United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

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

Docket No. 21-0550
Issued: March 7, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 22, 2021 appellant filed a timely appeal from a January 22, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 5, 2020 appellant, then a 54-year-old postal carrier, filed an occupational disease
claim (Form CA-2) alleging that he suffered a torn left meniscus due to factors of his federal
employment, including repetitive and prolonged walking for 8 to 10 hours per day for seven years.
He further noted that he switched his delivery route after he realized that his knee was injured.
1

5 U.S.C. § 8101 et seq.

Appellant underwent meniscus surgery in 2016 and alleged that his knee condition has worsened.
He noted that he first became aware of his condition on January 1, 2010 and first realized that it
was caused or aggravated by his federal employment on April 20, 2020. Appellant did not stop
work.
In an attached statement, appellant explained that about 10 years prior he realized that the
route he was walking was causing pain in his left knee, noting that the route contained 100 houses
with four to five steps. He walked this route for five years before switching to a different route
with fewer steps. Appellant reported that changing his route helped with his knee pain , but that
the pain was still present. In June 2016, he was involved in a motorcycle accident that forced him
to miss six weeks of work due to a broken clavicle and two broken ribs he sustained in the accident.
Four weeks after his accident, appellant underwent surgery to repair a torn meniscus in his left
knee. He did not file a workers’ compensation claim at that time because he was already off from
work and did not want to have to go back in to take more time off from work for his knee.
Appellant subsequently returned to work two weeks later. In the fall of 2019 his knee pain returned
slowly and was now constant.
In an April 7, 2015 diagnostic report Dr. Tariq Suwan, a Board-certified radiologist,
performed an x-ray scan of appellant’s left knee and noted that it was unremarkable.
In an April 16, 2015 diagnostic report, Dr. Mark Fritze, a Board-certified diagnostic
radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s left knee,
observing degenerative changes of the medical meniscus.
Dr. Brennen Lucas, a Board-certified orthopedic surgeon, in an April 29, 2015 medical
report, evaluated appellant for complaints of left knee pain, swelling, and stiffness. Appellant
noted that his pain began approximately five weeks earlier without an injury. Dr. Lucas reviewed
the April 7 and 16, 2015 diagnostic studies of appellant’s left knee which found degenerative
changes of the medial meniscus. He diagnosed left knee pain, left internal derangement of the
knee, and left derangement of the medial meniscus. Dr. Lucas expressed concern that appellant
may have sustained a small medial meniscus tear and administered a corticosteroid injection to
appellant’s left knee to treat his symptoms.
In an April 27, 2020 medical note, Malissa Paxton, a physician assistant, explained that
appellant underwent an MRI scan on April 23, 2020 that revealed a probable tear of his left
meniscus. She opined that his job detail of walking aggravated his pain daily.
In a May 12, 2020 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the type of factual and medical evidence necessary and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
In an April 7, 2015 medical report, Dr. Kurt Hesse, Board-certified in family medicine,
evaluated appellant for pain in his low back and left knee. On examination, he diagnosed low back
pain and left knee pain and prescribed medications to treat appellant’s symptoms.

2

In a July 13, 2015 medical report, appellant informed Dr. Lucas that he was experiencing
pain in his left knee and of his employment duties involved excessive walking to carry mail. On
review of an MRI scan of appellant’s left knee and examination, Dr. Lucas diagnosed left internal
derangement of the knee, left derangement of the medial meniscus and left knee pain. He arranged
for appellant to undergo surgery to treat his condition.
In an April 20, 2020 medical report, Ms. Paxton noted that appellant previously underwent
meniscus surgery in 2016 and that he was now experiencing pain in his left knee. Appellant
reported that he suffered no injury to his knee and opined that his condition was work related.
Ms. Paxton diagnosed chronic left knee pain2 and ordered that he undergo an MRI scan for further
evaluation.
In an April 23, 2020 diagnostic report, Dr. Kamran Ali, a Board-certified radiologist,
performed an MRI scan of appellant’s left knee, observing findings of appellant’s previous medial
meniscus surgery. He recorded increased T2 signal along the inferior articular surface of the
posterior horn of the medial meniscus that was suspicious for a possible retear. Dr. Ali also noted
that prior surgical changes could also appear like this.
In a May 7, 2020 medical report, Gregory Knoblauch, a physician assistant, evaluated
appellant for a possible retear of his left meniscus. Appellant informed Mr. Knoblauch that he
previously underwent an arthroscopy and partial medial meniscectomy five years p rior and that he
recently underwent an MRI scan that revealed a retear of his medial meniscus. Mr. Knoblauch
diagnosed a retear of the left knee medial meniscus and degenerative arthritis of the left knee
medial compartment/patellofemoral joint.
In a May 18, 2020 e-mail response to OWCP’s development questionnaire, T.G.,
appellant’s supervisor, noted that she did not have reason to dispute his claim as she was not his
supervisor at the time of his first surgery. She detailed his current workload in wh ich he worked
eight plus hours a day, casing mail for three to four hours and spending four to five hours walking
and standing to deliver mail. T.G. explained that appellant was previously on an overtime desired
list, which had him working additional hours, but had since removed himself from the list a couple
of months ago. Appellant had returned to working eight hours per day and reported that he did not
want to sit in the office performing limited-duty work, asserting that he would rather perform his
regular carrier assignments.
In a May 19, 2020 response to OWCP’s development questionnaire, appellant advised that
his left knee injuries began in 2010 and had since continued to hinder his ability to perform his
job. His job consisted of walking, going up and down stairs, twisting, turning, lifting, squatting,
and being on his feet for six to seven hours daily. Appellant explained that he had been performing
these duties for 16.5 years and that he did not sustain a specific injury that caused his conditions.
By decision dated June 25, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between a diagnosed medical condition and the accepted factors of his federal employment. It

2

Ms. Paxton’s medical report diagnosed chronic right knee pain; however, this appears to be a typographical error.

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concluded therefore that the requirements had not been met to establish an injury as defined under
FECA.
On July 28, 2020 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
Appellant submitted a copy of Mr. Knoblauch’s May 7, 2020 medical report.
In a June 1, 2020 operative report, Dr. Bradley Bruner, a Board-certified orthopedic
surgeon, performed an arthroscopic left partial medial meniscectomy, an arthroscopic left loose
body removal and an arthroscopic left chondroplasty to treat appellant’s left medial meniscus tear.
Dr. Bruner reported on June 11, 2020 that he evaluated appellant following his June 1,
2020 left knee surgical procedure. He diagnosed a medial meniscus tear of the left knee, loose
body of the left knee, and possible deep vein thrombosis of the left lower extremity.
In a September 16, 2020 statement, appellant detailed his employment duties over the past
17 years in which he walked approximately four to five miles a day, lifted packages, walked up
and down stairs, bended, squatted, and stood for long periods of time. He alleged that these
activities caused him to tear his meniscus twice. Appellant attached an information sheet
explaining that postal workers were susceptible to repetitive stress injuries due to their employment
duties.
In a September 23, 2020 medical report, Dr. Bruner recounted his treatment of appellant
for a retear of appellant’s left medial meniscus. He opined that appellant’s condition was a direct
result of appellant’s work for the employing establishment over the past 17 years where appellant
carried mail for approximately 10 miles per day.
In a September 24, 2020 duty status report (Form CA-17), Dr. Bruner diagnosed a tear of
the left medial meniscus and advised that appellant was able to perform his normal work duties as
of July 13, 2020.
By decision dated October 21, 2020, an OWCP hearing representative vacated the June 25,
2020 decision and remanded the case for further development.
On remand OWCP routed the case file, along with a statement of accepted facts (SOAF),
to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for an evaluation and review of
the medical evidence of record as to whether appellant sustained a left knee condition causally
related to the accepted factors of his federal employment. In his January 7, 2021 narrative medical
report, Dr. Johnson indicated that he reviewed the SOAF as well as the medical evidence of record.
He reviewed appellant’s employment duties, history of left knee pain and left knee surgeries in
2016 and 2020. Dr. Johnson diagnosed a left knee medial meniscus tear in 2015, a left knee medial
meniscus tear in 2020 and left knee grade III chondromalacia. Referring to page 370 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 he opined that, while there was “some evidence” of kneeling and squatting,
3

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

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the A.M.A., Guides did not mention standing or walking as a job task risk for a medial meniscus
tear. Dr. Johnson therefore concluded that appellant’s medial meniscus tears were secondary to
appellant’s preexisting, unrelated, degenerative chondromalacia and his age, but not his
employment duties. Referring to page 364 of the A.M.A., Guides, he explained that there was
“insufficient evidence” support a relationship between appellant’s occupation and his diagnosed
left knee arthritis/chondromalacia. Consequently, Dr. Johnson opined that appellant’s
chondromalacia was caused by a combination of appellant’s age and genetics, not his employment
tasks.
By de novo decision dated January 22, 2021, OWCP again denied appellant’s occupational
disease claim, finding that the medical evidence of record was insufficient to establish that his
diagnosed medical condition was causally related to the accepted factors of his federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

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

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

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

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complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted factors of his federal employment.
Dr. Bruner, in his September 23, 2020 medical report, recounted his treatment for a retear
of appellant’s left medial meniscus and opined that appellant’s condition was a direct result of his
employment duties over the past 17 years where he carried mail for approximately 10 miles per
day. While he provided an affirmative opinion on causal relationship, he did not offer any medical
rationale sufficient to explain why he believes that appellant’s employment duties could have
resulted in or contributed to appellant’s diagnosed condition. Without explaining how walking
approximately 10 miles per day caused or aggravated his diagnosed medical condition,
Dr. Bruner’s September 23, 2020 medical report is of limited probative value.11
Dr. Bruner’s remaining medical evidence consisted of medical reports dated June 1 and 11,
2020 in which he indicated that he performed an arthroscopic left partial medial meniscectomy, an
arthroscopic left loose body removal, and an arthroscopic left chondroplasty to treat appellant’s
left medial meniscus tear and subsequently conducted a follow-up evaluation of his repaired knee.
He also submitted a September 24, 2020 Form CA-17 wherein he diagnosed a tear of the left
medial meniscus and advised that appellant was able to perform his normal work duties as of
July 13, 2020. However, Dr. Bruner did not offer an opinion on causal relationship in any of these
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 12 For
this reason, Dr. Bruner’s remaining medical evidence is insufficient to meet appellant’s burden of
proof.
Dr. Lucas, in medical reports dated April 29 and July 13, 2015, reviewed appellant’s
complaints of pain in his left knee and appellant’s employment duties involving walking to carry
mail. He reviewed diagnostic studies of appellant’s left knee, expressed concern that appellant
may have sustained a small medial meniscus tear, but did not offer an opinion on causal
relationship. As noted above, medical evidence that does not offer an opinion regarding the cause

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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of an employee’s condition is of no probative value on the issue of causal relationship. 13
Consequently, Dr. Lucas medical reports are insufficient to meet appellant’s burden of proof.
On April 7, 2015 Dr. Hesse evaluated appellant for his complaints of pain in his low back
and left knee diagnosed low back pain and left knee pain. The Board has consistently held that a
diagnosis of “pain” does not constitute the basis for payment of compensation, as pain is a
symptom not a specific diagnosis. 14 As Dr. Hesse did not offer a valid diagnosis, his April 7, 2015
medical report is insufficient to establish appellant’s claim.
Appellant submitted multiple diagnostic studies. The Board has held, however, that
diagnostic reports standing alone lack probative value on the issue of causal relationship as they
do not address the relationship between accepted employment factors and a diagnosed condition. 15
For this reason, these diagnostic reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted medical evidence by physician assistants. However, certain
healthcare providers such as physician assistants, physical therapists, nurses, and social workers
are not considered physicians as defined under FECA. 16 Consequently, their medical findings
and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.
The remaining medical evidence consisted of Dr. Johnson’s January 7, 2021 second
opinion narrative medical report wherein he opined that appellant’s conditions were caused by a
combination of appellant’s age and genetics and not his employment tasks. As his report is
well-rationalized and based on examination and an accurate history of the employment injury, the
Board finds that Dr. Johnson’s report constitutes the weight of the medical evidence. 17
As appellant has not submitted rationalized medical evidence establishing that his left
medial meniscus tear is causally related to the accepted factors of his federal employment, the
Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

13

Id.

14

T.S., Docket No. 20-0343 (issued July 15, 2020); D.H., Docket No. 19-0931 (issued October 2, 2019); R.R.,
Docket No. 18-1093 (issued December 18, 2018); A.C., Docket No. 16-1587 (issued December 27, 2016); Robert
Broome, 55 ECAB 339 (2004).
15

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB
271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified
nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
16

17

See B.B., Docket No. 20-1187 (issued November 18, 2021).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 09-229
Issued: September 29, 2009

Case Submitted on the Record

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

JURISDICTION
On October 30, 2008 appellant filed a timely appeal from November 27, 2007 and
July 30, 2008 decisions of the Office of Workers’ Compensation Programs adjudicating his
claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 11 percent impairment to his left upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On August 29, 2000 appellant, then a 45-year-old letter carrier, filed a claim for left
carpal tunnel syndrome and a left elbow condition sustained on August 14, 2000 due to holding
mail for long periods of time and repetitive twisting, turning and pulling motions. On July 3,
2001 his claim was accepted for tendinitis (inflammation of a tendon), tenosynovitis (tendinitis
with tendon sheath inflammation) and synovitis (inflammation of the synovial membrane lining

the joints) of the left wrist and left elbow. On March 3, 2004 appellant filed a claim for a
schedule award.1
In an October 10, 2003 report, Dr. Nicholas Diamond, an osteopathic physician
specializing in pain management, reviewed appellant’s medical history and provided findings on
physical examination. He diagnosed left carpal tunnel syndrome and left elbow lateral
epicondylitis. Dr. Diamond stated that there was olecranon and lateral epicondyle tenderness of
the left elbow. Tinel’s sign was negative. Flexion-extension range of motion was 0 to 145
degrees, pronation was 80 degrees with pain, supination was 80 degrees. Left wrist
hyperextension sign was negative. Left wrist range of motion was 65 degrees of dorsiflexion,
65 degrees of palmar flexion, radial deviation of 20 degrees with pain and ulnar deviation of
35 degrees with pain. Grip strength testing with a Jamar Hand Dynamometer at level three
revealed 36 kilograms (kg) of force in the dominant right hand and 28 kg in the left. Manual
muscle strength testing revealed a grade of 4-4+/5 in the left upper extremity. Sensory
examination revealed decreased sensation to light touch and pin prick over the median nerve
distribution of the left upper extremity. Subjective complaints included left elbow medial aspect
tenderness and left wrist and hand pain and weakness. Dr. Diamond calculated 48 percent
combined impairment to the left upper extremity, including 20 percent for left grip strength
deficit, based on Table 16-32 and 16-34 at page 509 of the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), 31 percent
for sensory deficit of the left median nerve, based on Table 16-10 at page 482 and 3 percent for
pain-related impairment, based on Figure 18-1 at page 574.2
In reports dated March 26 and April 20, 2004, an Office medical adviser calculated
11 percent left upper extremity impairment based on Dr. Diamond’s report and appellant’s
accepted left carpal tunnel syndrome.3
By decision dated July 27, 2004, the Office granted appellant a schedule award based on
11 percent left upper extremity for 34.32 weeks, from October 30, 2003 to June 26, 2004 at the
two-thirds rate for employees without dependents.4

1

Appellant has a claim accepted for left elbow tendinitis, synovitis and tenosynovitis and left carpal tunnel
syndrome sustained on September 28, 1999. The Office combined these two cases.
2

Combining 31 percent, 20 percent and 3 percent according to the Combined Values Chart at page 604 of the
fifth edition of the A.M.A., Guides, equals 47 percent combined impairment, not 48 percent (31 combined with
20 according to the chart is 45 percent combined impairment, 45 combined with 3 is 47).
3

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

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by 11 percent equals 34.32 weeks of
compensation.

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On August 17, 2005 an Office hearing representative remanded the case for further
development of the medical evidence. He stated that Dr. Diamond provided insufficient
explanation as to how he calculated appellant’s left upper extremity impairment. Additionally, it
was not clear whether the Office medical adviser included appellant’s accepted left elbow
conditions in his calculation of 11 percent left upper extremity impairment.
By decision dated December 21, 2005, the Office denied appellant’s claim for more than
11 percent left upper extremity impairment. By decision dated July 11, 2006, an Office hearing
representative remanded the case for further development of the medical evidence. She found
that reports dated October 19, November 28 and December 21, 2005 from an Office medical
adviser who reviewed Dr. Diamond’s report were insufficient to establish appellant’s left upper
extremity impairment. On November 7, 2006 the Office found that his schedule award
compensation should be based on the augmented three-fourths compensation rate for employees
with dependents.
On March 12, 2007 Dr. Henry J. Magliato, a Board-certified orthopedic surgeon and an
Office medical adviser, calculated 28 percent left upper extremity impairment, including
10 percent for sensory deficit of the median nerve, based on Table 16-15 at page 492 and Table
16-10 at page 482 of the fifth edition of the A.M.A., Guides (39 percent maximum for the
median nerve multiplied by 25 percent for Grade 4 deficit equals 9.75 percent, rounded to
10 percent5) and 20 percent for grip strength deficit, based on Tables 16-32 and 16-34 at page
509 (47.3 kg normal grip strength for the nondominant hand of a male between the ages of
40 and 49, minus appellant’s 28 kg strength, divided by 47.3 kg, equals a 40 percent strength loss
index which equals 20 percent upper extremity grip strength deficit). According to the
Combined Values Chart at page 604 of the A.M.A., Guides, 20 percent combined with
10 percent results in 28 percent combined impairment.
By letter dated March 16, 2007, the Office asked Dr. Diamond to explain how he
calculated 31 percent left upper extremity impairment for sensory loss in his October 10, 2003
report. There was no response from Dr. Diamond.
The Office found a conflict in the medical opinion evidence between Dr. Diamond and
Dr. Magliato. On September 7, 2007 it referred appellant, together with a statement of accepted
facts, a list of questions and the medical record, to Dr. Zohar Stark, a Board-certified orthopedic
surgeon, for an examination and an independent evaluation of his left upper extremity
impairment.6
In a September 27, 2007 report, Dr. Stark reviewed the medical history and provided
findings on physical examination. The medical history revealed that an electromyogram (EMG)
5

Dr. Magliato indicated that Dr. Diamond’s calculation of 31 percent sensory deficit was incomplete because he
did not specify a grade from Table 16-10 in his report or reference Table 16-15 at page 492 regarding the median
nerve. He indicated that Table 16-10 includes impairment for sensory deficit and pain and Dr. Diamond did not
explain why an additional three percent impairment for pain based on Chapter 18 was warranted.
6

The record for sub file number xxxxxx215 shows that the Office selected Dr. Stark through the Physicians
Directory Service (PDS), on a strict rotational basis, to act as an impartial medical specialist evaluating appellant’s
schedule award claim under the two combined case files.

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and nerve conduction velocity tests were positive for left carpal tunnel syndrome. Dr. Stark
noted that appellant had left wrist and left elbow pain described as an 8 in severity on a scale of
0 to 10. The pain woke him up at night. Appellant experienced difficulty performing tasks such
as cutting the grass. He had numbness over the volar aspect of the left wrist. Appellant had
local tenderness over the lateral epicondyle of his left elbow and the extensor tendon in the
proximal forearm. There was no swelling or erythema. Flexion in the left elbow was measured
at 150 degrees with 0 degrees of extension. Pronation and supination measured 80 degrees.7 No
instabilities were noted. There was no increased pain in the elbow with resisted extension of the
wrist. Tinel’s test was negative for entrapment of the ulnar or radial nerves of the left elbow.
Examination of the left wrist revealed no swelling. There was local tenderness on palpation over
the volar aspect of the wrist and over the ulnar and radial margins. Range of motion
measurement of the left wrist revealed 60 degrees of dorsiflexion, 70 degrees palmar flexion,
20 degrees radial deviation and 30 degrees ulnar deviation.8 There was no atrophy of the thenar
muscles. Tinel’s and Phalen’s tests were negative for entrapment of the median or ulnar nerve at
the wrist. There was no weakness in grip strength or motor strength of the left wrist or elbow.
Dr. Stark found no clinical evidence of tenosynovitis of the left elbow or wrist and no left elbow
impairment. He calculated five percent left upper extremity impairment based on the second
scenario for carpal tunnel syndrome described at page 495 of the A.M.A., Guides.
On November 17, 2007 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
an Office medical adviser, noted that Dr. Stark found no evidence of atrophy, sensory loss or
reduced muscle power. Tinel’s and Phalen’s tests were negative. There was full range of motion
of both wrists. EMG testing and a nerve conduction study were positive for left carpal tunnel
syndrome. Dr. Berman stated that appellant had five percent left upper extremity impairment
based on the second scenario described at page 495 in the fifth edition of the A.M.A., Guides,
normal sensibility and opposition strength with abnormal sensory and/or motor latencies or
abnormal EMG testing of the thenar muscles. The A.M.A., Guides provides that no more than
five percent impairment is justified for the residual carpal tunnel syndrome described in the
second scenario.
By decision dated November 27, 2007, the Office denied appellant’s claim for more than
11 percent left upper extremity impairment. Appellant requested reconsideration. He stated that
Dr. Stark examined his arm with different instruments and had him move his arm and elbow in
different positions. Appellant stated that Dr. Stark examined him for only 10 minutes. On
July 30, 2008 an Office hearing representative affirmed the November 27, 2007 decision.9

7

Left elbow range of motion measurements were normal based on Figure 16-34 at page 472 of the fifth edition of
the A.M.A., Guides and Figure 16-37 at page 474.
8

Left wrist range of motion measurements were normal based on Figure 16-28 at page 467 and Figure 16-31 at
page 469.
9

Subsequent to the July 30, 2008 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

4

LEGAL PRECEDENT
Section 8107 of the Act10 authorizes the payment of schedule awards for the loss or loss
of use of specified members, organs or functions of the body. Such loss or loss of use is known
as permanent impairment. The Office evaluates the degree of permanent impairment according
to the standards set forth in the specified edition of the A.M.A., Guides.11
Section 8123(a) of the Act provides that “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”12 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.
The Board case precedent provides that, when the Office obtains an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and
the specialist’s opinion requires clarification or elaboration, the Office must secure a
supplemental report from the specialist to correct the deficiency in his original report. Only
when the impartial specialist is unable to clarify or elaborate on his original report or if his
supplemental report is incomplete, vague, speculative or lacking in rationale, should the Office
refer the claimant to a second impartial specialist.13
ANALYSIS
The Board finds that this case is not in posture for a decision. The case must be
remanded for further development of the medical evidence.
Due to the conflict in the medical opinion evidence between Dr. Diamond and
Dr. Magliato as to appellant’s left upper extremity impairment, the Office properly referred him
to Dr. Stark for an impartial medical evaluation.
Dr. Stark reviewed the medical history and provided findings on physical examination.
The medical history revealed that an EMG and nerve conduction velocity tests were positive for
left carpal tunnel syndrome. Dr. Stark noted that appellant had left wrist and left elbow pain
described as 8 on a scale of 0 to 10. The pain woke appellant up at night. He experienced
difficulty with tasks such as cutting the grass. Appellant had local tenderness over the lateral
epicondyle of his left elbow and the extensor tendon in the proximal forearm. There was no
swelling or erythema. No instabilities were noted. Tinels’ test was negative for entrapment of
10
11

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

12

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
13

See Nancy Keenan, 56 ECAB 687 (2005).

5

the ulnar or radial nerves at the left elbow. Examination of the left wrist revealed no swelling.
There was local tenderness on palpation over the volar aspect of the wrist and over the ulnar and
radial margins. There was no atrophy of the thenar muscles. Tinel’s and Phalen’s tests were
negative for entrapment of the median or ulnar nerves at the wrist. There was no weakness in
grip strength or motor strength of the left wrist or elbow. Dr. Stark found no clinical evidence of
tenosynovitis of the left elbow or wrist and no left elbow impairment. He calculated five percent
left upper extremity impairment based on the second scenario for carpal tunnel syndrome
described at page 495 of the A.M.A., Guides. The Board finds that Dr. Stark’s report requires
clarification regarding appellant’s left elbow impairment. Dr. Stark did not explain why he ruled
out impairment for left elbow pain based on appellant’s description that the pain was an 8 in
severity on a scale of 0 to 10. Appellant described the left elbow pain as severe enough to wake
him at night. The pain also interfered with some activities such as cutting grass. Dr. Stark stated
that the Tinel’s test was negative for entrapment of the ulnar or radial nerves in appellant’s left
elbow. However, he did not address the inconsistency between appellant’s description of
significant left elbow pain and the negative Tinel’s test. Dr. Stark stated that there was no
weakness in grip strength or motor strength of the left elbow. However, he did not indicate how
he determined that there was no weakness in grip strength. There were no grip strength
measurements based on Jamar Dynamometer testing or other objective testing results in
Dr. Stark report. Although appellant stated that Dr. Stark examined his arm with different
instruments and had him move his arm and elbow in different positions, the medical report did
not include the specific tests performed, the types of instruments used and the test results. The
Board finds that additional information is required from Dr. Stark explaining his determination
that appellant had no left elbow impairment. When the Office obtains an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and
the specialist’s opinion requires clarification or elaboration, it must secure a supplemental report
from the specialist to correct the deficiency in his original report. On remand, it should obtain a
supplemental report from Dr. Stark in which he explains how he determined that appellant had
no left elbow impairment.
On appeal, appellant argues that the Office medical adviser’s reports dated October 19,
November 28 and December 21, 2005 were conflicting and confusing. In its July 11, 2006
decision, the Office found that these reports were insufficient to establish appellant’s left upper
extremity impairment and gave them no weight. Therefore, this argument is without merit.
Appellant argues that Dr. Stark’s medical opinion should not be given special weight because he
acted as a second opinion physician. The record reflects that the Office inadvertently sent a
July 30, 2007 letter to him advising that he was scheduled to be evaluated by an unnamed
physician. The letter did not indicate that the examination was an independent examination for
the purpose of resolving a conflict in the medical opinion evidence. The Office advised that
appellant should refer to an attached letter for the time, date and location of the appointment.
There was no letter with the appointment information attached to the July 30, 2007 letter. Also
of record is a July 30, 2007 form entitled “Second Opinion Referral to Medical Consultants
Network.” However, the record reflects that the Office sent appellant a September 13, 2007
letter advising him of a scheduled appointment with Dr. Stark. It advised him that Dr. Stark was
selected to resolve the conflict in the medical opinion evidence between Dr. Diamond and the
Office medical adviser regarding his left upper extremity impairment. The Office sent Dr. Stark
a September 13, 2007 letter advising him that he was selected to perform an independent

6

examination to resolve the conflict in the medical opinion evidence.14 For these reasons, the
argument that Dr. Stark was not selected or did not act, in the capacity of an impartial medical
specialist is without merit.
Appellant argues that the Office medical adviser did not review Dr. Stark’s report.
However, in his November 17, 2007 report, the Office medical adviser did reference Dr. Stark’s
report. Therefore, this argument has no merit. Appellant argues that Dr. Stark’s opinion cannot
carry the weight of the medical evidence because it is not well reasoned and not based on an
evaluation consistent with the impairment evaluation procedures in the A.M.A., Guides. The
Board has instructed the Office to obtain a supplemental report from Dr. Stark regarding
appellant’s left elbow impairment. Regarding his left wrist condition, appellant asserts that
Dr. Stark failed to provide medical rationale supporting his calculation of five percent
impairment for carpal tunnel syndrome. Dr. Stark provided findings on physical examination
regarding the left wrist, including negative Tinel’s and Phalen’s tests, no left wrist atrophy and
no loss of range of motion. He quoted the description of the second carpal tunnel scenario at
page 495 of the A.M.A., Guides, which provides for no more than five percent impairment of the
upper extremity and he explained that appellant’s left wrist condition fit that description.
Therefore, this argument is without merit. Appellant asserts that Dr. Stark failed to provide grip
or pinch strength measurements regarding his left wrist. However, the A.M.A., Guides provides
that, in compression neuropathies such as carpal tunnel syndrome, additional impairment values
are not given for decreased grip strength.15 The Board has found that the fifth edition of the
A.M.A., Guides provides that impairment for carpal tunnel syndrome be rated on motor and
sensory deficits only.16 Therefore, this argument regarding left wrist grip strength is without
merit.
CONCLUSION
The Board finds that this is not in posture for a decision. The case is remanded for the
Office to obtain a supplemental report from Dr. Stark explaining how he determined that
appellant had no left elbow impairment. After such further development as the Office deems
necessary, it should issue an appropriate decision.

14

Appellant asserts on appeal that a referee medical examination referral form did not indicate that Dr. Stark was
selected from the PDS database on a strict rotational basis. However, as noted, the file number xxxxxx215 in this
combined case shows that Dr. Stark was selected from the PDS on a strict rotational basis.
15

A.M.A., Guides 494.

16

Kimberly M. Held, 56 ECAB 670 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 30, 2008 and November 27, 2007 are set aside and the case
is remanded for further action consistent with this decision.
Issued: September 29, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Cecil W. Watson, for the appellant1
Office of the Solicitor, for the Director

Docket No. 15-0986
Issued: September 23, 2016

Case Submitted on the Record

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

JURISDICTION
On March 30, 2015 appellant, through his representative, filed a timely appeal from a
November 12, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition in the performance of his federal employment.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 4 and 12, 2013 appellant, then a 52-year-old part-time flexible (PTF) letter
carrier, filed occupational disease claims alleging stress and anxiety as a result of working in a
hostile work environment due to managerial actions. He stated that he was subjected to
harassment, sexual and racial discrimination, retaliatory actions, and other hostile actions by
management.
In his May 1, 2013 supplemental statement, appellant explained that for the past two
years former 204-B Supervisor M.C. and Postmaster K.P. had aggressively attempted to
terminate appellant’s employment through baseless disciplinary actions, while subjecting him to
a hostile work environment. He alleged that he had filed numerous grievances, equal
employment opportunity (EEO) complaints, and National Labor Relations Board (NLRB) claims
for management’s alleged disparate treatment and retaliation while creating a hostile work
environment.
Appellant outlined his disciplinary history. On August 9, 2012 he was issued a notice of
seven-day suspension. Appellant denied all allegations associated with the charge as false and
noted the NLRB was addressing that charge. On October 23, 2012 he was issued a 14-day
suspension for “Failure to Maintain a Regular Schedule.” On December 22, 2012 appellant was
issued a notice of removal. On February 12, 2013, however, a Step B decision, issued by the
Dispute resolution team, reduced the 14-day suspension to a job discussion. On February 16,
2013 the employing establishment issued a notice of suspension of 14 days or less for the same
conduct for which the previous notice of removal had been issued, referring to an alleged
typographical error in the previously-issued notice of removal.
Appellant alleged that management engaged in double jeopardy by issuing him
disciplinary offence again for the same alleged offense which had been rescinded in its totality.
Appellant alleged that these aggressive actions and the work-related stress caused by
M.C. and K.P. resulted in anxiety, sleepless nights, headaches, and abdominal pain. He also
alleged that M.C. and K.P. went out of their way to make it a difficult place to work after
appellant wrote to upper management and his senator and filed grievances, NLRB charges, and
EEO complaints. Appellant noted that his prior EEO complaint case against M.C. and K.P. for
unlawful discrimination and retaliation charges was still pending.
On April 2, 2013 M.C. issued a notice of removal for failure to perform his duties as
assigned, including when appellant failed to obtain a signature from the recipient of a piece of
certified mail.
On April 5, 2013 appellant was seen by Dr. Bahir Mansur, a Board-certified family
practitioner, and Dr. Wendy A. Oman, a clinical psychologist, for work-related stress. He stated
that he had never previously taken any prescribed medication for stress, suffered from any
anxiety disorders, or felt the need to seek medical treatment or counseling services prior to
April 2013.
Along with his claim, appellant submitted a February 20, 2013 medical report from
Dr. Mansur diagnosing anxiety and stress disorder, an April 29, 2013 report from Dr. Dennis

2

Deer, a rehabilitation psychologist, advising that appellant could return to work and February 15,
2013 letters to Senator Richard J. Durbin and to Postmaster General Donahoe, outlining the
hostile work environment at the employing establishment by M.C. and K.P., and the responses
from the employing establishment.
Also submitted were copies of appellant’s various disciplinary actions. These included:
an August 9, 2012 7-day suspension for failure to perform duties as assigned (unauthorized
disposal of mail), failure to follow instructions, and conduct unbecoming an employing
establishment employee, an October 23, 2012 14-day suspension for failing to maintain a regular
work schedule, citing three unscheduled absences within a three-month period, a December 22,
2012 notice of removal for failure to perform duties as assigned (unauthorized disposal of mail),
a February 8, 2013 letter rescinding the December 22, 2012 notice of removal, a February 12,
2013 Step B decision reducing the 14-day suspension to a job discussion, a February 16, 2013
notice of suspension for 14 days or less, replacing the previous December 22, 2012 notice of
removal (which was stated to have been rescinded on February 8, 2013 due to a typographical
error), and the April 2, 2013 notice of removal for failure to perform duties as assigned.
The February 12, 2013 Step B decision, which reduced the 14-day suspension to a job
discussion dated October 23, 2012, stated “management failed in their obligations by not
discussing appellant’s attendance issues before resorting to discipline and providing opportunity
to correct the problem.” It further stated that “there was no doubt that [appellant’s] attendance
record ... was unacceptable. Almost six days in a three[-]month period is excessive.”
In an October 2, 2013 letter, OWCP advised appellant of the deficiencies in his emotional
condition claim and requested additional medical and factual evidence, including responses to its
questionnaire. Appellant was provided 30 days to submit the requested information. No further
evidence was received.
By decision dated March 26, 2014, OWCP denied appellant’s claim for failing to
establish any compensable factors of employment.
On April 30, 2014 OWCP received appellant’s request for an oral hearing, which was
held by video conference on July 31, 2014.
In an April 25, 2014 statement, appellant reiterated that he was issued the April 2, 2013
notice of removal as a result of continued harassment and hostile work environment created by
M.C. and K.P. He alleged that these managers deliberately and willfully issued disciplinary
actions and abused their positions of authority by charging him with alleged violations that were
inconsistent with the employing establishment or union policies and/or regulations. Appellant
stated that both M.C. and K.P. conspired in this nefarious scheme to discriminate, retaliate
against appellant, and cause him mental anguish because he had filed grievances, EEO
complaints, and written letters to upper management against them.
Appellant alleged that there had been no investigation prior to his being charged with
some of the alleged offenses in the August 9, 2012 notice of suspension, and that M.C. had
created a bogus letter of warning on August 7, 2012 for the same offenses for which he had been
charged on August 9, 2012. He noted that the October 23, 2012 14-day suspension was reduced
to a job discussion in the February 12, 2013 Step B decision issued by the Dispute resolution

3

team. Appellant stated that the representative representing him in his EEO complaint case
indicated that there was no rule that carriers were required to be disciplined for three
unscheduled occurrences within a three-month period. He disputed the grounds of the
December 22, 2012 notice of removal, noting that it was rescinded on February 8, 2013.
Appellant alleged that management could not engage in double jeopardy by issuing him the
February 16, 2013 notice of suspension of 14 days or less as it was for the same disciplinary
offense for which the rescinded December 22, 2012 notice of removal had been issued. He
stated that he also denied the basis of the allegations surrounding the April 2, 2013 notice of
removal.
On July 19, 2013 the Dispute resolution team issued a Step B decision combining the
April 2, 2013 notice of removal and the February 16, 2013 14-day suspension into one 14-day
suspension. The Dispute resolution team noted that the employing establishment had just cause
to issue discipline. Appellant was advised that he must correct the stated deficiencies to avoid
further discipline. The letter would remain in his personnel record in accordance with the
national union agreement.
Appellant alleged that his record was now tarnished because of the misconduct of M.C.
and K.P. He desired to transfer to Chicago as a clerk, but that the transfer did not work out
because of the 14-day suspension on his record. Appellant alleged that M.C. and K.P. had a
personal vendetta against him and both conspired to aggressively cause him harm and
unwarranted stress by issuing him baseless punitive disciplinary action and subjecting him to a
hostile work environment until they were successful at terminating his employment.
In further support of his allegations, appellant submitted copies of material previously of
record, additional medical reports of his condition, employing establishment’s responses in his
EEO complaint case number xxxxxx077, a copy of the USPC and NALC Joint Contract
Administration Manual, partial transcripts of multiple depositions in his EEO complaint case
number xxxxxx077, and the Step B decision, which reduced the April 2, 2013 notice of removal
to a job discussion.
On May 9, 2014 appellant requested multiple subpoenas be sent for the hearing. In a
July 10, 2014 letter, the subpoena request was denied.
At the July 31, 2014 hearing, appellant’s representative explained that appellant’s
problems began in 2009 when then-supervisor, K.P. claimed that appellant yelled at him on the
workroom floor. The representative related the history of the disciplinary actions issued to
appellant and argued that they were not progressive as required: job discussion, letter of
warning, 7-day and 14-day suspensions, and a final notice of removal. Appellant’s
representative explained that K.P. issued unwarranted notices of suspension and disciplinary
actions that remained in appellant’s file. The representative indicated that the facts contradicted
the charges against appellant for which he received discipline. He noted that all allegations of
misconduct regarding the individuals referenced herein were dismissed and found in favor of the
employing establishment. These decisions were currently on appeal. Appellant testified that he
was subjected to harassing behavior by management.
Additional evidence received following the hearing included: duplicative evidence
previously of record, an August 15, 2014 witness statement from Rosa Willareal, a coworker,
4

Mr. Watson’s August 20, 2014 declaration, duplicative copies of various disciplinary action
notices, and 2011, 2012, and 2013 letters from appellant.
By decision dated November 12, 2014, an OWCP hearing representative affirmed the
prior decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.3 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.4
An employee’s emotional reaction to administrative or personnel matters generally falls
outside the scope of FECA.5 Although related to the employment, administrative, and personnel
matters are functions of the employing establishment rather than the regular or specially assigned
duties of the employee.6 However, to the extent the evidence demonstrates that the employing
establishment either erred or acted abusively in discharging its administrative or personnel
responsibilities, such action will be considered a compensable employment factor.7
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his or her regular duties, these could constitute employment factors.8
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.9
Appellant has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that an emotional condition was caused or adversely affected by his
employment.10 Neither the fact that a disease or condition manifests itself during a period of

3

Pamela D. Casey, 57 ECAB 260, 263 (2005).

4

Lillian Cutler, 28 ECAB 125, 129 (1976).

5

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

6

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

7

Id.

8

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

9

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

10

See Charles D. Edwards, 55 ECAB 258 (2004).

5

employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.13
ANALYSIS
The Board notes that appellant did not attribute his emotional condition to the
performance of his regular or specially assigned duties as a PTF carrier under Lillian Cutler.14
Although appellant made general allegations and submitted some evidence with regard to some
of the matters for which he received discipline, he did not provide specific evidence with regard
to incidents pertaining to his work duties or allege that his work duties caused or contributed to
his emotional condition. Rather, he contended that his emotional condition was related to the
disciplinary actions taken by the employing establishment and his disagreement with the basis of
such disciplinary actions. Appellant also contends that Postmaster K.P. and his supervisor, M.C.,
engaged in managerial harassment and discrimination in the handling of the disciplinary actions.
After reviewing the evidence of record including arguments by the employing
establishment and appellant, witness statements, and the two Step B decisions issued by the
Dispute resolution team, the Board finds that he has failed to establish a compensable factor with
regard to these administrative and personnel actions.
In Thomas D. McEuen,15 the Board held that an employee’s emotional reaction to
administrative or personnel matters by the employing establishment is generally not covered
under FECA as such matters pertain to procedures and requirements of the employing
establishment and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under FECA would attach if the factual circumstances
surrounding the administrative or personnel action established error or abuse by superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
11

See Ronald K. Jablanski, 56 ECAB 616 (2005); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13

Id.

14

28 ECAB 125 (1976).

15

41 ECAB 387 (1990); reaff d on recon., 42 ECAB 556 (1991).

6

whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.16
The record reflects that appellant received an August 9, 2012 7-day suspension, an
October 23, 2012 14-day suspension, a December 22, 2012 notice of removal which was
rescinded, a February 16, 2013 notice of suspension of 14 days or less, and an April 2, 2013
notice of removal. Appellant alleges error and abuse as the disciplinary actions were
subsequently reduced following the filing of employing establishment grievances.
The Board finds no error or abuse in the handling of discipline by the employing
establishment in this regard. Admittedly, the February 12, 2013 Step B decision, which reduced
the October 23, 2012 14-day suspension to a job discussion, found that management had failed in
their obligations by not discussing appellant’s attendance issues before resorting to discipline and
giving him an opportunity to correct the problem. It further found, however, that there was “no
doubt that [appellant’s] attendance record during the period cited was unacceptable. Almost 6
days in a 3[-]month period is excessive as [appellant] is using sick leave faster than it is being
earned.”
As to the second Step B decision on July 19, 2013, which combined the removal action
and the 14-day suspension into one 14-day suspension, the Dispute resolution team
acknowledged that management had just cause to issue discipline and advised appellant that such
actions would have to be corrected to avoid future discipline.
The Board has previously considered whether a finding by a third party that the
employing establishment acted improperly in a disciplinary matter established a compensable
factor of employment. In T.G.,17 the employee claimed an emotional condition as a result of the
issuance of a notice of removal, which was later reduced by the employing establishment to a
105-day suspension without pay. The employee submitted an arbitrator’s decision reducing the
suspension to seven days, finding that the employing establishment’s response to the employee’s
misconduct was excessive. The Board found that the employee had established a compensable
factor of employment. The record established that, although the employee’s actions were worthy
of discipline, the arbitrator found that the notice of removal was inappropriate as the employee
had no prior disciplinary action in his record and the employing establishment did not establish
two of the charges against the claimant.18
In R.G.,19 the employing establishment indefinitely suspended the employee for filing a
false tax return and fraudulent bankruptcy petition, but the arbitrator found that the suspension
was premature as the tax investigation was still in process. The Board found that the decision by
the arbitrator constituted sufficient evidence to establish the employing establishment erred in
prematurely suspending the employee from work. There was no evidence of record that the
employee had committed fraud at the time he was suspended. Accordingly, the Board found that
16

See Richard J. Dube, 42 ECAB 916, 920 (1991).

17

Docket No. 11-1176 (issued December 22, 2011).

18

Id.

19

Docket No. 10-0947 (issued April 25, 2011).

7

the claimant established a compensable factor of employment pertaining to error in the
administrative action of his suspension.20
The Board finds the facts of the instant case distinguishable from these cases. Prior to
both grievance decisions in the current case, appellant had a prior disciplinary action. The
disciplinary action was timely and not issued prematurely. Further, disciplinary action was
found in both instances to be warranted. Although the Dispute resolution team found that the
employing establishment should first have counseled appellant regarding his leave abuse before
resorting to further disciplinary measures, it found that appellant’s actions nonetheless were
clearly worthy of discipline. It did not overturn the discipline, but simply reduced the extent of
discipline. Under the specific facts of this case, the Board finds that appellant has failed to show
error or abuse in the exercise of these personnel actions.
Appellant also alleged that management failed to investigate the charges against him,
made it a personal vendetta towards getting rid of him, and fabricated disciplinary actions. As
noted above, the Dispute resolution team found in its July 19, 2013 Step B decision that
management had just cause to issue discipline with regard to the subject matter of the April 2,
2013 notice of removal and the February 16, 2013 14-day suspension. There is no evidence that
management fabricated any of the disciplinary actions or had failed to investigate the charges.
While appellant submitted various letters to upper management and copies of his EEO complaint
claims in which he provided details about his claims of employing establishment wrongdoing in
administrative and personnel matters, he did not submit any corroborative evidence to support
the assertions contained in these documents. For these reasons, he has not established a
compensable work factor with respect to administrative or personnel matters.
Appellant claimed that he was subjected to harassment and discrimination at work. He
generally alleged that his managers subjected him to retaliatory actions, sexual harassment, and
hostile work environments. However, the record is devoid of any evidence to establish a specific
incident or conclusive documentation to support managerial abuse, harassment, discriminatory
action, or other improper behavior by management toward appellant that would substantiate a
compensable employment factor. While appellant submitted portions of depositions and witness
statements for corroboration of his allegations that he was a target of management’s disciplinary
actions and that K.P. and M.C. were not truthful in the accounts regarding actions toward him, he
did not submit the full documents for them to be properly evaluated. He submitted only the
portions that were favorable to his argument. Appellant filed numerous grievances, EEO
complaints, and NLRB charges as a result of his allegations of disparate treatment and retaliation
by management, however, no formal finding of fault has been issued. The record is devoid of
any formal finding of wrongdoing, harassment, or other improper action in response to either the
disciplinary actions or disparate treatment in response to his filing of EEO complaints or writing
letters to upper management. Thus, appellant has not established a compensable employment
factor under FECA with respect to the claimed harassment and discrimination. While he may
have been frustrated with the employing establishment’s issuance of and handling of disciplinary

20

Id.

8

actions, his dissatisfaction with management constitutes frustration from not being permitted to
work in a particular environment and is not compensable under FECA.21
As noted, the evidence of record fails to establish any compensable factors of
employment. The Board finds that, as appellant has failed to substantiate any factors of
employment, he has failed to meet his burden of proof to establish his emotional condition claim.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish his
emotional condition claim.
ORDER
IT IS HEREBY ORDERED THAT the November 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

See Cyndia R. Harrill, 55 ECAB 522, 529 (2004) (the Board noted that appellant’s reaction to perceived poor
management must be considered self-generated in that it resulted from her frustration in not being permitted to work
in a particular environment).

9


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

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Appearances:
Pamela M. Byrd, for the appellant
Office of Solicitor, for the Director

Docket No. 10-2301
Issued: August 10, 2011

Case Submitted on the Record

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

JURISDICTION
On September 14, 2010 appellant, through her representative, filed a timely appeal from
decisions of the Office of Workers’ Compensation Programs (OWCP) dated May 5 and July 27,
2010 finding that she was not entitled to an additional schedule award. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has a left upper extremity greater than six percent.
On appeal, appellant asserts that she is entitled to an increased award, and that OWCP did
not sufficiently explain its findings.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 14, 2004 appellant, then a 47-year-old parcel post distribution clerk, filed
an occupational disease claim alleging that she developed work-related tenosynovitis of the left
hand. OWCP accepted left dorsal tenosynovitis, left de Quervain’s tenosynovitis, and left wrist
ganglion cyst as employment related. On September 19, 2006 Dr. Leslie Thomas, a Boardcertified orthopedic surgeon, performed surgical release. Appellant received compensation and
returned to full duty on December 8, 2006.
On June 5, 2007 appellant filed a traumatic injury claim, stating that she injured her left
hand when she tripped on a floor mat and fell. She stopped work that day and returned on
June 19, 2007. The claim was accepted for left hand sprain. Appellant received intermittent
wage-loss compensation while attending medical and physical therapy appointments. On
November 9, 2007 Dr. Thomas advised that she had reached maximum medical improvement.
Appellant filed a schedule award claim on May 27, 2008. By letter dated June 5, 2008,
OWCP informed her that she needed to submit a medical report in accordance with the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides)2 to support her claim. In a September 5, 2008 report,
Dr. Thomas advised that, in accordance with Figure 1625 of the fifth edition of the A.M.A.,
Guides, appellant had a 25 percent loss of flexion of the left hand. On September 26, 2008
Dr. Daniel D. Zimmerman, a Board-certified internist and OWCP medical adviser, found that the
rating by Dr. Thomas was not in accordance with the A.M.A., Guides and could not be used for
schedule award purposes. He recommended a second-opinion evaluation and impairment rating.
OWCP referred appellant to Dr. William O. Hopkins, a Board-certified orthopedic
surgeon. In an October 27, 2008 report, Dr. Hopkins provided findings on examination
including range of motion measurements for the wrist, fingers and thumbs. He cited figures and
tables of the fifth edition of the A.M.A., Guides and advised appellant had a 15 percent
impairment due to loss of wrist flexion, a 7 percent impairment due to loss of wrist deviation,
and a 33 percent hand impairment due to loss of finger and thumb function, for a total 45 percent
left upper extremity impairment due to loss of function. Dr. Hopkins added an additional half
percent for loss of grip strength, yielding a total left upper extremity impairment of 45.5 percent
with a date of maximum medical improvement of November 9, 2007. On November 11, 2008 he
advised that x-rays demonstrated no evidence of post-traumatic arthritic changes in the wrist or
hand. Dr. Hopkins opined that appellant’s physical residuals were the result of chronic tendinitis
with a previous de Quervain’s tendinopathy treated surgically with good results and would relate
her current symptoms of pain, motion and motor loss secondary to some adhesive tenosynovitis
in the area of her injury.
By report dated November 27, 2008, Dr. Zimmerman reviewed the report of Dr. Hopkins.
He advised that, in accordance with the fifth edition of the A.M.A., Guides, appellant had one
percent impairment for radial deviation. Dr. Zimmerman further advised that she would not be
entitled to an impairment of the digits as this would not be due to the accepted condition, and
2

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

2

also found that she was not entitled to a rating for loss of strength or pain. He concluded that
appellant had one percent impairment of the left arm.
By decision dated February 9, 2009, appellant was granted a schedule award for a one
percent impairment of the left upper extremity, a period of 3.12 weeks to run from November 10
to December 1, 2007.
On March 6, 2009 appellant requested a review of the written record. In an April 20,
2009 decision, OWCP’s hearing representative vacated the February 9, 2009 decision and
remanded the case for further development. In a May 12, 2009 report, Dr. Hopkins noted that he
had reviewed Dr. Zimmerman’s report. He stood by his impairment rating of 15 percent for loss
of wrist range of motion and added an additional one percent for chronic pain.
OWCP determined that a conflict in medical opinion arose between Dr. Hopkins,
OWCP’s referral physician and Dr. Zimmerman, OWCP’s medical adviser. It referred appellant
to Dr. Garth Russell, Board-certified in orthopedic surgery. In a September 24, 2009 report,
Dr. Russell noted the history of injury, his review of the medical record and appellant’s
complaint of stiffness and pain in her left wrist. He provided findings on physical examination,
stating there was no loss of motion of the left wrist but weakness in grip. Dr. Russell advised
that, with the use of the dynometer, appellant’s initial left hand grip was 38 pounds, followed by
44, 44 and 40 pounds. He diagnosed strain/sprain of the left wrist secondary to the June 5, 2007
fall, which was superimposed on chronic tendinitis of the first dorsal compartment. Dr. Russell
advised that, in accordance with the sixth edition of the A.M.A., Guides,3 under Table 15-3,
Wrist Regional Grid, based on a diagnosis of wrist pain/strain with no residual instability or loss
of motion but with persistent pain and weakness of left hand grip, appellant had a class 1
impairment with loss of function, for grade C or a six percent impairment and noted that she
could be given an additional one to two percent for pain.
By decision dated October 16, 2009, OWCP awarded appellant an additional five percent
impairment of the left arm or a total six percent impairment. The award was for 15.6 weeks and
ran from December 2, 2007, the end of her previous schedule award, to March 20, 2008.
On November 5, 2009 appellant requested a review of the written record. In a March 18,
2010 decision, OWCP’s hearing representative noted that, OWCP improperly found a conflict in
opinion between two OWCP physicians, Dr. Hopkins, a referral physician, and Dr. Zimmerman,
OWCP’s medical adviser. She noted that its procedures require that after obtaining all necessary
medical evidence, the case should be routed to OWCP’s medical adviser for an opinion
concerning the nature and percentage of impairment. OWCP’s hearing representative set aside
the October 16, 2009 decision and remanded the case for further medical development,
instructing OWCP to refer the record, including Dr. Hopkins’ May 12, 2009 report and
Dr. Russell’s September 24, 2009 second-opinion report, for review and an opinion regarding
appellant’s degree of permanent impairment.
In a March 31, 2010 report, Dr. Zimmerman, reviewed Dr. Russell’s report, who found a
class C impairment of six percent. He advised that under Table 15-3, a wrist sprain/strain with a
3

Id. at (6th ed. 2008).

3

history of painful injury and residual symptoms without objective findings, appellant had a class
1 impairment with a default value of C which yielded a one percent impairment for the
diagnosis. Dr. Zimmerman further advised that, taking her additional diagnoses into account, the
most advantageous would be residuals of the accepted left wrist ganglion cyst. A class 1
impairment for ganglion cyst under Table 15-3 had a default value of C for a two percent
impairment or an additional one percent left upper extremity impairment.
By decision dated April 5, 2010, OWCP found that appellant did not have more than the
six percent impairment previously awarded.
On April 27, 2010 appellant requested a review of the written record. In a July 27, 2010
decision, OWCP’s hearing representative affirmed the April 5, 2010 decision.4
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition will be used.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the Diagnosed Condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and

4

OWCP hearing representative further found that an overpayment in compensation could be declared because
appellant received a six percent schedule award when she was only entitled to one of two percent. See infra note 21.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

9

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

10

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”

4

Clinical Studies (GMCS).11 The net adjustment formula is GMFH - CDX + GMPE - CDX +
GMCS - CDX.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds that appellant has not established that she has more than a six percent
impairment of the left upper extremity. The accepted conditions in this case are left dorsal
tenosynovitis, left de Quervain’s tenosynovitis and left wrist ganglion cyst. Appellant received a
schedule award for a one percent left upper extremity impairment on February 9, 2009 and a
schedule award for an additional five percent on October 16, 2009, for a total impairment of six
percent.
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is to be
used in calculating schedule awards.14 The medical evidence relevant to a left arm impairment
rating include the September 5, 2008 report in which Dr. Thomas rated impairment in
accordance with the fifth edition of the A.M.A., Guides. Likewise, in reports dated October 27,
2008 and May 12, 2009, Dr. Hopkins, who provided a second-opinion evaluation for OWCP,
also provided findings in accordance with the fifth edition of the A.M.A., Guides.15 A medical
opinion not based on the appropriate edition of the A.M.A., Guides has diminished probative
value in determining the extent of a claimant’s permanent impairment.16 Thus, the reports of
Dr. Thomas and Dr. Hopkins are insufficient to establish entitlement to an increased schedule
award.
In a September 24, 2009 report, Dr. Russell, who provided a second-opinion evaluation
for OWCP,17 provided physical examination findings and diagnosed strain/sprain of the left wrist
11

Id. at 385-419.

12

Id. at 411.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
14

Supra note 9.

15

The Board notes that it does not appear that Dr. Hopkins reexamined appellant prior to the May 12, 2009
report.
16

See Fritz A. Klein, 53 ECAB 642 (2002).

17

OWCP initially found that a conflict was created between two OWCP physicians, Dr. Hopkins and OWCP’s
medical adviser. As correctly noted by OWCP’s hearing representative in a March 18, 2010 decision, OWCP
improperly found that a conflict in medical evidence had been created between the two OWCP physicians. Section
8123(a) of FECA provides that if there is disagreement between the physician making the examination for the
United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination. 5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

5

secondary to the June 5, 2007 fall, which was superimposed on chronic tendinitis of the first
dorsal compartment. He advised that, in accordance with the sixth edition of the A.M.A.,
Guides, under Table 15-3, Wrist Regional Grid, based on a diagnosis of wrist pain/strain with no
residual instability or loss of motion but with persistent pain and weakness of left hand grip,
appellant had a class 1 impairment with loss of function, for grade C or a six percent impairment,
and noted that she could be given an additional one to two percent for pain.
Following remand, in a March 31, 2010 report, OWCP’s medical adviser reviewed the
evidence, including Dr. Russell’s findings. He advised that the most advantageous schedule
award would be for residuals of the accepted left wrist ganglion cyst, for a class 1 impairment,
that under Table 15-3 had a default value of C for a two percent.
The maximum class 1 impairment for a wrist sprain/strain under Table 15-3 is two
percent,18 not the six percent found by Dr. Russell. While this can be modified, as explained in
section 15.3 of the sixth edition of the A.M.A., Guides,19 Dr. Russell did not indicate that he
followed the net adjustment formula.20 The Board finds that the evidence supports that appellant
has no more than a six percent right upper extremity impairment, for which she received
schedule awards. There is no other medical evidence of record addressing the extent of
appellant’s permanent impairment under the appropriate edition of the A.M.A., Guides, which
supports any greater impairment.21
As to appellant’s argument on appeal that OWCP did not fully explain its findings, while
it erred in finding a conflict in medical evidence between Dr. Hopkins and OWCP’s medical
adviser, this was corrected. In the subsequent decisions, OWCP fully explained its findings and
conclusions regarding appellant’s entitlement to a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

18

A.M.A., Guides, supra note 3 at 395.

19

Id. at 405-419.

20

Id. at 411.

21

OWCP continued to develop the claim, and on August 9, 2010 issued a preliminary overpayment finding on the
grounds that appellant was overpaid by the October 16, 2009 schedule award. After it issued the July 27, 2010
decision, appellant filed an appeal with the Board of the May 5 and July 27, 2010 schedule award decisions. From
that point forward, the Board had jurisdiction over the issue of left upper extremity impairment and entitlement to an
additional schedule award. Cathy B. Millin, 51 ECAB 331 (2000). By decision dated October 21, 2010, OWCP’s
hearing representative reversed the preliminary overpayment finding, vacated the October 16, 2009 schedule award
decision and remanded the case to OWCP for further develop of appellant’s impairment rating. By decision dated
April 14, 2011, OWCP found that appellant was not entitled to an additional schedule award. It had no jurisdiction
to issue a decision that might affect the issue before the Board. Therefore, OWCP’s decision dated October 21,
2010 is null and void with regards to the schedule award finding, and the April 14, 2011 decision is null and void.
D.S., 58 ECAB 392 (2007).

6

CONCLUSION
The Board finds that appellant has no more than a six percent permanent impairment of
the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 27 and May 5, 2010 are affirmed.
Issued: August 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-678
Issued: December 1, 2010

Case Submitted on the Record

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

JURISDICTION
On January 11, 2010 appellant filed a timely appeal from a December 17, 2009 merit
decision of the Office of Workers’ Compensation Programs. 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 disability from January 3 to 30, 2009
causally related to his accepted back injuries.
FACTUAL HISTORY
On December 7, 2001 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained back and neck injuries from a motor vehicle
accident while in the performance of duty on that date. The Office accepted the claim for
cervical and lumbar sprains on December 26, 2001.

Appellant filed a traumatic injury claim on February 26, 2002 alleging he suffered back
and neck injuries in a motor vehicle accident on February 25, 2002.1 On April 12, 2002 the
Office accepted the claim for aggravation of lumbar and cervical strains. Appellant returned to a
light-duty position in October 2002. He received compensation for intermittent dates claimed.
A May 12, 2006 statement of accepted facts indicated the Office had accepted an aggravation of
spinal stenosis at L3-S1. On September 12, 2008 it accepted the claims for permanent
aggravation of spinal stenosis.
On January 19, 2009 appellant filed a claim for compensation (Form CA-7) for the period
January 3 to 16, 2009. On February 2, 2009 he filed a Form CA-7 for the period January 17
to 30, 2009.
With respect to medical evidence, appellant submitted a November 24, 2008 report from
Dr. Daniel Leizman, who provided a history that appellant had sustained work-related injuries on
December 7, 2001 and appellant “would like to discuss taking some time off work.”
Dr. Leizman provided results on examination and diagnosed neck and lumbar sprains. He stated
that appellant “was felt to be disabled from work” from November 24 to December 31, 2008. In
a December 31, 2008 report, Dr. Leizman provided results on examination and again diagnosed
neck and lumbar sprains. He stated that appellant was felt to be disabled until March 31, 2009.
By report dated January 19, 2009, Dr. Leizman stated that cervical and lumbar pain had
improved. He again indicated that appellant was felt to be disabled until March 31, 2009. In a
February 2, 2009 report, Dr. Leizman indicated that appellant could work with restrictions as of
February 5, 2009.
In a decision dated May 19, 2009, the Office denied the claim for compensation from
January 3 to 30, 2009. It found the medical evidence insufficient to establish the claim.
Appellant requested a hearing before an Office hearing representative, which was held on
October 13, 2009. At the hearing, he indicated that he had been working full duty, but had
sustained a work-related foot injury on November 12, 2008. According to appellant, he had been
off work in December 2008 for the foot injury, and then he “was having an increase in spasms,
weakness in my legs, in my neck and the spasms were coming daily and I wasn’t able to sleep at
night.” He indicated that on or around January 3, 2009 he went to his doctor and a decision was
made to take him off work. Appellant stated that he had not received wage-loss compensation
from January 3 to 30, 2009 pursuant to the foot injury.
By decision dated December 17, 2009, the hearing representative affirmed the May 19,
2009 Office decision. The Office found the medical evidence not sufficient to establish an
employment-related disability during the period claimed.

1

OWCP File No. xxxxxx666. This claim was administratively combined with the December 7, 2001 claim.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 To meet his burden of proof, appellant
must submit medical evidence based on a complete and accurate factual and medical history,
with an opinion supported by sound medical reasoning that the disability is causally related to
the employment injury.6 Findings on examination are generally needed to support a physician’s
opinion that an employee is disabled for work. When a physician’s statements regarding an
employee’s ability to work consist only of repetition of the employee’s complaints that he hurt
too much to work, without objective findings of disability being shown, the physician has not
presented a medical opinion on the issue of disability or a basis for payment of compensation.7
The Board will not require the Office to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.8
ANALYSIS
In the present case, appellant has claimed compensation for wage-loss from January 3
to 30, 2009 as a result of his accepted back injuries from the 2001 and 2002 motor vehicle
accidents. It is his burden of proof to establish the claimed period of disability. The Board finds
that appellant did not meet his burden of proof, as the evidence does not contain a reasoned
medical opinion on the issue.
Appellant received treatment on November 24 and December 31, 2008 and January 19,
2009 from Dr. Leizman. While Dr. Leizman briefly stated in these reports that appellant was
2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

See S.S., 59 ECAB 315 (2008).

7

Fereidoon Kharabi, supra note 5.

8

Id.

3

“felt to be disabled” from November 24, 2008, he does not provide medical rationale to support
his opinion. He did not provide a clear opinion that any disability was causally related to the
accepted back injuries, with medical reasoning to support the opinion. Dr. Leizman did not
provide a complete history, as the reports refer briefly to a December 7, 2001 injury without
additional detail. Moreover, appellant reported that he was off work prior to January 3, 2009 and
filed a claim for a foot injury. Dr. Leizman does not discuss the foot injury or otherwise explain
his opinion on disability. As noted above, the medical opinion must be based on a complete
background and supported by medical explanation. In the absence of such evidence, the Board
finds that appellant did not meet his burden of proof. The Board notes that to the extent
appellant is claiming his back symptoms were a consequence of a November 2008 foot injury,
that issue is not before the Board on the current appeal.9
CONCLUSION
The Board finds that appellant did not establish disability from January 3 to 30, 2009
causally related to his accepted back injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 17, 2009 is affirmed.
Issued: December 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Appellant may pursue such a claim under the November 2008 foot injury claim.

4