appellant]’s symptoms,
physical exam[ination] and imaging findings. [Appellant]’s imaging findings are consistent with
a tear of the L5[-]S1 intervertebral disc, consistent with an annular tear and annular leak. No
significant loss of disc space height is present to suggest a chronic change.” Dr. Gordon also
explained that the “radiographic findings of discs ... may cause mass-like effects on adjacent
nerves as well as irritation from the chemical leak of the substance within disc space. This is
known as a ‘Chemical Mechanical Theory’ for low back and correlates very well with the
historical events noted throughout [appellant]’s recovery.” Dr. Gordon concluded that “I have
no question that there is a direct causal relationship between the strain and stress induced from
the lifting with the annular tear within the disc space.”
By decision dated January 26, 2012, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

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condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that the July 15, 2011 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused his back injury. The Board finds
that he did not submit sufficient medical evidence to support that his low back conditions were
causally related to the July 15, 2011 employment incident.
Dr. Halgren’s August 25, 2011 medical report mentioned that appellant had a back injury
from his work “months ago,” and diagnosed him with herniated disc. Her opinion is of limited
probative value as it is not based upon a complete medical history. Dr. Halgren did not provide a
history of appellant’s June 20, 2011 injury, nor of his July 15, 2011 injury. Lacking the
appropriate factual and medical history, she did also did not provide a rationalized medical
opinion explaining causal relationship between appellant’s lumbar strain and herniated disc
conditions and the July 15, 2011 employment incident. Similarly, Dr. Halgren’s November 15,
2011 addendum report also did not discuss the July 15, 2011 work incident, and it did not
include an opinion as to how the incident had caused his back condition. As such, the probative
value of these medical reports is limited. While Dr. Halgren’s work restriction notes indicated
that appellant’s condition was work related by a check mark, they do not satisfy the causal
relationship element of his claim. The Board has held that, without further explanation or
rationale, a check mark on a form report is not sufficient to establish causation.8
Dr. Gordon’s December 30, 2011 medical report asserted that there existed a direct
causal relationship between the strain and stress induced by lifting and the annular tear within the
disc space, and that the tear led to his back pain. However, while the report adequately explained
how the annular tear led to appellant’s symptoms, it failed to clearly explain the mechanism
through which the July 15, 2011 lifting incident had caused the annular tear. The Board also
notes that Dr. Gordon did not discuss the significance of appellant’s June 20, 2011 injury and did
not discuss in detail the lifting incident of July 15, 2011. The Board has held that medical
reports consisting solely of conclusory statements without supporting rationale are of diminished
probative value,9 and that the opinion of the physician must be based on a complete factual and
medical background, must be one of reasonable medical certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.10 As such, Dr. Gordon’s report also
failed to satisfy the causal relationship requirement of appellant’s claim.

7

James Mack, 43 ECAB 321 (1991).

8

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

9

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

10

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

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Appellant submitted additional reports from Dr. Poage and Dr. Gensler, however, these
reports did not address the causal relationship issue. While OWCP also received progress notes
from a physician’s assistant, the Board has long held that a “physician’s assistant” is not a
“physician” as defined under FECA. Their opinions are of no probative value.11 The Board
therefore finds that, as appellant did not submit rationalized medical evidence to establish that
his back condition was causally related to his July 15, 2011 employment incident, appellant has
failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on July 15, 2011.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

11

See Roy L. Humphrey, 57 ECAB 238 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Earlimart, CA, Employer
__________________________________________

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

Docket No. 19-1853
Issued: May 13, 2020

Case Submitted on the Record

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

JURISDICTION
On March 1, 2019 appellant filed a timely appeal from a December 10, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted February 16, 2018 employment incident.

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2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On February 23, 2018 appellant, then a 64-year-old sales clerk, filed a traumatic injury
claim (Form CA-1) alleging that on February 16, 2018 she experienced a sharp pain in her left arm
going up into her shoulder when picking up a box for a customer while in the performance of duty.
She noted that two days later, she could barely raise her left arm. Appellant stopped work on
February 20, 2018.
In a February 26, 2018 letter, the employing establishment controverted appellant’s claim,
asserting that she delayed reporting the incident until after the weekend. It further alleged that she
had been complaining of shoulder pain for weeks prior to the employment incident.
In a February 20, 2018 work excuse note, Dr. Jon Miyakawa, a Board-certified family
practitioner, indicated that appellant was unable to work from February 20 through March 6, 2018.
He advised that she could return to work on March 7, 2018.
In a March 8, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. In a separate letter of even date,
OWCP notified the employing establishment of appellant’s traumatic injury claim. It requested
additional information regarding the employment incident. OWCP afforded both parties 30 days
to submit the necessary evidence.
In a February 26, 2018 duty status report (Form CA-17), Dr. Miyakawa diagnosed a rotator
cuff injury of the left shoulder. He checked a box marked “yes” to indicate that the injury was
caused by appellant lifting a package. Dr. Miyakawa recommended that appellant not resume
work and provided work restrictions.
In a March 6, 2018 narrative statement, appellant noted that on February 16, 2018 around
3:30 pm, she reached for a parcel and stretched her arm which caused pain in her left arm up into
her shoulder. She explained that her supervisor had left for the day, so she was going to report the
incident the next business day. Appellant related that she iced her shoulder and took pain
medication over the weekend, but could not raise her arm to shoulder level. She indicated that,
although Monday, February 19, 2018 was Presidents’ Day and the employing establishment was
closed, she reported the incident to her supervisor and informed him that she needed to go to the
doctor on Tuesday, February 20, 2018.
In a March 6, 2018 work excuse note, Dr. Miyakawa indicated that appellant was unable
to work from February 20 through March 20, 2018. He noted that she could return to work on
March 21, 2018.
On March 6, 2018 Dr. Miyakawa requested an x-ray of appellant’s left shoulder.
In a March 12, 2018 duty status report (Form CA-17), Dr. Miyakawa diagnosed a rotator
cuff injury of the left shoulder and recommended that appellant not resume work.

2

In a March 20, 2018 duty status report (Form CA-17), Dr. Miyakawa diagnosed left
shoulder pain. He noted that appellant sustained an acute left shoulder injury from chronic,
cumulative, repetitive work. Dr. Miyakawa recommended that she not resume work.
By decision dated April 11, 2018, OWCP denied appellant’s claim finding that she did not
submit any medical evidence containing a medical diagnosis in connection with the accepted
February 16, 2018 employment incident. It noted that “left shoulder pain” and “rotator cuff injury”
were not diagnoses of a medical condition, but symptoms and descriptions of symptoms.
In an April 4, 2018 duty status report (Form CA-17), Dr. Miyakawa diagnosed left shoulder
pain and recommended that appellant not resume work.
An April 8, 2018 magnetic resonance imaging (MRI) scan of appellant’s left shoulder
demonstrated a full-thickness near full-width tear of the supraspinatus tendon, a delaminating tear
of the infraspinatus tendon, a low/mild-grade intrasubstance tear within the distal subscapularis
tendon, rotator cuff tendinosis, degenerative tearing of the labrum, a probable complete tear of the
long head biceps tendon, and moderate acromioclavicular osteoarthritis.
In an April 11, 2018 duty status report (Form CA-17), Dr. Miyakawa diagnosed multiple
tears of the tendon around the left shoulder including tears of the supraspinatus, infraspinatus,
subscapularis, labrum, and bicep tendon. He also diagnosed arthrosis of the acromioclavicular
joint. Dr. Miyakawa recommended that appellant not resume work.
In an April 12, 2018 work excuse note, Dr. Miyakawa indicated that appellant was unable
to work. He noted that appellant was awaiting appointment from a specialist regarding possible
surgery and thus could not give an exact return date.
In an April 18, 2018 medical note, Dr. Miyakawa reported that appellant had a history of
right shoulder surgery that was work related from 2004, 2005, and 2014. He noted that she had
compensated for this with her left shoulder. Dr. Miyakawa indicated that appellant may have
needed surgery for her left shoulder injury.
In an April 24, 2018 narrative statement, appellant indicated that she had worked for the
U.S. Postal Service since November 1984. She noted that she had three surgeries on her right
shoulder in 2004, 2005, and 2007. Appellant reported that after the surgeries, she became a fulltime clerk in 2007. She related that she worked from 7:30 a.m. to 4:30 p.m., five days per week.
Appellant explained that she often complained about left shoulder pain, but on February 16, 2018
when picking up a package at work, she felt her left shoulder snap.
On April 27, 2018 appellant requested an oral hearing before an OWCP hearing
representative.
In a June 7, 2018 duty status report (Form CA-17), Dr. Miyakawa diagnosed a
supraspinatus tear, labrum tear/degeneration, and acromioclavicular degeneration.
He
recommended that appellant not resume work.
In an August 14, 2018 medical note, Dr. Julia Lee, a Board-certified orthopedic surgeon,
diagnosed a rotator cuff tear. She opined that the injury was “likely a result of continuous repetitive
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motion and heavy lifting likely associated with [appellant’s] job.” Dr. Lee noted that appellant
had a left shoulder arthroscopic rotator cuff repair with extensive debridement and subacromial
decompression on June 28, 2018.
On October 16, 2018 appellant missed her scheduled oral hearing because of time zone
confusion. On October 17, 2018 she requested a review of the written record by an OWCP hearing
representative in lieu of an oral hearing.
In an October 23, 2018 medical note, Dr. Lee related that appellant injured her left shoulder
at work on February 16, 2018. She indicated that appellant had significant difficulty with forward
flexion or abduction of her arm following the work incident. Dr. Lee reported that appellant had
a rotator cuff tear which required surgical fixation of the shoulder on June 28, 2018. She opined
that “the repetitive nature of [appellant’s] occupation likely contributed to her original injury.”
In an October 23, 2018 medical note, Dr. Miyakawa related that appellant had acute pain
in her left shoulder due to chronic, cumulative injury due to her work duties. He reported that she
was in severe pain with limited range of motion. Dr. Miyakawa noted that appellant was unable
to work due to pain, tenderness, and restricted use of her left arm. He indicated that she had
recovered from surgery, but was forced to retire from her position due to the potential of reinjury.
Dr. Miyakawa opined that appellant’s injury “was from the duties of her employment.”
In an undated letter received by OWCP on October 30, 2018, appellant explained that she
did physical therapy treatment at home. She noted that she was instructed by Dr. Lee on what
activities to perform from visit to visit.
By decision dated December 10, 2018, an OWCP hearing representative affirmed the
April 11, 2018 decision finding that, although appellant has established a medical diagnosis, she
has not established that it was causally related to the accepted February 16, 2018 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

3

Supra note 1.

4
G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.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 incident identified by the claimant.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
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted February 16, 2018 employment incident.
In support of her claim, appellant submitted medical notes from Dr. Lee dated August 14
and October 23, 2018 who diagnosed a left rotator cuff tear and opined that the injury was “likely
a result of continuous repetitive motion and heavy lifting likely associated with [appellant’s] job.”
She further noted that “the repetitive nature of [appellant’s] occupation likely contributed to her
original injury.” The Board has held that the mere fact that symptoms arise during a period of
employment or produce symptoms revelatory of an underlying condition does not establish a
causal relationship between a diagnosed condition and employment factors.12 A medical opinion
must provide an explanation of how the specific employment incident or employment factors

5

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

8

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

9

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

G.L., supra note 4; Leslie C. Moore, 52 ECAB 132 (2000).

11

A.S., supra note 6.

12

Id.

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physiologically caused or aggravated the diagnosed conditions.13 Further, the Board has held that
medical opinions that suggest that a condition was “likely” caused by work activities are
speculative or equivocal in character and have limited probative value.14 As such, these medical
notes by Dr. Lee that do not offer a rationalized medical opinion explaining causal relationship are
insufficient to establish appellant’s claim.
Appellant also submitted medical notes from Dr. Miyakawa dated April 18 and October 23,
2018 who noted that she had three previous right shoulder surgeries and had to compensate by
using her left shoulder. He diagnosed rotator cuff tear and opined that her left shoulder condition
was due to her cumulative work-related activities. While Dr. Miyakawa indicated that appellant’s
left shoulder condition was work related, he failed to provide medical rationale explaining the
basis of his opinion. As explained above, without explaining, physiologically, how the specific
employment incident or employment factors caused or aggravated the diagnosed condition,
Dr. Miyakawa’s opinion on causal relationship is of limited probative value and insufficient to
establish appellant’s claim.15
In Form CA-7 duty status reports dated February 26 through June 7, 2018, Dr. Miyakawa
diagnosed rotator cuff injury, left shoulder pain, multiple tears of the tendon around the left
shoulder, and arthrosis of the acromioclavicular joint. In these reports, he checked a box marked
“yes” to indicate that appellant’s conditions were caused by her lifting a package at work. The
Board has held that pain is a symptom and not a compensable medical diagnosis.16 Additionally,
the Board has held that when a physician’s opinion on causal relationship consists only of checking
“yes” to a form question, without explanation or rationale, that opinion is of diminished probative
value.17 Accordingly, these duty status reports from Dr. Miyakawa are also insufficient to establish
appellant’s claim.
In work excuse notes dated February 20 through April 12, 2018, Dr. Miyakawa indicated
that appellant was unable to return to work. In these notes he did not offer a medical diagnosis or
provide an opinion as to whether a diagnosed condition was causally related to the accepted
employment incident. The Board has held that medical evidence that does not include an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship. These notes from Dr. Miyakawa are therefore insufficient to establish appellant’s
claim.
Appellant also submitted an April 8, 2018 MRI scan report which revealed multiple tears
around the left shoulder and moderate acromioclavicular osteoarthritis. The Board has held,

13

G.L., supra note 4.

14

J.W., Docket No. 18-0678 (issued March 3, 2020).

15

G.L., supra note 4.

16

Id.

17

M.G., supra note 5.

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however, that diagnostic test reports lack probative value as they do not provide an opinion on
causal relationship between an employment incident and a diagnosed condition.18
As appellant has not submitted rationalized medical evidence explaining the causal
relationship between her diagnosed left shoulder conditions and the accepted February 16, 2018
employment incident, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted February 16, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

L.F., supra note 9.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, TOMS RIVER POST
OFFICE, Toms River, NJ, Employer
__________________________________________

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Docket No. 10-1729
Issued: May 9, 2011

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 17, 2010 appellant, through her attorney, filed a timely appeal of the
February 24, 2010 nonmerit decision of the Office of Workers’ Compensation Programs denying
her request for reconsideration. Because more than 180 days has elapsed between the last merit
decision dated April 30, 2009 and the filing of the appeal, the Board lacks jurisdiction to review
the merits of the case pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
On appeal, appellant’s attorney contends that the medical report of Dr. Zohar Stark, a
Board-certified orthopedic surgeon, for an impartial medical examination was not entitled to
special weight as he did not assign any impairment rating for sensory deficit of the right upper
1

5 U.S.C. § 8101 et seq.

extremity in accordance with the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (2001). Dr. Stark did not identify the type of motor
strength testing he performed on appellant’s right thumb abductors.
FACTUAL HISTORY
On October 28, 2005 appellant, then a 41-year-old rural letter carrier, filed an
occupational disease claim alleging that in July 2005 she first became aware of her right elbow
tendinitis. On October 13, 2005 she realized that her condition was caused by her employment.
By letter dated December 15, 2005, the Office accepted appellant’s claim for lateral and medial
epicondylitis of the right elbow.
On June 10, 2008 appellant filed a claim for a schedule award. The Office found a
conflict in medical opinion. Dr. Irving D. Strouse, an Office referral physician, advised in a
September 24, 2007 report that appellant had no residuals or disability causally related to her
employment-related conditions. Dr. David Weiss, an attending osteopathy found, in a
February 20, 2008 report, that appellant had 14 percent impairment of the right upper extremity.
On November 14, 2008 the Office referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Stark.
In a March 4, 2009 report, Dr. Stark reviewed a history of appellant’s accepted
employment injuries, medical treatment and social and family background. He listed findings on
physical and neurological examination of her shoulders, elbows and wrists. Dr. Stark noted less
sensitivity over an area from the distal flexor to the base of the fifth finger of the lateral aspect of
the right hand. He stated that this finding did not correspond to any nerve innervation or
dermatomal distribution. Appellant had good grip strength. She had 5/5 strength in abduction
and adduction of the fingers in both hands. Dr. Stark noted that appellant had undergone surgery
to treat her employment-related lateral epicondyle and debridement. He advised that the physical
examination did not substantiate any finding of right ulnar nerve neuropathy for which she
previously underwent surgery. Appellant did not have any motor deficits to her right thumb
abductor as noted in Dr. Weiss’ February 20, 2008 report.2 Dr. Stark advised that the use of
Table 16-10, Table 16-11 and Table 16-15 at pages 482, 484 and 492, respectively, of the fifth
edition of the A.M.A., Guides were not appropriate. He found that there were no objective
findings related to the accepted employment-related conditions. Dr. Stark noted that appellant
had subjective complaints of pain in her right lateral epicondyle and determined that she had
three percent impairment of the right upper extremity for pain based on Figure 18-1 at page 574.
In an April 30, 2009 decision, the Office granted appellant a schedule award for three
percent impairment of the right upper extremity based on Dr. Stark’s March 4, 2009 opinion.3
2

In his February 20, 2008 report, Dr. Stark advised that grip strength testing performed via Jamar Hand
Dynamometer at Level III revealed 30 kilograms of force strength in the dominant right hand versus 30 kilograms of
force strength in the left hand.
3

In the April 30, 2009 decision, the Office noted that an Office medical adviser reviewed Dr. Stark’s March 4,
2009 findings and agreed with his determination that appellant had three percent impairment of the right upper
extremity.

2

By letter dated November 24, 2009, appellant, through her attorney, requested
reconsideration. Counsel contended that Dr. Stark’s March 4, 2009 report was not entitled to
special weight accorded an impartial medical examiner. Dr. Stark noted that appellant had
sensitivity over the area of the distal flexor at the base of her fifth finger of the lateral aspect of
her right hand which was evidence of an ulnar nerve deficiency, but he did not provide an
impairment rating for sensory deficit in accordance with the A.M.A., Guides. Counsel
contended that he did not provide any evidence of the motor strength testing he performed on the
right thumb abductors. He argued that Dr. Weiss’ February 20, 2008 report which noted 14
percent impairment of the right upper extremity as a result of grade 2 sensory deficit at the ulnar
nerve and motor deficit in the right thumb was entitled to determinative weight.
In a February 24, 2010 decision, the Office denied appellant’s request for
reconsideration. It found that she failed to raise substantive legal questions or submit new and
relevant evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Act,4
the Office’s regulation provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.5 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.6 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS
Appellant did not submit any relevant and pertinent new evidence. Therefore, the issue is
whether she raised relevant legal arguments not previously considered or showed the Office
erroneously applied a specific point of law. The Board finds that the Office properly denied
appellant’s request for reconsideration as the arguments submitted were not substantiated by the
facts and circumstances of the case.
On reconsideration, counsel argued that Dr. Stark’s opinion that appellant had three
percent impairment of the right upper extremity due to pain was not entitled to special weight
accorded an impartial medical examiner. He contends that Dr. Stark did not provide an
impairment rating for his finding of sensory deficit in accordance with the A.M.A., Guides.
Dr. Stark advised that appellant had sensory loss over an area from the distal flexor to the base of
4

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

20 C.F.R. § 10.606(b)(1)-(2).

6

Id. at § 10.607(a).

3

the fifth finger of the lateral aspect of the right hand, but it did not correspond to any nerve
innervation or dermatomal distribution. He noted that there were no objective findings related to
the accepted employment injuries. Dr. Stark reported that appellant only had subjective
complaints of pain in her right lateral epicondyle. Since he found no objective evidence of
permanent impairment, Dr. Stark determined that appellant was entitled to an impairment rating
for pain under Figure 18-1 at page 574 of the A.M.A., Guides.7 The Board finds that appellant’s
contention is insufficient to reopen her claim for further merit review.
Regarding counsel’s contention that Dr. Stark did not perform grip strength
measurements, the Board notes that he reported that appellant had good grip strength bilaterally
in the hands. Dr. Stark noted that Dr. Weiss found that appellant did not have any motor strength
deficit. He advised that appellant had undergone surgery to treat her employment-related lateral
epicondyle and debridement, but noted that his physical examination did not substantiate any
finding of right ulnar neuropathy. He indicated that evaluating impairment due to an ulnar nerve
injury was clinically more appropriate than evaluating impairment due to muscle strength,
particularly as the A.M.A., Guides cautions against the use of strength evaluations.8
Appellant’s arguments do not require reopening of her claim for further merit review. As
appellant did not meet any of the three requirements under 20 C.F.R. § 10.606(b)(2), the Board
finds that the Office properly denied her request for reconsideration without a merit review.9
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

7

A.M.A., Guides 571, 18.3(b). An impairment percentage may be increased by up to three percent for pain by
using Chapter 18, which provides a qualitative method for evaluating impairment due to chronic pain. If an
individual appears to have a pain-related impairment that has increased the burden on his or her condition slightly,
the examiner may increase the percentage up to three percent. However, examiners should not use Chapter 18 to
rate pain-related impairments for any condition that can be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A., Guides. Federal Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003); A.M.A., Guides at 18.3(b); see also Philip Norulak, 55
ECAB 690 (2004).
8

A.M.A., Guides 507-08. Because strength measurements are functional tests influenced by subjective factors
that are difficult to control, and the A.M.A., Guides is for the most part based on anatomic impairment, the A.M.A.,
Guides does not assign a large role to such measurements. Only in rare cases should grip strength be used and only
when it represents an impairing factor that has not been otherwise considered adequately. Mary L. Henninger, 52
ECAB 408 (2001).
9

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits).

4

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 17-0985
Issued: December 12, 2018

Case Submitted on the Record

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

JURISDICTION
On April 4, 2017 appellant filed a timely appeal from an October 28, 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 has met his burden of proof to establish more than three
percent right upper extremity permanent impairment, three percent left upper extremity permanent
impairment, and more than 10 percent left lower extremity permanent impairment, for which he
previously received schedule awards.2
1

5 U.S.C. § 8101 et seq.

2
The record reflects that appellant previously received a 10 percent schedule award for the left lower extremity
under OWCP File No. xxxxxx057.

FACTUAL HISTORY
OWCP accepted that, on January 15, 2013, appellant, then a 24-year-old border patrol
agent, was ejected from an airboat after it collided with the riverbank in an employment-related
accident. He noted on his traumatic injury claim (Form CA-1) that he sustained a fractured left
femur and possible fractured nose. OWCP accepted his traumatic injury claim for femur fracture,
left; leg sprain, left; deviated septum; and face and scalp contusions, except for the eyes. It also
accepted joint replacement, knee; sprain of the elbow and forearm, bilateral; and sprain of back,
lumbar region.
On June 24, 2014 appellant filed a claim for a schedule award (Form CA-7). In support of
his claim, he submitted a May 30, 2014 report from Dr. Humberto Varela, a Board-certified family
practitioner. Dr. Varela noted that he examined appellant for purposes of determining maximum
medical improvement (MMI) and an impairment rating. He indicated that appellant returned to
light-duty employment on May 7, 2013 and progressed to regular duty on January 14, 2014.
Dr. Varela utilized the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)3 and provided conclusory findings noting
that appellant had a diagnosis-based impairment (DBI) rating of 22 percent of the lower
extremities.
On July 8, 2014 OWCP forwarded Dr. Varela’s report and a statement of accepted facts
(SOAF) to a district medical adviser (DMA). It requested that he assess the date of MMI and
functional loss of use and percentage of impairment in accordance with the A.M.A., Guides.
In a July 8, 2014 response, Dr. Michael M. Katz, a DMA Board-certified in orthopedic
surgery, explained that Dr. Varela’s impairment determination could not be accepted as probative
for the purpose of recommending a schedule award under FECA. He noted that Dr. Varela did not
provide diagnostic indicators in his report or on the worksheet. Dr. Katz requested a second
opinion examination be scheduled with a medical specialist who is familiar with the sixth edition
and OWCP procedures for schedule awards.
By letter dated March 20, 2015, OWCP notified appellant that a second opinion
examination was necessary. In an April 14, 2015 letter, it notified appellant of the time and place
of the examination with Dr. Salvador Baylan, Board-certified in physical medicine and
rehabilitation.
In an April 24, 2015 report, Dr. Baylan noted appellant’s history of injury, the accepted
conditions, and treatment history. He provided physical examination findings and utilized the
sixth edition of the A.M.A., Guides. Dr. Baylan found that January 7, 2014 was the appropriate
date of MMI. He explained that the accepted conditions did not result in permanent impairment
except for the bilateral elbows due to loss of flexion. Dr. Baylan determined that the range of
motion (ROM) methodology was appropriate for rating permanent impairment. He referenced
Table 15-33, Table 15-35, Table 15-36, and Table 15-7.4 Dr. Baylan noted elbow flexion of 130
3

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

4

Id. at 474, 477, 406.

2

degrees bilaterally which equaled three percent impairment pursuant to Table 15-33. He provided
the functional history adjustments and grade modifiers and determined that the total impairment
was three percent on the right and on the left, for a six percent combined permanent impairment
of the upper extremities.
The report of Dr. Baylan was provided to the DMA. On June 1, 2015 Dr. Katz noted his
agreement with Dr. Baylan’s upper extremity impairment ratings, but requested clarification
regarding a rating for the left lower extremity.
By letter dated October 16, 2015, OWCP referred appellant for a second opinion
examination with Dr. Baylan regarding the lower extremities.
In a November 6, 2015 addendum, Dr. Baylan repeated his findings with regard to the
upper extremities. Regarding the lower extremities, he examined appellant and noted complaints
of residual pain on the left lower extremity from the hip down to the knee and pain on the left
lumbar areas, but no radiating pain. Dr. Baylan noted essentially normal physical findings. He
explained that the femur fracture had healed without angular deformity and noted that there was
an intramedullary nail with screws at the metaphysis, but the fracture did not cause numbness or
muscle weakness. Furthermore, Dr. Baylan explained that the range of motion of the knee and
hips were within the normal range, and the gait remained normal. He concluded that there was no
permanent impairment from the fracture. On January 21, 2016 OWCP requested that the DMA
review the left lower extremity impairment rating report of Dr. Baylan. After no response was
received, on April 14, 2016 OWCP again requested review by the DMA.
In a May 25, 2016 report, Dr. Arthur S. Harris, a DMA Board-certified in orthopedic
surgery, reviewed the claim including the reports of Dr. Baylan. He also advised that he had
reviewed the memorandum of April 14, 2016 from OWCP, which advised that appellant had
previously received an award of 10 percent permanent impairment of the left lower extremity under
File No. xxxxxx210. Dr. Harris advised that, regarding the lower extremity, the left hip and knee
demonstrated satisfactory range of motion without instability. He noted that examination of the
elbows demonstrated range of motion, right/left: flexion 130/130 degrees; extension 0/0 degrees;
pronation 85/85 degrees; and supination 85/85 degrees, without instability. Dr. Harris opined that
there was no evidence of a neurologic deficit in either the upper or lower extremities. He
concluded that appellant had three percent right upper extremity, three percent left upper extremity
impairment, and zero percent left lower extremity impairment. Dr. Harris explained that there was
no increase in appellant’s left lower extremity impairment under the A.M.A., Guides. He indicated
that the date of MMI was November 6, 2015, when appellant had been examined by Dr. Baylan.
By decision dated October 28, 2016, OWCP granted appellant a schedule award for three
percent right upper extremity permanent impairment, three percent left upper extremity permanent
impairment, and no additional left lower extremity permanent impairment. The award covered a
period of 18.72 weeks, from November 6, 2015 to March 16, 2016. OWCP based the award on
Dr. Baylan’s November 6, 2015 findings, along with the DMA’s May 25, 2016 impairment rating.

3

LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.6 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.9
ANALYSIS
The Board finds that this case is not in posture for decision regarding the extent of
appellant’s bilateral upper extremity impairment. The Board further finds that appellant has not
met his burden of proof to establish that he is entitled to more than 10 percent permanent
impairment of his left lower extremity, for which he previously received a schedule award.
With regard to the left lower extremity, the record reflects that appellant previously
received a schedule award of 10 percent. In his November 20, 2015 report, Dr. Baylan examined
appellant and noted essentially normal physical findings and explained that the femur fracture had
healed without an angular deformity. He noted that there was an intramedullary nail with screws
at the metaphysis, but the fracture did not cause numbness or muscle weakness. Dr. Baylan also
explained that the range of motion of the knee and hips were within the normal range, and that his
5

See 20 C.F.R. §§ 1.1-1.4.

6

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

7

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

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

4

gait remained normal. He concluded that there was no permanent impairment from the fracture.
In a May 25, 2016 report, Dr. Harris concurred with Dr. Baylan regarding the nature and extent of
appellant’s left lower extremity permanent impairment.
The Board finds that Dr. Baylan and Dr. Harris, serving as a DMA, correctly utilized the
sixth edition of the A.M.A., Guides and determined that no additional impairment was warranted
to the lower extremity. Appellant has not submitted other medical evidence conforming with the
sixth edition of the A.M.A., Guides establishing that he has a greater lower extremity impairment
entitling him to a greater schedule award. The Board therefore finds that appellant has not met his
burden of proof to establish that he is entitled to more than 10 percent permanent impairment of
his left lower extremity, for which he previously received a schedule award.
On appeal appellant argues that Dr. Baylan’s assessment was “completely arbitrary and
improper.” He asserts that Dr. Baylan did not perform an accurate examination, as he had to visit
him on several occasions. Appellant also argues that the decision took over two years and did not
reflect the severity of his injury, which included major surgery to his femur and a titanium rod
with four screws to hold it together. The Board notes that appellant has previously received an
impairment rating of 10 percent to the left lower extremity and the present medical evidence does
not support a higher rating. However, 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
impairment.
With respect to the nature and extent of permanent impairment of appellant’s bilateral
upper extremities, the Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of the DBI or the ROM methodology
when assessing the extent of permanent impairment for schedule award purposes.10 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under the
law to all claimants.11 In T.H., the Board concluded that OWCP physicians were at odds over the
proper methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
medical advisers use both DBI and ROM methodologies interchangeably without a consistent
basis. Furthermore, the Board observed that physicians interchangeably cite to language in the
first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the
Board found that OWCP could no longer ensure consistent results and equal justice under the law
for all claimants.12

10

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

11

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

12

Supra note 9.

5

In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside in part the October 28, 2016 decision as it
relates to the upper extremities. Utilizing a consistent method for calculating permanent
impairment for upper extremities applied uniformly, and after such other development as may be
deemed necessary, OWCP shall issue a de novo decision with regard to appellant’s claim for an
upper extremity schedule award.13
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 10
percent left lower extremity permanent impairment, for which he previously received a schedule
award. The Board further finds that the case is not in posture for decision with respect to
appellant’s upper extremity permanent impairment, and the case is therefore remanded for further
development consistent with this decision.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part with respect to left lower extremity
impairment, and set aside in part. The case is remanded for further action consistent with this
decision with respect to appellant’s upper extremity permanent impairment.
Issued: December 12, 2018
Washington, DC

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

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

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

13

See FECA Bulletin No. 17-06 (May 8, 2017).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIAL COMMAND, Chambersburg, PA,
Employer
__________________________________________

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

Docket No. 08-2004
Issued: April 1, 2009

Case Submitted on the Record

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

JURISDICTION
On July 14, 2008 appellant, through his attorney, filed a timely appeal from an April 14,
2008 merit decision of the Office of Workers’ Compensation Programs which affirmed the
denial of his traumatic injury claim. 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 established that he sustained a back injury in the
performance of duty on July 17, 2006, as alleged.
FACTUAL HISTORY
On July 26, 2006 appellant, then a 49-year-old materials handler, filed a traumatic injury
claim alleging that on July 17, 2006 he injured his lower back while lifting a heavy box of
battery terminals.

In support of his claim, appellant submitted disability notes, a July 25, 2005 work release
and an August 3, 2006 attending physician’s report (Form CA-20) from Dr. Victor L. Pierson, a
chiropractor, who diagnosed lumbar disc syndrome and indicated that appellant could return to
light-duty work on July 26, 2006.
On August 16, 2006 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from his treating physician describing his
symptoms, the medical reasons for his condition and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office requested that appellant
submit the additional evidence within 30 days.
In a second letter also dated August 16, 2006, the Office informed appellant that
chiropractors are deemed physicians under the Federal Employees’ Compensation Act only
when the services are for treatment consisting of manual manipulation of the spine to correct
subluxation as demonstrated by x-ray to exist. It advised appellant that he should either submit a
report from his chiropractor, which diagnosed subluxation or submit a report from a medical
doctor or osteopath.
Appellant subsequently submitted treatment notes dated August 10 and 31, 2006 from
Dr. Pierson who indicated that no x-ray interpretations were taken as they were not needed for
the diagnosis or required under Medicare law. Dr. Pierson noted the history of the injury, dates
of treatment and physical findings. He diagnosed a lumbosacral strain due to the lifting of the
heavy box on July 17, 2006 which should resolve within 6 to 10 weeks.
By decision dated September 14, 2006, the Office denied appellant’s claim for a
traumatic injury on July 17, 2006. It found that an incident occurred on July 17, 2006, but there
was insufficient medical evidence to establish a diagnosed condition causally related to the
employment incident.
Subsequent to the decision appellant resubmitted treatment notes from a report by
Dr. Pierson.
On September 25, 2006 appellant requested a review of the written record by an Office
hearing representative. He submitted treatment notes and an August 31, 2006 report by
Dr. Pierson and a September 25, 2006 statement.
By decision dated January 30, 2007, an Office hearing representative affirmed the denial
of appellant’s traumatic injury claim.
On July 19, 2007 the Office received a July 13, 2007 report by Dr. Shabbar Hussain, a
treating Board-certified orthopedic surgeon, regarding appellant’s right foot, who noted that
appellant injured his right foot and sustained a fifth metatarsal fracture.
In a letter dated November 26, 2007, appellant requested reconsideration of the denial of
his claim. He resubmitted his September 25, 2006 statement and the August 31, 2006 report of
Dr. Pierson.

2

By decision dated April 14, 2008, the Office reviewed the merits of the case and denied
modification. It found the medical evidence did not provide a rationalized medical opinion on
the issue presented.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his 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 or specific condition for which compensation is claimed is causally related
to the employment injury.1
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury. An employee may establish
that the employment incident occurred as alleged but fail to show that his disability or condition
relates to the employment incident.2
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor.3 The opinion of the physician must be based on
a complete factual and medical background, must be 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.4 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.5
Under section 8101(2) of the Act, chiropractors are only considered physicians and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.6 The Office’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
1

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

2

T.H., 59 ECAB ___ (Docket No. 07-2300 issued March 7, 2008); Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Sedi L. Graham, 57 ECAB 494 (2006).

4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); D.D., 57 ECAB 734 (2006).

5

Michael S. Mina, 57 ECAB 379 (2006); Jennifer Atkerson, 55 ECAB 317 (2004).

6

5 U.S.C. § 8101(2). See Paul Foster, 56 ECAB 208 (2004); Jack B. Wood, 40 ECAB 95, 109 (1988).

3

spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.7
ANALYSIS
Appellant filed a claim for a back injury in the performance of duty on July 17, 2006.
The Office accepted that the July 17, 2006 employment incident occurred as alleged. The issue
is whether the medical evidence is sufficient to establish a diagnosed condition causally related
to the July 17, 2006 employment incident. The initial treatment was provided by a chiropractor,
Dr. Pierson, whose reports do not constitute medical evidence as he did not diagnose a
subluxation as demonstrated by x-ray.8 Dr. Pierson noted that he did not take any x-rays and did
not diagnose a subluxation. Accordingly, the Board finds that he is not a physician as defined
under the Act as he failed to diagnose a subluxation by x-ray interpretation as required by the
Act.
Appellant also submitted a July 13, 2007 report by Dr. Hussain, a Board-certified
orthopedic surgeon. However, this evidence is not relevant to the claim. The Board notes that
Dr. Hussain’s July 13, 2007 report provides no history of the July 17, 2006 employment incident
or addresses a back injury. The only injury Dr. Hussain referenced was a fifth metatarsal
fracture of the right foot. His medical report contains no opinion addressing the causal
relationship between appellant’s employment incident and the alleged injury. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.9
An award of compensation may not be based on surmise, conjecture or speculation.10
Appellant must submit a physician’s report in which the physician reviews those factors of
employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.11 He failed to submit such evidence and therefore failed to
discharge his burden of proof

7

20 C.F.R. § 10.5(bb); see also Mary A. Ceglia, 55 ECAB 626 (2004); Bruce Chameroy, 42 ECAB 121 (1990).

8

Sean O’Connell, 56 ECAB 195 (2004) (a physician includes chiropractors only to the extent of treatment to
correct a subluxation as demonstrated by x-ray to exist).
9

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (medical evidence which offers no
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

See S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); Patricia J. Glenn, 53 ECAB 159 (2001).
Dennis M. Mascarenas, 49 ECAB 215 (1997).
11

Robert Broome, 55 ECAB 339 (2004).

4

CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2008 is affirmed.
Issued: April 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rancho Cucamonga, CA, Employer
__________________________________________

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

Docket No. 07-529
Issued: May 7, 2007

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 December 14, 2006 appellant filed a timely appeal from a June 21, 2006 merit
decision of the Office of Workers’ Compensation Programs which denied her claim and a
September 25, 2006 decision which denied her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an employment-related injury; and (2) whether the Office properly refused to reopen
appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 19, 2006 appellant, then a 57-year-old postal clerk, filed an occupational
disease claim, Form CA-2, alleging that factors of her federal employment caused carpal tunnel
syndrome. She was first aware of the condition on February 1, 2004 and its relationship to her
employment on May 8, 2005. Appellant stopped work on March 31, 2006.

By letter dated April 6, 2006, the Office informed appellant that the evidence submitted
was insufficient to establish her claim. Appellant was asked to provide a statement describing
her job duties and a comprehensive medical report from her physician which described her
symptoms, results of examinations and tests, including nerve conduction studies and
electromyography, diagnosis, treatment provided and an opinion with medical reasons on the
cause of her condition including whether work conditions contributed. She was given 30 days to
respond. By telephone conference on April 11, 2006, appellant described her job duties. In an
April 24, 2006 statement, she described her job history with the employing establishment and her
upper extremity symptoms.
In an April 14, 2006 report, Dr. Eugene Boling, Board-certified in internal medicine and
rheumatology, advised that appellant had been under his care since June 17, 2005. Due to
symptoms of ongoing right hand pain and numbness, she had a neurology evaluation with nerve
conduction testing on September 21, 2005. Dr. Boling stated that the study confirmed
moderately severe right median nerve compression consistent with her symptoms of carpal
tunnel syndrome. A surgical release was recommended.
By decision dated June 21, 2006, the Office found that the evidence supported that
appellant’s duties as a postal clerk required repetitive motion. However, it found that she
submitted insufficient medical evidence to establish her claim. The only medical evidence of
record was Dr. Boling’s report, but he did not address the cause of her condition.
On September 10, 2006 appellant requested reconsideration and submitted a
September 21, 2005 nerve conduction study in which Dr. Jeffrey Dean Ries, an osteopathic
physician who practices neurology, advised that the study was abnormal with moderately severe
median neuropathy at the wrist as seen with carpal tunnel syndrome. On September 25, 2006 the
Office denied appellant’s reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.2
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”3 To
1

5 U.S.C. §§ 8101-8193.

2

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

3

20 C.F.R. § 10.5(ee).

2

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 diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between 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.6 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.7
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained carpal tunnel syndrome causally related to her federal employment. Appellant
submitted a medical report dated April 14, 2006 from Dr. Boling who diagnosed moderately
severe right median nerve compression. However, Dr. Boling did not address the cause of the
condition. The Board had held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.8 While the medical opinion of a physician supporting causal relationship does not
have to reduce the cause or etiology of a disease or condition to an absolute certainty, neither can
such opinion be speculative or equivocal. The opinion of a physician supporting causal
relationship must be one of reasonable medical certainty that the condition for which
compensation is claimed is causally related to federal employment and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a
complete and accurate medical and factual background of the claimant.9 Dr. Boling provided no
4

Solomon Polen, 51 ECAB 341 (2000).

5

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

6

Id.

7

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

8

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

9

Patricia J. Glenn, 53 ECAB 159 (2001).

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opinion regarding causal relationship. His report is therefore insufficient to establish that
appellant has employment-related carpal tunnel syndrome.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.10 Section 10.606(b)(2) of Office regulations provides that a claimant
may obtain review of the merits of the claim by either: (1) showing that the Office erroneously
applied or interpreted a specific point of law; (2) advancing a relevant legal argument not
previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office.11 Section 10.608(b) provides that when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.12 Evidence or argument that repeats or duplicates evidence
previously of record has no evidentiary value and does not constitute a basis for reopening a
case.13 Likewise, evidence that does not address the particular issue involved does not constitute
a basis for reopening a case.14
ANALYSIS -- ISSUE 2
On her form requesting reconsideration, appellant merely checked that she was
requesting reconsideration. She therefore did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument
not previously considered by the Office. Consequently, appellant is not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).15
With respect to the third requirement under section 10.606(b)(2), appellant submitted no
relevant medical evidence. The underlying issue in this case is whether she established that her
diagnosed median nerve compression was caused by her federal employment. This requires the
submission of medical evidence addressing the issue of how the claimed condition is causally
related to the employment factors identified by the claimant.16 With her reconsideration request,
appellant submitted a nerve conduction study dated September 21, 2005. Dr. Ries did not
provide any opinion on the cause of the diagnosed median nerve compression. Evidence that
10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(2).

12

20 C.F.R. § 10.608(b).

13

Helen E. Paglinawan, 51 ECAB 591 (2000).

14

Kevin M. Fatzer, 51 ECAB 407 (2000).

15

20 C.F.R. § 10.606(b)(2).

16

Solomon Polen, supra note 4.

4

does not address the particular issue involved does not constitute a basis for reopening a case.17
Appellant therefore did not submit relevant and pertinent new evidence not previously
considered by the Office. The Office properly denied her reconsideration request.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty causally related to factors of employment. The
Board further finds that the Office properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).18
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 25 and June 21, 2006 and November 8, 2005 be
affirmed.
Issued: May 7, 2007
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

17

Id.

18

The Board notes that appellant submitted new evidence with her appeal to the Board. The Board cannot
consider this evidence, however, as its review of the case is limited to that evidence which was before the Office at
the time it issued its final decision. 20 C.F.R. § 501.2(c). Appellant retains the right to request reconsideration with
the Office.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Fort Meade, SD, Employer
__________________________________________

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

Docket No. 12-840
Issued: November 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 2, 2012 appellant filed a timely appeal from a February 10, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on March 4, 2011 in the performance
of duty.
FACTUAL HISTORY
On March 25, 2011 appellant, then a 32-year-old practical nurse, filed a claim alleging
that on March 4, 2011 she sustained injury to her neck and shoulder when she had a “black out
1

5 U.S.C. § 8101 et seq.

spell” and “fell to the floor.” She did not stop work. OWCP previously accepted that appellant
sustained neck sprain, a coccyx contusion and concussion on August 9, 2005 in File No.
xxxxxx090 and a sprain on the right side of her neck on March 19, 2009 in File No. xxxxxx176.
In an emergency room report dated March 4, 2011, a physician diagnosed a single
episode of syncope.
In a witness statement dated March 25, 2011, Deborah Winter, a coworker, related that
on March 4, 2011 appellant “stood up, looked dazed [and] fell forward hitting my shoulder
before she hit the floor….”
In a March 28, 2011 witness statement, Pamela Lindell related that on March 4, 2011
appellant told her that she was having dizzy spells. She stated, “My back was turned toward
[appellant] and I did not see her get up from her chair and go down to the floor. When I turned
around, she was lying on the floor with her eyes shut.”
In a report dated March 29, 2011, Dr. Christopher T. Dietrich, a Board-certified
physiatrist, noted that appellant was involved in a motor vehicle accident on March 4, 2011. He
diagnosed cervicalgia, scapular protraction, cervical facet pain and status post motor vehicle
accident with exacerbation.
On June 3, 2011 OWCP informed appellant that it had paid a limited amount of medical
expenses as her claim was not controverted. It advised her that it would formally adjudicate her
claim and requested additional factual and medical information.
In a statement dated June 14, 2011, appellant related that when she was 10 or 11 years
old she had a history of blackout spells due to low blood pressure. She had not experienced
another episode of syncope since that time. Appellant had a severe headache after her March 4,
2011 syncope. She stated, “I feel that when I blacked out at work, I jarred my neck and caused
the headache.” Appellant was in a motor vehicle accident on March 22, 2011. She was struck
from behind by another vehicle but did not lose consciousness. Appellant asserted, “I do feel
that the reinjury during the car accident on March 22, [2011] significantly set me back in
progress with the pain in my neck as well as having daily headaches.”
By decision dated July 19, 2011, OWCP denied appellant’s claim, finding that she did
not sustain an injury in the performance of duty. It determined that the incident was due to a
nonemployment-related pathology and that there was no evidence that she sustained an injury
due to the fall or struck an object on the way down.
On July 27, 2011 appellant requested a review of the written record by an OWCP hearing
representative. She asserted that she experienced neck pain and an intense headache due to her
March 4, 2011 fall and that “each re-injury to my neck only compounds the problem and the
pain.”2

2

By letter dated September 20, 2011, the employing establishment controverted the claim. It noted that appellant
told a physician that she was involved in a motor vehicle accident on March 4, 2011.

2

By decision dated November 10, 2011, OWCP’s hearing representative set aside the
July 19, 2011 decision and remanded the case for additional development. He determined that
OWCP did not adequately develop whether appellant’s syncope was idiopathic or unexplained.
The hearing representative noted that medical evidence relevant to her claim for a March 4, 2011
traumatic injury was submitted under File No. xxxxxx176. He reviewed the evidence from both
file numbers and instructed OWCP to request that Dr. Dietrich explain whether appellant’s fall
was idiopathic or unexplained. The hearing representative also instructed OWCP to obtain an
opinion regarding the causal relationship of any diagnosed condition and her employment.
In a report dated November 21, 2011, Dr. Dietrich discussed appellant’s history of neck
injuries in 2005 and 2009. He noted that on March 4, 2011 she “blacked out at work” and
experienced increased neck pain. Appellant was subsequently in a motor vehicle accident.
Dr. Dietrich diagnosed cervical degenerative disc and joint disease, cervicalgia and headaches.
By letter dated January 9, 2012, OWCP requested that Dr. Dietrich discuss the cause of
appellant’s March 4, 2011 syncope and provide a reasoned opinion regarding whether the
incident caused or aggravated a condition.
In a report dated January 3, 2012, received by OWCP on January 23, 2012, Dr. Dietrich
discussed appellant’s complaints of continued neck pain and headaches. He diagnosed cervical
degenerative disc disease, cervical facet degenerative joint disease, cervical radiculitis and
headaches. Dr. Dietrich referred her for a neurological evaluation.
In a report dated January 13, 2012, submitted in File No. xxxxxx176, Dr. Dietrich
discussed appellant’s history of injuries in 2005 and 2009 and noted that “on March 4, 2011, she
blacked out at work and had a fall with jarring and re-flare or exacerbation of preexisting neck
pain and symptoms.” Her symptoms further increased after a March 10, 2011 motor vehicle
accident. Dr. Dietrich diagnosed cervical facet degenerative joint disease, cervical disc disease,
headaches and cervicalgia. He stated:
“I am not sure that I can completely explain [appellant’s] blackout. It may have
been related to neck pain or headaches…. All I have to go by in describing this
event is [her] subjective description of what happened. It is my understanding
that there [were] no objective findings to support seizures activity or any organic
cause for this.”
Dr. Dietrich stated that appellant’s falls and jarring with patients have accumulatively flared or
exacerbated her neck pain, her headaches and her symptoms.
By decision dated February 10, 2012, OWCP denied appellant’s claim, finding that her
fall was idiopathic and did not arise in the performance of duty. It determined that the medical
evidence was not sufficient to establish that she sustained a medical condition due to the alleged
work factor. OWCP found that Dr. Dietrich’s only response to its request for additional
information was the January 3, 2012 report.

3

LEGAL PRECEDENT
An employee seeking compensation under FECA3 has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,4
including that he is an employee within the meaning of FECA and that he filed his claim within
the applicable time limitation.5 The employee must also establish that he sustained an injury in
the performance of duty as alleged and that his disability for work, if any, was causally related to
the employment injury.6
It is a general rule of workers’ compensation law that an injury occurring on the
industrial premises during working hours is compensable unless it falls within an exception to
the general rule.7 One exception to the general rule applies to falls in the workplace. Where a
personal, nonoccupational pathology causes an employee to collapse and to suffer injury upon
striking the immediate supporting surface and there is no intervention or contribution by any
hazard or special condition of the employment, the injury is not a personal injury while in the
performance of duty as it does not arise out of a risk connected with the employment.8 This is
referred to as an idiopathic fall.9 On the other hand, if the cause of the fall cannot be determined
or the reason it occurred cannot be explained, then it is an unexplained fall that comes within the
general rule that an injury occurring on the industrial premises during working hours is
compensable.10
An injury resulting from an idiopathic fall may still be compensable if some job
circumstance or working condition intervenes in contributing to the incident or injury, such as if
an employee, instead of falling directly to the floor, strikes a part of his body against a wall, a
piece of equipment, furniture, machinery or some similar object. Appellant has the burden of
establishing that he struck an object connected with his employment during the course of the
idiopathic fall.11

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

Martha G. List, 26 ECAB 200 (1974).

8

John R. Black, 49 ECAB 624, 626 (1998).

9

See Karen K. Levene, 54 ECAB 671 (2003).

10

N.P., Docket No. 08-1202 (issued May 8, 2009); John R. Black, supra note 8.

11

Robert J. Choate, 39 ECAB 103 (1987); Sharon I. Erdmann, 38 ECAB 589 (1987).

4

ANALYSIS
Appellant alleged that she injured her neck and shoulder on March 4, 2011 when she
fainted and fell onto the floor. OWCP denied the claim after finding that she fainted due to an
orthostatic syncope, a nonoccupational pathology.
As noted, an injury resulting from an idiopathic fall is not compensable.12 OWCP has the
burden of proof to submit medical evidence showing the existence of a personal,
nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic in nature.
The fact that the case of a particular fall cannot be determined does not establish that it was due
to an idiopathic condition. If the record does not establish a particular fall was due to an
idiopathic condition, it must be considered merely an unexplained fall, which is covered under
FECA.13
The medical evidence in this case does not clearly establish that appellant’s fall was
idiopathic, i.e., due to a personal, nonoccupational pathology. On March 4, 2011 a physician
diagnosed a single episode of syncope. In a report dated November 21, 2011, Dr. Dietrich
related that appellant “blacked out at work” on March 4, 2011. In a January 14, 2012 report, he
stated that he was not sure of the cause of appellant’s blackout. Based on the contemporaneous
medical evidence, the Board finds there is no conclusive evidence regarding the cause of the fall.
Consequently it must be considered an unexplained fall that occurred in the performance of
duty.14
The case, therefore, will be remanded for OWCP to determine if appellant sustained an
injury due to her fall on March 4, 2011. On remand, OWCP should combine the current case
record with File No. xxxxxx176.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

See supra note 5.

13

See M.M., Docket No. 08-1510 (issued November 25, 2008); Jennifer Atkerson, 55 ECAB 317 (2004).

14

See Steven S. Saleh, 55 ECAB 169 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the February 10, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 20, 2012
Washington, DC

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

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

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

6