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

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Docket No. 08-1194
Issued: October 22, 2008

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

Case Submitted on the Record

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

JURISDICTION
On March 17, 2008 appellant timely appealed the March 7, 2008 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant was disabled on or after March 1, 2004 as a result of her
December 31, 2002 employment-related back injury.
FACTUAL HISTORY
Appellant, a 58-year-old retired letter carrier, has an accepted occupational disease claim
for disc herniations of the lumbar (L4-5) and thoracic (T11-12) spine, which arose on or about

December 31, 2002.1 By the time the Office accepted her claim, she had already retired from
federal service.2 For approximately 9 months prior to her February 29, 2004 retirement,
appellant worked as a modified clerk.3 This limited-duty assignment was the result of a 1999
employment-related bilateral hip condition.4 Her modified clerk duties included answering
telephones, express mail delivery, box distribution, assisting with rural route carrier check-in and
miscellaneous clerical duties.5
Dr. Jon H. Engelking, a Board-certified orthopedic surgeon and Office referral physician,
examined appellant on March 19, 2004. His diagnosis of herniated discs at L4-5 and T11-12
formed the basis of the Office’s April 20, 2004 acceptance of the claim. Dr. Engelking also
diagnosed multilevel degenerative disc disease and degenerative joint disease of the spine, as
well as degenerative arthritis of the hips, status post bilateral total hip replacement. He noted
that her low back condition and herniated disc were directly related to her work activities.
Dr. Engelking reported that appellant had a good result from the L4-5 discectomy, which by her
own admission completely resolved her lumbar pain. However, she continued to have subjective
paresthesias in the left leg. As to her ability to work, Dr. Engelking noted that appellant was no
longer performing limited-duty work because she had voluntarily taken an early retirement. He
explained that she would continue to require limited-duty restrictions of no lifting in excess of 25
pounds. Dr. Engelking also stated that appellant should avoid any repetitive kneeling, bending,
squatting and crouching type activities. However, these restrictions were because of her bilateral
total hip arthroplasty implants. He stated that she could continue to work full time as a modified
clerk. On April 10, 2004 Dr. Engelking completed a work capacity evaluation (OWCP-5c)
wherein he restricted appellant to walking four hours in an eight-hour day. He also imposed a
25-pound lifting restriction, with a two-hour daily limitation. Appellant was also precluded
from squatting and kneeling. Dr. Engelking indicated that she had reached maximum medical
improvement and that her restrictions were permanent.
Dr. James W. Manz, a Board-certified orthopedic surgeon, initially examined appellant
on March 26, 2004. Her chief complaint was left lower extremity discomfort. Dr. Manz noted
that appellant reported tremendous improvement of her symptoms following back surgery in
1

Appellant filed the current claim on January 15, 2003. She underwent a lumbar laminectomy and discectomy on
January 21, 2003. The Office denied appellant’s claim on March 21, 2003. However, that decision was
subsequently set aside and the case remanded for further medical development. On April 20, 2004 it accepted her
thoracic and lumbar herniated discs as well as the January 2003 surgery.
2

Beginning March 1, 2004, appellant received a regular (nondisability) retirement annuity from the Office of
Personnel Management.
3

Appellant’s wages as a modified clerk were consistent with her prior earnings as a letter carrier.

4

The Office accepted permanent aggravation of degenerative joint disease of the right hip, bursitis of the right
hip, and osteoarthritis of the left hip, which arose on or about February 18, 1999. Appellant underwent a number of
surgical procedures, including right total hip arthroplasty in June 2002 and left total hip arthroplasty in
February 2003.
5

According to a December 10, 2003 modified assignment, appellant’s physical restrictions included 2 hours of
standing, walking and driving, 1 hour of pushing/pulling, ½ hour of bending, 3 hours of reaching above shoulder, a
five-pound lifting limitation and no kneeling and twisting. She was also precluded from working in slippery, icy or
snowy conditions while delivering express mail.

2

January 2003, but she was left with some residual numbness-type dysesthesias in her left leg and
foot. Appellant also reported some cramping in her calf and the ball of her foot. According to
Dr. Manz, appellant felt that her current level symptomatology was “livable.” Her only
treatment was an occasional over-the-counter analgesic. Dr. Manz did not recommend any
specific medical intervention.
Appellant filed a claim for a schedule award in August 2004. Dr. Manz referred her to
Dr. Andrew E. Floren for an impairment rating regarding her back. When Dr. Floren examined
appellant on August 17, 2004, he noted that she had persistent paresthesias from both discs (L45, T11-12) and weakness in the left quadriceps and hamstring.6 Dr. Floren believed appellant’s
problems were caused by her work injury. The only treatment he recommended was continued
over-the-counter anti-inflammatories and a return visit to either himself or Dr. Manz if
appellant’s condition worsened. As to her ability to work, Dr. Floren noted appellant had retired,
but he believed she was capable of returning to work as of August 17, 2004. He further noted
that appellant should not do any stooping, twisting or bending. Additionally, Dr. Floren advised
she should limit her lifting to 20 pounds or less. He also indicated that appellant should not
stand on her feet all day. In an August 26, 2004 work capacity evaluation (OWCP-5c),
Dr. Floren limited walking and standing to four hours a day and the previous 20-pound weight
restriction was applied to pushing and pulling, as well as lifting. He also precluded squatting,
kneeling, climbing and operating a motor vehicle at work. The August 26, 2004 limitations
pertained to both appellant’s back and bilateral hip conditions.
On August 8, 2005 appellant received a schedule award for three percent impairment of
the left lower extremity due to sensory deficit in the L5 nerve root distribution.
On December 15, 2005 appellant filed a claim for compensation (Form CA-7) alleging a
loss in wage-earning capacity beginning March 1, 2004. She reported receiving a monthly
retirement (CSRS) annuity of $1,281.00 since March 1, 2004.
In April 2006, appellant experienced pain in her right hip and leg. Dr. Mark J. Herr, a
Board-certified orthopedic surgeon, examined her on April 11 and 19, 2006. He reported that
appellant’s right leg pains were consistent with tendonitis and bursitis. By the time she returned
for follow-up on April 19, 2006, her condition had markedly improved. Dr. Herr noted
appellant’s prior history of back problems, including surgery and surmised that her back
abnormalities could have caused some of her pain. He advised appellant that if her back
continued to hurt, she should have it looked at by some other physician as that was not his area
of expertise.
Dr. David H. Palmer, a Board-certified orthopedic surgeon, had previously operated on
appellant’s hip. On May 30, 2006 appellant consulted with Dr. Palmer regarding her ongoing
right hip pain. Dr. Palmer later diagnosed psoas tendinopathy, which he attributed to appellant’s
total hip arthroplasty. He recommended that she undergo an arthroscopic psoas tendon release.

6

Dr. Floren is a Board-certified family practitioner. He is also Board-certified in preventive/occupational
medicine. Dr. Floren found a 30 percent whole person impairment, which included components for the lumbar and
thoracic herniated discs as well as weakness in the left lower extremity.

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Dr. T. Sunil Thomas, a Board-certified orthopedic surgeon, saw appellant on
July 5, 2006. He had operated on her lumbar spine in January 2003. Dr. Thomas reported that
appellant had done well following back surgery, but over the course of the past four months she
experienced increasing pain in the right hip and anterior thigh region. He recommended
obtaining a lumbar magnetic resonance imaging (MRI) scan to determine whether appellant had
a recurrence of her prior condition or whether there was a new upper lumbar disc herniation.
Dr. Thomas diagnosed unspecified backache and displaced intervertebral disc, site unspecified.
In a follow-up visit on July 7, 2006, Dr. Thomas reviewed a lumbar MRI scan obtained
earlier that same day. This latest scan revealed stenosis at L4-5 and a L3-4 right-side disc
herniation, superimposed on congenital stenosis. He noted that appellant was scheduled for
surgery to release her psoas tendon and he suggested that she proceed with the surgery.
According to Dr. Thomas, the etiology of appellant’s leg pain was uncertain. He explained that
if the psoas tendon release worked, he would postpone any further action regarding appellant’s
back condition. However, if she continued to experience back and leg pain, he would then
address the problems noted at the L3-4 level.
Dr. Palmer operated on appellant’s right hip on July 28, 2006.
In August 2006, the employing establishment advised the Office that but for appellant’s
retirement in 2004, she would still have been provided the modified clerk position initially
offered in June 2003.
On December 4, 2006 the Office issued a loss of wage-earning capacity determination
based on a “Modified Rural Carrier” position appellant purportedly held as of May 27, 2003.
The Office rescinded the December 4, 2006 decision on March 5, 2007.
In a separate letter dated March 5, 2007, the Office advised appellant that she was not
entitled to compensation following her February 29, 2004 retirement. It explained that prior to
her retirement she had been working limited-duty for her hip condition with no loss of pay.
According to the Office, the medical evidence regarding appellant’s back condition showed that
she was capable of working full-time, limited duty at the time of her February 29, 2004
retirement. She was afforded 30 days to submit additional evidence or argument in support of
her claim for wage-loss compensation beginning March 1, 2004.
Appellant responded on March 22, 2007. She argued, among other things, that the
limited-duty position she held prior to her February 29, 2004 retirement was not an
accommodation of her back injury, but was instead related to her bilateral hip condition.
Appellant also declined to submit any additional medical evidence. She believed the medical
evidence already included in her two case files should suffice for purposes of determining her
loss of wage-earning capacity.
In a decision dated March 7, 2008, the Office denied appellant’s claim for wage-loss
compensation beginning March 1, 2004.

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LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of her claim, including
that the medical condition for which compensation is claimed is causally related to the claimed
employment injury.7 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.8 The evidence submitted must be reliable,
probative and substantial.9
For purposes of computing compensation benefits, “Disability means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury.”10 When a claimant stops working at her employing establishment for reasons unrelated
to her accepted physical or emotional injury, she has no disability within the meaning of the
Federal Employees’ Compensation Act.11
ANALYSIS
The record does not support appellant’s claim for wage-loss compensation beginning
March 1, 2004. There is no probative medical evidence demonstrating either total or partial
disability due to her December 31, 2002 employment-related back injury. Appellant voluntarily
retired effective February 29, 2004. Prior to her retirement, she worked as a modified clerk due
to her employment-related bilateral hip condition. As a modified clerk, appellant continued to
earn the wages she had previously received as a letter carrier. The medical evidence of record
does not indicate that appellant’s accepted back condition precluded her from continuing to
perform the modified clerk position she held prior to her February 29, 2004 voluntary retirement.
Dr. Engelking examined appellant within three weeks of her retirement and found her
able to continue to work full time as a modified clerk. He noted that she had a good result
following her January 21, 2003 L4-5 discectomy. When appellant saw Dr. Engelking on
March 19, 2004, she reported that her lumbar pain had completely resolved following surgery.
The only noted residual was subjective paresthesias in appellant’s left leg. However, this did not
interfere with appellant’s ability to work as a modified clerk. The physical restrictions
Dr. Engelking identified in his March 19, 2004 report pertained to her bilateral hip condition, not
her lumbar and thoracic disc herniations.
When Dr. Manz saw appellant a week later he too reported minimal symptoms regarding
appellant’s left lower extremity. He noted residual numbness-type dysesthesias in her left leg,
foot, some cramping in her calf and the ball of her foot. She described her then-current
symptomatology as “livable.” Appellant’s only treatment was an occasional over-the-counter
7

20 C.F.R. § 10.115(e); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

8

20 C.F.R. § 10.115(f).

9

Id. at § 10.115.

10

Id. at § 10.5(f); see Robert A. Flint, 57 ECAB 369, 374 (2006).

11

See Richard A. Neidert, 57 ECAB 474, 482 (2006).

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analgesic. Dr. Manz did not recommend any specific intervention when he saw her on
March 26, 2004.
Six months after appellant’s retirement, she was seen by Dr. Floren for purposes of
determining the extent of any permanent impairment due to her accepted back condition. In the
course of his August 17, 2004 evaluation, he also addressed appellant’s ability to work.
Although she had retired, Dr. Floren believed her capable of returning to work. The majority of
the restrictions noted by him were in keeping with the restrictions identified in the December 10,
2003 modified assignment appellant previously accepted, but in two respects Dr. Floren’s
restrictions were more severe. Whereas she had previously been able to drive for 2 hours and
bend for ½ hour, he precluded bending and operating a motor vehicle at work. This evidence is
indicative of appellant’s inability to perform at least some of her modified clerk duties,
particularly with respect to express mail delivery as she can no longer drive at work. However, it
is not entirely clear whether these limitations are a result of appellant’s accepted back injury.
Dr. Floren was aware that she had undergone bilateral hip arthroplasty and his August 26, 2004
work capacity evaluation did not clearly distinguish which limitations applied to appellant’s
prosthetic hips, her disc herniations or both. Moreover, it is unclear as to the duration of the
above-noted restrictions. Neither his narrative report nor the work capacity evaluation identified
her limitations as permanent.
There is a 20-month gap in the record regarding appellant’s medical treatment. After
seeing Dr. Floren in August 2004, her next reported medical treatment occurred in April 2006,
when she saw Dr. Herr regarding her right hip and leg complaints. Although there was some
suggestion that appellant’s right hip and leg pain might have been related to her back problems,
Dr. Palmer ultimately diagnosed psoas tendinopathy, which he attributed to her total hip
arthroplasty. Appellant underwent a right hip psoas tenotomy on July 28, 2006. Any disability
associated with her right hip condition and the July 28, 2006 surgery is not compensable under
the current claim.
When Dr. Thomas saw appellant a few weeks prior to her July 28, 2006 hip surgery, he
noted evidence of a L3-4 right-side disc herniation. However, he stated that the etiology of her
leg pain was uncertain. Even if the noted lumbar disc herniation contributed to appellant’s right
lower extremity complaints, the Office has not accepted the current claim for L3-4 disc
herniation, she has not presented any evidence to suggest that this condition is employmentrelated and more specifically, that it is causally related to her accepted back injury of
December 31, 2002.12
The medical evidence of record does not establish that appellant was disabled on or after
March 1, 2004 as a result of her December 31, 2002 employment-related back injury. As
previously noted, she voluntarily retired on February 29, 2004 and the record does not
demonstrate that appellant’s accepted back condition precluded her from continuing to perform
the modified clerk position she held prior to her retirement. Accordingly, the Office properly
denied appellant’s claim for wage-loss compensation.
12

Where an employee claims that a condition not accepted or approved by the Office was due to an employment
injury, he bears the burden of proof to establish that the condition is causally related to the employment injury.
Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

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CONCLUSION
Appellant did not establish entitlement to wage-loss compensation on or after March 1,
2004 due to her December 31, 2002 back injury.
ORDER
IT IS HEREBY ORDERED THAT the March 7, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 15-1013
Issued: June 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On March 31, 2015 appellant, through counsel, filed a timely appeal from a February 3,
2015 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an aggravation
of an underlying medical condition; and (2) whether appellant established a recurrence of total
disability on November 19, 2010 causally related to his accepted employment injuries.
On appeal, counsel asserts that the February 3, 2015 decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 13, 2008 appellant, then a 57-year-old mail handler/Mark II operator, filed
an occupational disease claim (Form CA-2) alleging that his employment duties caused
degenerative joint disease of both feet and hallux valgus (a bunion deformity) on the right. The
claim was adjudicated by OWCP under File No. xxxxxx990.
Medical evidence submitted in support of this claim included December 13, 2007 x-rays
of the right and left foot that showed bilateral mild degenerative joint disease. On March 11,
2008 Dr. Laurence E. Welker, a podiatrist at the Department of Veterans Affairs (VA), noted
treating appellant every three months since 2002 for severe plantar keratosis on the entire soles
of both feet, onychomycosis (nail fungus) of all toenails and bilateral degenerative joint disease
in the feet. He advised that all conditions resulted in extreme discomfort and extended periods of
weight bearing would exacerbate the conditions.
In a March 11, 2008 report, Dr. Austin S. Reeves, a podiatrist, reported that a servicerelated immersion injury left appellant with a disability of chronic waxy hyperkeratotic skin that
covered the entire plantar aspect of both feet. He noted that appellant was treated with periodic
debridement of the hyperkeratosis in an attempt to decrease pressure and thus decrease pain so
that he could ambulate with less discomfort. Dr. Reeves opined that appellant’s job duties that
required continuous standing had aggravated the condition over the years to a point now where
he was in a state of chronic pain, noting that standing for any period of time caused discomfort
such that he could no longer perform his job duties. He submitted treatment notes dated
August 4, 2008 to January 21, 2008.
Dr. Andrea L. York, a VA attending Board-certified family physician, noted examining
appellant on February 23, 2008 for chronic foot pain which was painful with weight bearing on
examination. She reported foot x-ray findings of degenerative joint disease which was likely
caused by his 30-year history of standing on his feet all day at work.
OWCP accepted the claim for hallux valgus (acquired), bilateral, on March 31, 2008.
Appellant continued to work regular duty. On August 21, 2009 he filed a schedule award claim
(Form CA-7).
On November 28, 2009 appellant filed a second occupational disease claim, alleging that
he had developed bilateral ankle conditions due to employment activities. This claim was
adjudicated by OWCP under File No. xxxxxx687.
In a July 7, 2009 report, Dr. Roshan Sharma, a Board-certified physiatrist, noted
appellant’s complaints of foot pain. She reported that his work involved standing on his feet.
Examination of both feet demonstrated that appellant had flat feet with bilateral hallux valgus,
more prominent on the right, and severe hyperkeratotic thickening of the plantar fascia. On
August 17, 2009 Dr. Sharma noted that constant standing on a floor caused degenerative arthritis
of feet and severe hyperkeratotic plantar lesions. She checked a form box “yes,” indicating that
her diagnoses were caused or aggravated by employment activity. Right and left ankle x-rays on
September 24, 2009 demonstrated bilateral superior medial talar dome defect that could be

2

osteochondritis dissecans.2 On November 10, 2009 Dr. Sharma reiterated her conclusions and
advised that appellant had 15 percent whole person impairment.
On November 30 and December 17, 2009 Dr. Reeves, noted appellant’s complaint of
ankle pain at work where his job duties included standing, walking, and running machinery. He
described the ankle x-ray findings and advised that appellant’s work could have contributed
because he stood on hard surfaces at work for a long period of time.
In December 2009, OWCP referred appellant to Dr. Austin Gleason, a Board-certified
orthopedic surgeon, for an impairment evaluation.3 In a January 12, 2010 report, Dr. Gleason
provided examination findings and diagnosed bilateral “rocker bottom” foot with moderate
degenerative arthritis in mid and hind-foot.
On February 1, 2010 OWCP accepted the File No. xxxxxx687 claim for other disorders
of joint, ankle, and foot, bilateral. The claims were combined in March 2010.
On March 4, 2010 the VA informed appellant that he had a combined service-connected
disability rating of 70 percent, 50 percent of which was due to dermatophytosis (a fungal
condition) with flattened arches of feet, 30 percent due to dermatophytosis of hands, and 10
percent due to hypertensive heart disease, and 10 percent due to hypertension.4
On February 18, 2011 appellant filed a recurrence claim under File No. xxxxxx687. He
stated that his condition worsened to where he could no longer bear weight or perform his job
duties. Appellant stopped work on November 19, 2010. By letter dated March 1, 2011, OWCP
informed him of the evidence needed to support his recurrence claim.
In an undated statement appellant related that his physician put him on medical leave on
November 19, 2010 due to his bilateral ankle and foot disorders, and this was continued by the
doctor in February 2011. He reported that his job duties required constant walking, standing, and
lifting for eight hours daily on concrete, and this caused pain.
Medical evidence submitted included April 22, 2010 magnetic resonance imaging (MRI)
scans of the right and left foot that were suspicious for osteochondritis dissecans. An August 14,
2010 x-ray of the right tibia/fibula demonstrated mild osteoarthritis of the knee and ankle. A left
tibia/fibula x-ray that day demonstrated mild osteoarthritis of the ankle. Additional x-rays that

2

Osteochondritis dissecans is defined as inflammation of both bone and cartilage resulting in the splitting of
pieces of cartilage into the joint. Dorland’s Illustrated Medical Dictionary (29th ed. 2000).
3

On March 12, 2010 appellant was granted a schedule award for eight percent impairment of the right lower
extremity and eight percent impairment on the left. The award was for 46.08 weeks and was to run from January 12
to November 30, 2010. In a May 16, 2013 decision, appellant was granted schedule awards for an additional 5
percent impairment of the left leg and 5 percent impairment on the right, for a total 13 percent impairment of each
leg. The award was for 28.8 weeks, to run from February 14 to September 3, 2013. Much of the claim development
pertaining to permanent impairment is omitted from this decision as the issue of a schedule award is not before the
Board on the present appeal.
4

The record includes VA rating examinations and decisions dated from May 3, 1979 to August 19, 2003.

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day of bilateral weight bearing feet showed tendency to pes planus (flat foot) and early
osteoarthritis. Bilateral ankles had mild osteoarthritis.
In treatment notes from September 13 to October 20, 2010, Dr. Sharma noted treating
appellant with therapy on both ankles. On November 19, 2010 Dr. York noted in her report that
he was having more foot pain, exacerbated by standing on concrete at work. Appellant also
reported increased stress and anxiety at work and wanted to take medical leave for three months
and then retire. Dr. York provided examination findings and diagnosed foot degenerative joint
disease, chronic foot pain, depression, anxiety disorder, and chronic back pain. She completed a
request for three months medical leave and recommended a return in February 2011 to assess
appellant’s work status.
Dr. Welker completed a December 2, 2010 treatment note in which he noted appellant’s
complaint of bilateral foot pain.
He diagnosed onychocryptosis (in-grown toenail),
onychomycosis (nail fungus), and keratosis (callus formation). On February 11, 2011 Dr. York
noted that appellant continued to report foot pain, he felt he was unable to return to work, and he
planned to retire on June 1, 2011. She diagnosed foot pain and ankle osteoarthritis, advised that
he was unable to stand for long periods due to pain, and could not work for the period
November 19, 2010 to May 31, 2011 due to his medical condition. Dr. York completed an
application for family medical leave. On March 3, 2011 Dr. Welker reiterated his diagnoses. In
an April 4, 2011 attending physician’s report, Dr. Sharma diagnosed ankle pain and osteoarthritis
caused by constant standing at work.5
Kathy Crank, customer service supervisor at the employing establishment, submitted
information on February 11 and 28 and March 1 and 22, 2011. She reported that appellant had
two claims and that during the period 2008 to 2010 he complained of foot pain and occasionally
took sick leave. Ms. Crank related that on November 19, 2010 he submitted documentation for
medical leave due to anxiety, depression, and foot disorder which indicated that he was unable to
work from November 19, 2010 to May 31, 2011. She stated that appellant was working full duty
when he stopped work on November 19, 2010.
By decision dated May 4, 2011, OWCP denied appellant’s claim for a recurrence of
disability on November 19, 2010. Appellant timely requested a review of the written record and
submitted evidence previously of record or not relevant to the period of claimed disability. In an
undated statement he alleged that his original injury was aggravated by prolonged standing,
lifting, and walking which caused constant ankle pain such that he could not perform his job
duties.
In May 26, 2011 reports, Dr. York noted appellant’s complaint of chronic foot and ankle
pain which she advised directly resulted from job duties. Appellant had painful ankle range of
motion and pes planus. Dr. York diagnosed degenerative joint disease of the feet and ankles,
depression, and hypertriglyceridemia. She advised that appellant could not be on his feet for
more than five minutes at a time and could never return to work.

5

Appellant also submitted several Form CA-7 claims for compensation.

4

On June 27, 2011 Dr. Reeves reported that appellant was diagnosed with osteochondritis.
He related that appellant felt unable to work, stating that his foot condition was aggravated by
job duties of prolonged standing, prolonged walking, stooping, and bending, etc., which
contributed to his foot pain.
On June 14, 2011 Ms. Crank related that appellant presented medical documentation
stating that he could never return to regular or modified duty.
In a July 25, 2011 decision, an OWCP hearing representative remanded the case for
OWCP to obtain a second opinion evaluation regarding whether appellant was disabled for any
period after November 19, 2010 as a direct result of his employment-related injury.
OWCP referred appellant to Dr. Robert E. Holladay, IV, a Board-certified orthopedic
surgeon, for a second opinion evaluation. He was provided a set of questions and a statement of
accepted facts (SOAF) that described both File Nos. xxxxxx687 and xxxxxx990. It stated that
File No. xxxxxx990 was accepted for bilateral acquired hallux valgus, and that File No.
xxxxxx687 was accepted for bilateral disorders of joint, ankle and foot. The SOAF indicated
that appellant’s job duties required standing eight hours a day on cushioned mats provided by the
employing establishment, and that he could sit down and rest as needed. It listed nonworkrelated foot conditions of dermatophytosis, bilateral flatfoot, talar dome lesion/osteochondritis
lesions, and bilateral degenerative joint disease of the feet.
In a September 13, 2011 report, Dr. Holladay noted his review of the medical record and
appellant’s complaint of chronic foot pain. He described examination findings and diagnosed
dermatophytosis of feet, bilateral flat feet deformity, degenerative joint disease of both feet, and
anxiety/depression. In answer to OWCP questions, Dr. Holladay noted that none of the
diagnosed foot conditions had been accepted as employment related. He opined that the medical
evidence did not support that appellant’s current ankle or foot condition was due to work duties,
including his arthritic condition. Dr. Holladay further advised that the osteochondritis dissecans
seen on MRI scan was not directly related to a work event, noting that this would be due to a
specific trauma with inversion of the right ankle and ankle sprain, which was not identified in the
case record. He concluded that, based upon his review of the available medical records, clinical
examination, and history, appellant’s bilateral foot and ankle condition did not worsen to the
point of total disability on November 19, 2010, finding that his current foot and ankle condition
was more likely related to his underlying preexisting conditions and had no relationship to a
specific work injury.
In a merit decision dated September 21, 2011, OWCP found the weight of the medical
evidence rested with the opinion of OWCP referral physician Dr. Holladay and denied
appellant’s claim that he sustained a recurrence of disability on November 19, 2010.6
Appellant, through counsel, timely requested a hearing. Dr. Sharma submitted an
attending physician’s report on October 3, 2011 in which she reiterated that standing on concrete
caused him chronic ankle and foot pain and arthritis.

6

On September 19, 2011 appellant’s retirement was approved.

5

On December 12, 2011 an OWCP hearing representative set aside the September 21,
2011 decision, finding that appellant did not establish a recurrence of disability. She remanded
the case to OWCP to prepare a more complete SOAF and forward medical records from both
File Nos. xxxxxx990 and xxxxxx687 to Dr. Holladay to address whether any work factors over
appellant’s course of employment contributed to the diagnosed foot and ankle conditions, and
whether the evidence established that he was no longer able to perform his employment duties on
November 19, 2010 due to a worsening of the conditions accepted under both claims or any
other work-related condition.
On December 20, 2011 and January 5, 2012 OWCP requested that the employing
establishment forward information regarding appellant’s job duties.
On January 12, 2012 Ms. Crank forwarded a description of appellant’s position, which he
held for approximately 22 years.7 She indicated that he worked at the employing establishment
from June 1980 until he stopped on November 18, 2010 and then retired in July 2011.
Ms. Crank stated that during the period 2008 to 2010 appellant was allowed to take breaks after
he completed Mark II duties and before the end of his tour.
On March 5, 2012 appellant’s VA disability rating was increased to 80 percent, 60
percent of which was due to dermatophytosis of hands, 50 percent due to with flattened arches of
feet, 10 percent due to hypertensive heart disease, and 10 percent due to hypertension. By letter
dated March 29, 2012, OWCP informed appellant that his claim had been reviewed in order to
determine if a specific condition could be accepted as work related. He was informed that his
claim had been updated to include: aggravation of osteochondritis dissecans, bilateral, ankle and
foot.
In April 2012, OWCP again referred appellant to Dr. Holladay for a second opinion
evaluation. The SOAF provided at this time was similar to that provided in 2011. The only
significant difference in the two SOAFs was that the 2012 statement included the FECA
definition for a recurrence of disability. Dr. Holladay was also provided definitions for
precipitation, acceleration, and aggravation.
In a May 24, 2012 report, Dr. Holladay noted his review of the medical record for both
claims, including his previous report, and a March 29, 2012 SOAF. He discussed both case
records and the accepted conditions. Dr. Holladay provided physical examination findings and
diagnosed dermatophytosis of the feet, bilateral flat foot deformities, bilateral acquired hallux
valgus, and osteochondritis dissecans of both ankles. He explained that appellant had very mild
hallux valgus with no severe bunion condition and no objective evidence of an ongoing active
condition. Dr. Holladay further related that, although appellant had subjective pain complaints,
there were no objective findings in the ankle joints to show that the osteochondritis dissecans
was an ongoing, active condition. He noted that the dermatophytosis was service related and
continued to be active and that this dermatological condition caused thickened calluses on the
7

This indicated that appellant operated a Mark II machine which canceled mail by sending it onto a track with
four bins. The operator would then pull the mail from the bins and place it into a two-foot tray. He would also clear
jams and restart the machine. The physical requirements involved prolonged standing, walking, bending and
reaching, and handling heavy containers up to 70 pounds.

6

plantar aspect of both feet. Dr. Holladay further noted that appellant additionally had flatfoot
deformities that were service related. He opined that this condition continued to be present and
was likely the origin of the appellant’s ongoing complaints of pain. In a lengthy explanation,
Dr. Holladay advised that the record contemporaneous with November 19, 2010 did not include
objective evidence to support that the accepted conditions of bilateral hallux valgus and
osteochondritis dissecans had progressed or showed clinical change such that they became totally
disabling on that day or that appellant’s work activities aggravated his service-related foot
conditions such that on November 19, 2010 he was unable to work.
In a merit decision dated June 8, 2012, OWCP found the weight of the medical evidence
rested with the opinion of Dr. Holladay and denied appellant’s claim that he sustained a
recurrence of disability on November 19, 2010. Appellant, through counsel, timely requested a
hearing of the June 8, 2012 decision.
In a September 21, 2012 report, Dr. Welker advised that appellant had been his patient
since 2002 with diagnoses of severe plantar keratosis involving the soles of both feet,
onychomycosis of all toenails, and degenerative joint disease of both feet. He noted that
appellant’s work involved prolonged standing which worsened the painful keratosis. In a
September 24, 2012 report, Dr. Reeves, an attending podiatrist, diagnosed dermatophytosis of
the feet, bilateral flatfoot deformities, bilateral hallux valgus, and bilateral osteochondritis of the
ankles. He noted that he had only treated appellant for severe dermatophytosis which created a
severe hyperkeratotic film that spanned the entire plantar aspect of his feet that was deep and
hardened and required periodic paring. Dr. Reeves opined that appellant’s job duties, including
increased standing, caused the hyperkeratosis to build up and increased osteochondritis pain.
A hearing was held on October 1, 2012 regarding appellant’s recurrence claim.
Appellant testified that he stopped work in November 2010 because his feet became worse.
In a November 28, 2012 decision, an OWCP hearing representative affirmed the June 8,
2012 decision finding that the weight of the medical evidence rested with Dr. Holladay’s
opinion.
On October 7, 2013 appellant, through counsel, requested reconsideration of the
November 28, 2012 decision. He submitted a March 20, 2013 report in which Dr. Reeves,
appellant’s podiatrist, noted that he had treated appellant regularly since 2008 for a severe
hyperkeratotic formation of the plantar aspect of both feet and that he also suffered from
osteochondritis dissecans of both ankles. Dr. Reeves noted that appellant stopped work due to
his foot and ankle ailments because job duties of standing and walking exacerbated both
conditions.
In a merit decision dated May 29, 2014, OWCP denied appellant’s claim that he
sustained a recurrence of disability on November 19, 2010 or that the claim should be expanded
to include aggravation of an underlying medical condition. Appellant thereafter appealed to the
Board. By order dated October 31, 2014, the Board dismissed the appeal at appellant’s request.8

8

Docket No. 14-1806 (issued October 31, 2014).

7

Appellant again requested reconsideration with OWCP on November 5, 2014. He
submitted a September 22, 2014 report in which Dr. Reeves noted that appellant’s hyperkeratotic
foot condition was aggravated by his job duties of walking and standing on a hard surface which
stimulated his feet. Dr. Reeves described appellant’s treatment and concluded that his work
activity contributed to his eventual disability because it caused an exacerbation of his underlying
pathology.
In a merit decision dated February 3, 2015, OWCP denied modification of the prior
decisions, finding that appellant did not meet his burden of proof to establish a recurrence of
disability on November 19, 2010 because the medical evidence did not establish that the
accepted conditions had worsened or that his claim should be expanded to include an aggravation
of an underlying medical condition.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.9
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.12
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.13

9

20 C.F.R. § 10.115(e),(f); see Jacquelyn L. Oliver, 48 ECAB 232-36 (1996).

10

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

11

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

12

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

13

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see Charles W. Downey,
54 ECAB 421 (2003).

8

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision as to whether appellant’s
preexisting foot conditions were aggravated by his work duties as a mail handler/Mark II
operator. Appellant stopped work on November 19, 2010 and filed a recurrence claim.
The accepted conditions under OWCP File No. xxxxxx990 was bilateral hallux valgus
(acquired). Under File No. xxxxxx687, the claim was accepted for other disorders of joint,
ankle, and foot, bilateral; and aggravation of osteochondritis dissecans, ankle and foot, bilateral.
The two claims were combined in March 2010. Appellant also had preexisting severe
dermatophytosis of both feet and flattened arches that were service related and for which he
received VA disability compensation. Other specific foot conditions not accepted included talar
dome lesion/osteochondritis lesions, and bilateral degenerative joint disease of the feet.
As reported by the employing establishment, appellant began work there in 1980 and had
been a Mark II machine operator for approximately 22 years when he stopped work in
November 2010. The Mark II machine canceled mail by sending it onto a track with four bins.
The operator would then pull the mail from the bins, place it into a two-foot tray, and would also
clear jams and restart the machine. The physical requirements involved prolonged standing,
walking, bending, reaching, and handling heavy containers weighing up to 70 pounds.14
In its February 3, 2015 decision, OWCP found that the weight of the medical evidence
rested with Dr. Holladay who provided second opinion evaluations. The Board finds, however,
that a conflict in the medical evidence exists with respect to whether any of appellant’s
diagnosed foot conditions were aggravated by his work duties.
As a preliminary matter, the Board finds that further definition is required regarding the
accepted “other disorders of joint, ankle, and foot, bilateral.” It is unclear exactly what
conditions have been accepted, and because appellant has preexisting and service-related foot
conditions, it is important that specific accepted conditions be defined.
Appellant submitted numerous reports from his doctors describing bilateral foot and
ankle conditions. Dr. York, a VA family physician, advised on February 23, 2008 that appellant
had foot x-ray findings of degenerative joint disease which were likely caused by his 30-year
history of standing on his feet at work. In May 2011, she noted appellant’s complaint of chronic
foot and ankle pain, painful ankle range of motion, and pes planus. Dr. York advised that his
foot and ankle conditions were a direct result of his job duties. She concluded that appellant
could not be on his feet for more than five minutes at a time and could never return to work.
Dr. Sharma, an attending physiatrist, first advised in August 2009 that constant standing
caused appellant’s degenerative arthritis of the feet and severe hyperkeratotic plantar lesions.
She reiterated this opinion on October 3, 2011.
Dr. Welker, an attending podiatrist, advised on September 21, 2012 that appellant had
been his patient since 2002 with diagnoses of severe plantar keratosis involving the soles of both
14

Supra note 7.

9

feet, onychomycosis of all toenails, and degenerative joint disease of both feet. He noted that
appellant’s work involved prolonged standing which worsened the painful keratosis.
Dr. Reeves, also an attending podiatrist, submitted reports dated June 27, 2011,
September 24, 2012, March 20, 2013, and September 22, 2014. He reported that he had treated
appellant regularly since 2008 and diagnosed dermatophytosis of the feet, bilateral flatfoot
deformities, bilateral hallux valgus, and bilateral osteochondritis of both ankles. Dr. Reeves
noted that appellant’s severe dermatophytosis created a severe hyperkeratotic film that spanned
the entire plantar aspect of his feet, was deep and hardened, and required periodic paring. He
opined that appellant’s job duties of prolonged standing, walking, stooping, and bending caused
the hyperkeratosis to build up, and increased osteochondritis pain, which aggravated his
underlying pathology and contributed to his eventual disability.
OWCP referred appellant to Dr. Holladay, a Board-certified orthopedic surgeon, in 2011
and 2012, and the physician provided reports on September 13, 2011 and May 24, 2012. In the
2011 report, Dr. Holladay diagnosed dermatophytosis of the feet, bilateral flat foot deformity,
degenerative joint disease of both feet, and anxiety/depression. He noted that these were not
accepted conditions. Dr. Holladay concluded that, based upon his review of the available
medical records, clinical examination, and history, appellant’s bilateral foot and ankle conditions
did not worsen to the point of total disability on November 19, 2010, finding that his current foot
and ankle conditions were more likely related to his underlying preexisting conditions and had
no relationship to a specific work injury. In his May 24, 2012 report, Dr. Holladay discussed
evidence from both case records. He additionally diagnosed bilateral acquired hallux valgus, and
osteochondritis dissecans of both ankles. Dr. Holladay noted that the dermatophytosis was
service related and continued to be active, and that this dermatological condition caused
thickened calluses on the plantar aspect of both feet. He further noted that appellant additionally
had flatfoot deformities that were service related. Dr. Holladay opined that this condition
remained present and was likely the cause of appellant’s ongoing pain complaints. He advised
that the record contemporaneous with November 19, 2010 did not include objective evidence to
support that the accepted conditions of bilateral hallux valgus and osteochondritis dissecans had
progressed or showed clinical change such that they became totally disabling on that day or that
his work activities aggravated his service-related foot conditions such that on November 19,
2010 he was unable to work.
If there is disagreement between a physician for OWCP and the employee’s physician,
OWCP will appoint a third physician who shall make an examination.15 For a conflict to arise,
the opposing physician’s viewpoints must be of virtually equal weight and rationale.16 As noted
above, compensability should be extended to a subsequent injury or aggravation related in some
way to the primary injury.17

15

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

16

Darlene R. Kennedy, 57 ECAB 414 (2006).

17

Supra note 12.

10

A number of appellant’s physicians indicated that his keratotic foot condition that was
service related was aggravated by his job duties that required constant standing. Of particular
significance are the reports from June 2011 to September 2012 of Dr. Reeves, an attending
podiatrist. He began treating appellant in 2008 and opined that his serious service-related
condition was aggravated by prolonged standing at work which contributed to his eventual
disability. Likewise, both Dr. Sharma and Dr. Weller advised that prolonged standing at work
contributed to appellant’s foot/ankle condition and disability. As noted above, the position
appellant held for 22 years required prolonged standing.
Conversely, Dr. Holladay, an OWCP referral physician, while noting appellant’s
preexisting service-related conditions, advised in May 2012 that his work activities had not
aggravated his service-related foot conditions such that on November 19, 2010 he was unable to
work. The Board further notes that the SOAF provided to Dr. Holladay in his last examination
on May 24, 2012, did not indicate that aggravation of osteochondritis dissecans, ankle and foot,
bilateral, had been accepted. He clearly opined that there was no objective medical evidence to
demonstrate ongoing progressive changes of this diagnosed condition or that it remained active.
The Board finds the opinions of appellant’s physicians to be of equal weight with the
opinion of Dr. Holladay as to whether appellant’s service-related foot condition was aggravated
by his work duties, especially prolonged standing, and, if so, whether he became disabled on
November 19, 2010. The Board will set aside the February 3, 2015 decision and remand the case
for OWCP to refer appellant to an appropriate impartial medical specialist to resolve the conflict.
On remand OWCP shall prepare an updated SOAF covering both File Nos. xxxxxx990
and xxxxxx687 with accurate accepted conditions listed under each file. The SOAF should
include a description of appellant’s specific job duties, including physical requirements. OWCP
should then refer appellant, the case record, and the updated SOAF to an appropriate specialist,
for review of the case record for both case File Nos. xxxxxx990 and xxxxxx687. The impartial
specialist should be asked to provide a rationalized opinion as to whether appellant’s job duties
aggravated his preexisting service-related condition or any other preexisting foot or ankle
condition and whether this caused a recurrence of disability on November 19, 2010. After this
and such further development as it deems necessary, OWCP shall issue a de novo decision.18
In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

18

The Board notes that the record indicates that appellant’s retirement was approved effective September 19,
2011 and that he is receiving VA disability benefits for his service-related foot conditions. Appellant has also
received schedule award compensation for 13 percent impairment of each lower extremity. Section 8116 of FECA
limits the right of an employee to receive compensation. While an employee is receiving compensation, he or she
may not receive salary, pay, or remuneration of any type from the United States. This includes civilian retirement
pay, and also when OWCP has found that a disability was sustained in civilian federal employment and VA has held
that the same disability was caused by military service. 5 U.S.C. § 8116; see 20 C.F.R. § 10.421. When OWCP
discovers concurrent receipt, it must declare an overpayment of compensation and give the usual due process rights.
L.J., 59 ECAB 264 (2007).

11

CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant’s
preexisting foot conditions were aggravated by his work duties as a mail handler/Mark II
operator. A conflict in medical evidence has been created which requires further development of
the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the February 3, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: June 15, 2016
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________

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)
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)
)
)
)

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

Docket No. 06-1919
Issued: March 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 15, 2006 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated July 13, 2006 and a nonmerit decision dated
August 1, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
both the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has more than 11 percent impairment of his left
upper extremity for which he received a schedule award; and (2) whether the Office properly
denied his request for reconsideration in accordance with section 8128(a) of the Federal
Employees’ Compensation Act.1

1

5 U.S.C. §§ 8101-8193, § 8128(a).

FACTUAL HISTORY
On December 3, 2004 appellant, then a 62-year-old sack sorting machine operator, filed a
traumatic injury claim alleging that he injured his left shoulder on that date when he pulled a
heavy letter tray toward the induction belt. The Office accepted appellant’s claim for left
shoulder strain on February 8, 2005. It later accepted a complete rotator cuff tear.
Dr. Tod Northrup, an osteopath, performed an arthroscopic repair of a massive rotator
cuff tear in appellant’s left shoulder on March 3, 2005. He also performed an arthroscopic
subacromial decompression of the left shoulder with arthroscopic partial distal claviculectomy
and transcatheter therapy to the left shoulder.
Appellant requested a schedule award on January 19, 2006. In a report dated January 19,
2006, Dr. Northrup stated that appellant had reached maximum medical improvement. He found
that appellant had mild to moderate weakness with lifting in the front or side with mild weakness
in the scapular plane as well as weak external rotation. Dr. Northrup indicated that appellant had
stiffness reaching behind his back, adhesive capsulitis with an internal rotation deficit. He
concluded that appellant had four percent impairment to the whole person as a result of his left
shoulder condition.
The Office medical adviser reviewed the medical evidence on April 6, 2006 and indicated
that appellant reached maximum medical improvement on January 19, 2006. He reviewed
appellant’s March 3, 2005 surgeries and found that there was insufficient information regarding
appellant’s range of motion to calculate an impairment rating in accordance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment.2 The Office medical
adviser found that appellant was entitled to 10 percent impairment to his left upper extremity due
to the distal clavicle resection arthroscopy.3 He noted that additional medical evidence regarding
the extent of appellant’s loss of range of motion was required to combine this impairment rating
with the diagnosis-based estimate.
In a letter dated June 12, 2006, the Office requested that appellant secure additional
evidence from his physician regarding loss of range of motion to the left shoulder. In a report
dated June 26, 2006, Sean M. Powell, a physician’s assistant,4 addressed the extent of appellant’s
loss of internal rotation of his left shoulder. He stated that appellant lacked 10 degrees of
internal rotation and concluded that this was one percent impairment of the left shoulder. The
Office medical adviser reviewed this report on June 29, 2006 and concluded that appellant had
an additional one percent impairment of his left shoulder due to loss of internal rotation of 10
degrees. He concluded that appellant had 11 percent impairment of his left upper extremity.

2

A.M.A., Guides, 5th ed. (2000).

3

Id. at 506, Table 16-27.

4

A physician’s assistant does not meet the definition of a “physician” as set out in the Act. 5 U.S.C. § 8101(2).
This report is not medical evidence unless and until it is adopted by a physician. Allen C. Hundley, 53 ECAB 551,
554 (2002); Lyle E. Dayberry, 49 ECAB 369, 372 (1998).

2

By decision dated July 13, 2006, the Office granted appellant a schedule award for 11
percent impairment of his left upper extremity.
In a letter dated July 19, 2006, appellant stated that he had not been given an impairment
examination and that he disagreed with the amount of his schedule award. He alleged that he
could not raise his left arm above the shoulder and that he felt this represented a 50 percent
impairment to his left arm. Appellant requested reconsideration.
By decision dated August 1, 2006, the Office denied appellant’s request for
reconsideration of the merits on the grounds that he failed to submit relevant new evidence in
support of his request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act5 and its implementing regulation6 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, the Act 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.7 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.8
ANALYSIS -- ISSUE 1
Appellant’s physician, Dr. Northrup, an osteopath, opined that appellant had reached
maximum medical improvement on January 19, 2006. He indicated that appellant had weakness
in his left shoulder as well as loss of range of motion. However, Dr. Northrup did not provide
any specific figures in support of his conclusion that appellant was entitled to a schedule award
of four percent of the whole person due to his left shoulder impairments. No schedule award is
payable for a member, function or organ of the body that is not specified in the Act or in the
implementing regulations.9 Furthermore, a schedule award is not payable for an impairment of
the whole person.10 Appellant is therefore not entitled to a schedule award for impairment to the
whole person.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
9

Brent A. Barnes, 56 ECAB ___ (Docket No. 04-2025, issued February 15, 2005).

10

Id.

3

The Office medical adviser reviewed the medical evidence and noted that Dr. Northrup
had performed a distal clavicle arthroplasty on March 3, 2005. He properly found that this
surgery resulted in 10 percent impairment of appellant’s left shoulder.11 The Office medical
adviser noted that any loss of range of motion of appellant’s left shoulder could be combined
with the impairment for arthroplasty.12 On June 29, 2006 he adopted the report of the
physician’s assistant and found that a loss of internal rotation of 10 degrees entitled appellant to
an additional 1 percent impairment.13 The Office medical adviser properly combined appellant’s
impairment ratings to reach 11 percent impairment of the left upper extremity for schedule award
purposes.14 The evidence in the record supports that appellant has no more than 11 percent
impairment of his left upper extremity for which he received a schedule award.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,15 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.16 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.17
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the Office’s June 29, 2006 decision on
July 19, 2006. In his letter, he stated that he had not been given an impairment examination and
disagreed with the amount of his schedule award. Appellant alleged that he could not raise his
left arm above the shoulder and that he had a 50 percent impairment of his left arm.
Appellant’s statements do not address a legal argument or advance a point of law and
therefore fail to meet the first and second standards of the Office’s regulations. He has merely
stated his belief as a lay person that he has more than 11 percent impairment of his left arm and
is therefore entitled to a greater schedule award. Lay persons are not competent to render a
medical opinion.18 The relevant issue in this claim, whether appellant has more than 11 percent
11

A.M.A., Guides, 506, Table 16-27.

12

Id. at 505, section 16.7b, Arthroscopy.

13

A.M.A., Guides, 479, Figure 16-46.

14

Id. at 604, Combined Values Chart.

15

5 U.S.C. §§ 8101-8193, § 8128(a).

16

20 C.F.R. § 10.606(b)(2).

17

20 C.F.R. § 10.608(b).

18

Jaja K. Asaramo, 55 ECAB 200, 206 (2004).

4

impairment of his left upper extremity, is a medical question and must be resolved by the
submission of relevant medical evidence.19 Appellant did not submit any medical evidence
addressing the extent of his permanent impairment. He has failed to meet the third standard of
the Office’s regulations and the Office was not required to reopen his claim for further
consideration of the merits.
CONCLUSION
The Board finds that the medical evidence included in the record establishes that
appellant has no more than 11 percent impairment of his left upper extremity. The Board further
finds that appellant’s July 19, 2006 request for reconsideration was not sufficient to require the
Office to reopen his claim for consideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT August 1 and July 13, 2006 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 6, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

19

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF THE ARMY,
RECRUITING BATTALION, New Orleans, LA,
Employer
__________________________________________

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

Docket No. 08-217
Issued: August 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 22, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated July 5, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
Appellant, a 50-year-old supply technician, filed a Form CA-2 claim for benefits on
August 4, 2000, alleging emotional stress causally related to her employment factors. She asserted
that her condition developed because her supervisors made derogatory and insulting remarks in
front of her coworkers, which caused her embarrassment and humiliation.

In a February 22, 2006 report, Dr. Mark A. Harrington, Board-certified in family practice,
stated that appellant had complaints of anxiety and depression. He noted that she experienced
hopelessness, anhedonia, social withdrawal, fatigue, insomnia and low self-esteem, with no
suicidal ideation. Appellant had a previous history of generalized anxiety disorder. He diagnosed
anxiety disorder probably related to job stress.
In a statement received by the Office on May 9, 2006, appellant alleged that she had been
working in a two-person job until June 2005, when it was changed to a one-person job. She stated
that two people could not accomplish the mission. Appellant’s problems began when Charles
Bradsher, her immediate supervisor, arrived in June 2005 and continued through September 8,
2005 when she arrived at the Safe Haven location following Hurricane Katrina. She stated that her
stress increased after she lost her home during Hurricane Katrina. Appellant stated:
“Maj Franklin expressed to the staff that it’s [my] fault you don’t have supplies
sense [sic] she’s not here blame her. Mr. Bradsher putting me down in front of
other employees, I need to find another job. [He stated] you eat too much that’s
why you are sick. I had to get a written note from the Doctor to eat snacks during
the course of the day due to my diabetic condition. Maj Franklin yelling at me
giving me a direct order as if I was in the military. Mr. Bradsher referring to me
while speaking to Maj Franklin as their little package, humiliating me in front of
officers, recruiters and coworkers. This is just a few experiences I have
encountered. Only thing gave me relive [sic] was to stay away from the situation
until I gained my self esteem back. Every time I tried to return to work the same
thing [sic] just in a different tactic and approaches they would take.
“I have experienced sleepless nights, muscle spasm, blood pressure elevated, sugar
running abnormal, weight gain, hair loss, nervisness [sic] when I walk in the door at
work, resulting in panic attacks and anxiety. This has resulted in me missing over
300 hours of work. ... My health is failing due to the constant criticism from
Mr. Bradsher and Maj Franklin. I informed Mr. Bradsher I could not take much
more of this harassment and mental abuse from them….
“I had an episode where Mr. Bradsher was counseling me with our Human
Resource Mrs. Shirley Franklin. The situation got heated and I could not breath
[sic] and blacked out and Mr. Perkins came from across the hall picked me off
Mr. Bradsher’s office floor ... he and the other person did not render me aid. This
took place 4 April 2006.”
In a statement received by the Office on May 10, 2006, appellant made the following
allegations:
When I fell and injured her right hand on October 12, 2005, Mr. Bradsher told her
“I am not the one to give your sympathy, if you are looking for that.” She also
stated that, when she asked for the injury forms, she was told to look them up on
online;

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On November 7, 2005 she informed Mr. Bradsher that she had to leave to attend a
doctor’s appointment and had elevated blood pressure. Mr. Bradsher replied, in
front of her coworkers, that “you need to find another job; I can’t use you for this
mission because [you are] slow, always complaining.” He also stated civilians
were always in the wrong lane, always butting into the wrong thing, and he was
glad that he was not a civilian because civilians don’t know anything. Mr. Bradsher
asserted that he was a veteran and appellant was jealous because everybody she
worked with was a veteran; he stated that they would make her an honorary veteran
so she wouldn’t feel left out.” Appellant stated that she was embarrassed by
Mr. Bradsher’s comments;
On November 23 through 25, 2005 appellant requested funding for an awards
banquet but Mr. Bradsher never followed up with the necessary documents to have
the funding approved;
On November 30, 2005 Mr. Bradsher overloaded appellant with assignments when
she had just returned from a business trip and was trying to deal with the loss of her
home;
On December 1, 2005 appellant had ordered supplies for a recruiting trip when
Mr. Bradsher returned from a business trip and again told her she needed to find
another job;
On December 7 and 8, 2005 Mr. Bradsher again made insulting and demeaning
remarks in front of her coworkers, once again causing her embarrassment and
humiliation;
On December 9, 2005 appellant was working to provide supplies and drinks for
recruiters on a business trip when a supply sergeant told her he had forgotten to buy
drinks for the meetings. After she told the sergeant she would get the drinks from a
nearby Wal-Mart, Major Franklin, the base commanding officer, called her a few
hours later and screamed at her that he had given her a direct order to get the drinks.
Appellant burst into tears, was shaking, and again experienced humiliation,
embarrassment and degradation in front of her coworkers.
Appellant referenced several other incidents from December 2005 to February 2006 in
which she allegedly encountered resistance in obtaining forms and sick leave to deal with her
diabetes and her burgeoning emotional condition.
By decision dated August 30, 2006, the Office denied appellant’s emotional condition
claim. It found that appellant had established three compensable factors of employment: the
September 2005 staff meeting in which Major Franklin stated that other employees should be
angry at her; the December 2005 incident in which Major Franklin made insulting remarks
toward her in front of her coworkers; and the November 2005 incident in which Mr. Bradsher
stated she needed to find another job and that as a civilian she knew nothing. The Office,
however, that the medical evidence of record did not establish that her claimed emotional

3

condition was causally related to the accepted employment factor. It stated that the medical
evidence appellant had submitted was not sufficient to establish that she had sustained her
emotional condition in the performance of duty.
On September 29, 2006 appellant requested an oral hearing, which was held on
May 4, 2007.
In a May 29, 2007 report, Dr. Gerald M. Barber, Board-certified in family practice, stated:
“I first saw [appellant] on August 14, 2006 when a history was taken of her past
medical problems. This did include her injury at [the employing establishment] on
March 15, 2006.... I am aware of her depression which she states resulted from the
‘on the job’ problems. I have read her account of the harassment she feels she is
receiving from superiors and coworkers on the job. This is obviously not my job to
determine the facts of the alleged abuses on the job. As a family doctor for
[appellant], I can report she is constantly agitated, stressed, unhappy and on
medication for depression and anxiety. When asked about the cause of her
depression and anxiety, she states she had none of these before her current ‘job
problems.’ I do feel her stress is obviously negatively affecting her overall health -blood pressure, diabetes, neck pain, etc. This is all I can factually attest. I will
leave it up to the Labor Department to investigate this patient’s alleged ‘on the job’
abuse and harassment.” (Emphasis in the original.)
By decision dated July 5, 2007, an Office hearing representative affirmed the August 30,
2006 decision.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty, there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.1 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.2
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to her alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Act.3 On the
other hand, disability is not covered where it results from an employee’s fear of a reduction-inforce, frustration from not being permitted to work in a particular environment or to hold a
1

See Debbie J. Hobbs, 43 ECAB 135 (1991).

2

See Ruth C. Borden, 43 ECAB 146 (1991).

3

Lillian Cutler, 28 ECAB 125 (1976).

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particular position, or to secure a promotion. Disabling conditions resulting from an employee’s
feeling of job insecurity or the desire for a different job do not constitute a personal injury
sustained while in the performance of duty within the meaning of the Act.4
ANALYSIS
In the instant case, the Office accepted three incidents as compensable: the
September 2005 staff meeting in which Major Franklin stated that other employees should be
angry at her; the December 2005 incident in which Major Franklin made insulting remarks
toward her in front of her coworkers; and the November 2005 incident in which Mr. Bradsher
stated she needed to find another job and that as a civilian she knew nothing. The Board finds
that, given the circumstances described by appellant and accepted as factual by the Office, these
three incidents constitute compensable factors of employment.5
However, appellant’s burden of proof is not discharged by the fact that she has established
employment factors which may give rise to a compensable disability under the Act. To establish
her occupational disease claim for an emotional condition, appellant must also submit rationalized
medical evidence establishing that she has an emotional or psychiatric disorder and that such
disorder is causally related to the accepted compensable employment factors.6 Appellant
submitted the February 22, 2006 report from Dr. Harrington and the May 29, 2007 report from
Dr. Barber. Neither of these reports, however, contained a rationalized medical opinion, based
on a proper factual and medical background, containing an opinion on causal relationship or
otherwise relating her diagnosis to the factors found compensable in this case. The weight of
medical opinion is determined by the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts of the case, the medical
history provided, the care of analysis manifested and the medical rationale expressed in support
of stated conclusions.7 Dr. Harrington does not provide a complete factual background or
provide an opinion relating appellant’s accepted employment incidents as causative factors to her
diagnosed emotional condition. Although he presented diagnoses of appellant’s condition, he
did not adequately address how these conditions were causally related to the accepted
employment factors. Dr. Harrington noted a previous history of generalized anxiety disorder,
stated that appellant had complaints of anxiety and depression and diagnosed anxiety disorder,
probably related to job stress. He related complaints of hopelessness, anhedonia, social
withdrawal, fatigue, insomnia and low self-esteem, with no suicidal intentions. Dr. Harrington’s
report, however, merely presented a summary conclusion that appellant’s conditions were
causally related to the accepted employment factors.
Dr. Barber noted a history of depression and anxiety which appellant felt was caused by
problems at work. He stated that appellant was constantly agitated, stressed, unhappy and on
4

Id.

5

Mary J. Summers, 55 ECAB 730 (2004).

6

See William P. George, 43 ECAB 1159, 1168 (1992).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

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medication for depression and anxiety. Although Dr. Barber asserted that her stress had a negative
affect upon her overall health and aggravated her conditions of blood pressure, diabetes and neck
pain, he declined to provide an opinion regarding whether the alleged on-the-job abuse and
harassment was responsible for her worsening physical and mental condition. He noted that
appellant believed she was being harassed by superiors and coworkers on the job, but stated that it
was not his job to determine the facts of any alleged abuses at work. There is therefore
insufficient rationalized evidence in the record that appellant’s emotional condition was work
related.
For these reasons, the Board finds that appellant did not submit sufficient medical
evidence to establish that she sustained an emotional condition causally related to her
compensable work factors.
As to the other allegations raised, the Board finds that appellant has submitted
insufficient evidence to establish compensable factors of employment. An employee’s emotional
reaction to an administrative or personnel matter is not covered under the Act, unless there is
evidence that the employing establishment acted unreasonably.8 In the instant case, appellant
has presented no evidence that the employing establishment acted unreasonably or committed
error with regard to the incidents of alleged unreasonable actions involving administrative or
personnel matters on the part of the employing establishment. The Board has held that an
employee’s dissatisfaction with perceived poor management constitutes frustration from not
being permitted to work in a particular environment or to hold a particular position and is not
compensable under the Act.9 Appellant has not submitted sufficient evidence to support her
allegations that the employing establishment ignored her requests for assistance, gave her
incorrect and contradictory instructions, imposed an unusually heavy work load and issued
unreasonable deadlines.
Regarding appellant’s allegation that she developed stress due to the uncertainty of her
job duties and her insecurity about maintaining her position, the Board has previously held that a
claimant’s job insecurity is not a compensable factor of employment under the Act.10 The Board
notes that matters pertaining to use of leave and overtime are generally not covered under the Act
as they pertain to administrative actions of the employing establishment and not to the regular or
specially assigned duties the employee was hired to perform.11 However, error or abuse by the
employing establishment in an administrative or personnel matter, or evidence that the
employing establishment acted unreasonably in the administrative or personnel matter, may
afford coverage.12 As appellant has failed to show that these actions demonstrated error or abuse
on the part of management, they are not compensable. Accordingly, appellant has presented no
evidence that the employing establishment acted unreasonably or committed error with regard to
8

See Alfred Arts, 45 ECAB 530, 543-44 (1994).

9

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

10

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

11

Elizabeth Pinero, 46 ECAB 123 (1994).

12

Margreate Lublin, 44 ECAB 945 (1993).

6

these incidents of administrative managerial functions. A reaction to such factors did not
constitute an injury arising within the performance of duty; such personnel matters were not
compensable factors of employment in the absence of agency error or abuse.
Accordingly, the Board affirms the July 5, 2007 decision of the Office hearing
representative, which properly affirmed the August 30, 2006 decision denying compensation for
an alleged emotional condition.
CONCLUSION
The Board finds that the Office properly found that appellant failed to meet her burden of
proof to establish that she sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 5, 2007 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: August 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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