United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
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DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Washington, DC, Employer )
__________________________________________ )
B.S., Appellant

Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-507
Issued: July 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 5, 2012 appellant, through his attorney, filed a timely appeal from an
August 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to
disability compensation for the period May 13 to August 17, 2010.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence after OWCP issued its August 16, 2011 decision. The
Board lacks jurisdiction to review evidence for the first time on appeal. Appellant may submit new evidence or
argument as part of a formal written request for reconsideration to OWCP within one year of this merit decision,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

FACTUAL HISTORY
On March 7, 2007 appellant, then a 46-year-old transportation security officer, sustained
lower back pain while lifting bags in the performance of duty. OWCP accepted his traumatic
injury claim for lumbar sprain. Appellant did not stop work but returned to work with a lifting
restriction until he was released to full duty on March 27, 2007.
A March 20, 2007 magnetic resonance imaging (MRI) scan from Dr. Scot A. LeBolt, a
Board-certified diagnostic radiologist, demonstrated mild lumbar spondylosis, degenerative
spurring and disc protrusions. A November 17, 2008 progress report from a physician’s assistant
indicated that appellant had presented for a November 14, 2008 back injury3 but his thoracic and
low back pain had resolved and he returned to regular duty.
Appellant filed a claim for disability compensation for the period May 13 to
August 17, 2010 and submitted medical evidence.4 Dr. Liesl A. Curtis, a Board-certified
emergency physician, indicated in July 30, 2010 hospital records that appellant experienced
chronic back pain and diagnosed back spasm. In an August 10, 2010 report, Dr. Charles J.
Azzam, a Board-certified neurological surgeon, advised that appellant remained symptomatic
following a March 7, 2010 low back injury incurred while lifting bags at work. He stated that
appellant’s symptoms lasted about a month and then resolved. Dr. Azzam stated that, in late
April, appellant was returning from travel in Thailand and had worsening back pain. On
examination, he observed limited range of motion (ROM) of the spine and a positive seated
straight leg raise test. Dr. Azzam diagnosed lumbar radiculopathy.
August 13, 2010 x-rays obtained by Dr. Robert A. Olshaker, a Board-certified diagnostic
radiologist, exhibited mild degenerative lumbar changes as well as grade 1 retrolisthesis at L1-2,
L2-3 and L3-4. An August 16, 2010 MRI scan conducted by Dr. Robert S. Isaacs, a
Board-certified diagnostic radiologist, showed degenerative facet joints and minor L3-4 and L4-5
disc bulges. Dr. Azzam noted these findings in an August 19, 2010 addendum.5
OWCP informed appellant in a September 25, 2010 letter that further evidence was
needed to establish his claim. It gave him 30 days to submit a rationalized medical report from a
qualified physician explaining how his 2007 accepted lumbar sprain rendered him unable to
perform his federal employment from May 13 to August 17, 2010.
Appellant submitted the May 13, 2010 x-rays from Dr. Robert A. Ferris, a
Board-certified radiologist. Testing revealed minimal degenerative changes most prominently at
L3-4 and L4-5 while a May 25, 2010 lumbosacral MRI scan from Dr. Abida Nasreen, a
Board-certified diagnostic radiologist, confirmed multilevel circumferential disc bulges.
In May 21 and 28, 2010 reports, Dr. Tracie F. Hata, a Board-certified family practitioner,
related that appellant had preexisting lower back pain that was triggered when he lifted luggage
3

There is no claim involving a November 14, 2008 injury that is before the Board on the present appeal.

4

Appellant later filed separate compensation claims for the combined period August 17 to November 20, 2010.

5

Appellant also submitted a nurse practitioner’s August 31, 2010 physical therapy referral note.

2

on the job. On examination, she observed lumbar paraspinal muscle tenderness, pain during
flexion and extension maneuvers and the absence of Achilles reflexes. Dr. Hata diagnosed lower
back pain, degenerative disc disease and disc protrusion. Dr. Steven C. Scherping, Jr., a
Board-certified orthopedic surgeon, commented in a June 1, 2010 report that appellant
intermittently experienced lower back pain that radiated to the lower extremities. He evaluated
appellant and observed lumbar paraspinal gutter tenderness and limited ROM. Dr. Scherping
diagnosed “age appropriate” lumbar disc degeneration, spondylosis and chronic lower back pain.
In a July 15, 2010 report, Dr. Paul J. Millea, a Board-certified family practitioner,
remarked that appellant sustained a work-related injury due to heavy lifting. On examination, he
noted flattening of cervical and lumbar lordosis, thoracic kyphosis, spinous process tenderness,
limited lumbar range of motion, poor trunk rotation, antalgic gait and shortening of the thoracic
and thoracolumbar paraspinal, iliopsoas, quadriceps and hamstring muscles. Dr. Millea
diagnosed lower back pain and dorsalgia. In a July 29, 2010 report, Dr. Spencer T. Tseng, a
Board-certified physiatrist, specified that appellant was transporting luggage in 2007 when his
back locked up. He evaluated appellant and found thoracic and lumbar paraspinal, adductor and
gluteal muscle tightness as well as diminished ROM. Dr. Tseng diagnosed thoracic and lumbar
pain on account of muscle spasms.
Dr. Thomas G. Andros, a Board-certified anesthesiologist, found bilateral lumbar
tenderness and decreased ROM on examination and diagnosed lumbar spondylosis in a series of
progress notes for the period September 8 to October 7, 2010.6 In an October 5, 2010 report,
Dr. Azzam opined, “[appellant] was unable to work from August 10 to 19, 2010. [Appellant’s]
current disability is causally related to his work injury.” Dr. Azzam added in an October 14,
2010 addendum that appellant’s neurological signs were stable.
In an October 18, 2010 report, Dr. Robert H. Kitchen, Jr., a Board-certified family
practitioner, restated appellant’s account that he experienced debilitating pain stemming from the
March 7, 2007 employment incident whenever he engaged in an activity beyond five minutes
and was totally disabled since May 15, 2010.
OWCP referred appellant for a second opinion examination to Dr. Robert A. Smith, a
Board-certified orthopedic surgeon. In a November 15, 2010 report, Dr. Smith reviewed the
October 27, 2010 statement of accepted facts and medical file. He pointed out that the
radiological evidence confirmed age-related degenerative disease as early as 2007. On
examination, Dr. Smith noted self-limited ROM during active maneuvers due to pain, but did not
observe any objective findings of spasms, atrophy, trigger points, rigidity or deformity. The
neurological evaluation was likewise normal. Dr. Smith diagnosed resolved lumbar strain. He
opined that appellant’s symptoms were “[m]ore likely than not ... related to his nonindustrial
degenerative disease which is neither caused, accelerated, precipitated or aggravated by the work
incident of March 7, 2007.” Dr. Smith concluded that appellant was not disabled as a result of
his accepted lumbar condition.

6

The case record indicates that Dr. Andros administered epidural steroid injections.

3

By decision dated December 9, 2010, OWCP denied appellant’s compensation claim,
finding that the medical evidence did not sufficiently establish total disability for the period
May 13 to August 17, 2010.
Counsel requested a review of the written record on April 25, 2011 and submitted new
evidence. In a January 7, 2011 report, Dr. Vandana R. Sharma, a Board-certified neurologist,
advised that appellant complained of lower back pain resulting from the March 7, 2007
employment incident. On examination, she observed limited cervical ROM, bilateral lower
extremity muscle pain, diminished sensation to light touch, pinprick and temperature and a
positive bilateral straight leg raise test. Dr. Sharma diagnosed lumbosacral strain syndrome and
bilateral lower extremity pain and paresthesia. A January 21, 2011 electromyogram and nerve
conduction study suggested bilateral lumbosacral radiculopathy.7
In a February 4, 2011 report, Dr. Sharma reexamined appellant, found lumbar paraspinal
tenderness and a positive left straight leg raise test and diagnosed lumbosacral strain syndrome,
radiculopathy and bilateral lower extremity pain and paresthesia. She concluded, “He is unfit to
return to work at this time.” Dr. Sharma elaborated in a February 9, 2011 health care provider
certification form that appellant could not perform his normal job functions because his
symptoms prevented him from lifting heavy objects and prolonged sitting or standing. She
checked the “yes” box indicating that he was incapacitated for a single continuous period of time
due to his medical condition, but did not provide beginning and ending dates. Follow-up reports
from Dr. Sharma for the period February 18 to May 20, 2011 detailed that appellant exacerbated
his lower back and bilateral lower extremity condition on February 21, 2011 and was “unfit to
return to work at this time.” In June 10 and July 15, 2011 reports, she noted that he aggravated
his condition again on June 8, 2011 and recommended that he “look for alternative work in
which he can shift positions, no lifting, bending or driving.”8
On August 16, 2011 OWCP’s hearing representative affirmed the December 9, 2010
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative and substantial medical opinion evidence.9 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
7

The case record contains a January 11, 2011 report from Dr. David M. Sack, an employing establishment
physician Board-certified in occupational medicine. At the time of his report, Dr. Sack emphasized that there was
no medical evidence of substantial nerve root impingement indicative of radiculopathy.
8

Appellant also submitted a May 27, 2011 functional capacity evaluation report, which concluded that he was
unable to meet the medium-to-high physical demand level of his job. The report contained an illegible signature.
9

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

4

medical rationale, showing how the injury caused the employee disability for his or her particular
work.10
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.11 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.12
ANALYSIS
OWCP accepted that appellant sustained lumbar strain as a result of the March 7, 2007
traumatic injury in the performance of duty. He was released to regular duty on March 20, 2007.
Appellant filed a claim for disability compensation and submitted medical evidence.
The Board finds that appellant did not establish his entitlement to disability compensation
for the period May 13 to August 17, 2010. The weight of the medical evidence does not
sufficiently establish that he was disabled for the claimed period due to his accepted condition.
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.13
OWCP referred appellant to Dr. Smith. In his November 15, 2010 report, Dr. Smith
conducted a thorough physical examination and assessed both the October 27, 2010 statement of
accepted facts and medical file. He observed the absence of spasms, atrophy, trigger points,
rigidity, deformity and neurological symptoms, which led him to conclude that the accepted
lumbar strain resolved. Dr. Smith also pointed out that the radiological evidence, namely
Dr. LeBolt’s March 20, 2007 MRI scan, corroborated age-related degenerative disease, to which
any lingering symptoms could be attributed. He concluded that appellant was not rendered
unable to perform his regular employment as a result of his accepted lumbar condition.
Appellant furnished numerous medical records. Dr. Azzam remarked in an October 5,
2010 report that appellant was disabled from August 10 to 19, 2010 as a result of his accepted
work injury. A subsequent October 18, 2010 report from Dr. Kitchen listed May 15, 2010 as the
start of the period of total disability. Dr. Sharma opined that appellant was unfit to return to
regular work in several reports, explaining in a February 9, 2011 health care provider
certification form that his symptoms prevented him from lifting heavy objects and sitting or
standing for long durations. She also checked the “yes” box indicating that he was disabled, but
did not provide dates. Although Drs. Azzam, Kitchen and Sharma generally found total
10

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

11

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

12

Jefferson, supra note 9.

13

I.R., Docket No. 09-1229 (issued February 24, 2010); James Mack, 43 ECAB 321, 329 (1991).

5

disability, none of the physicians presented medical rationale setting forth the pathophysiological
mechanism by which appellant’s accepted March 7, 2007 lumbar strain rendered him unable to
perform his regular employment.14 Medical reports consisting solely of conclusory statements
without supporting rationale are of diminished probative value.15 While appellant explicitly
identified May 13 to August 17, 2010 as the period of disability, Drs. Azzam, Kitchen and
Sharma did not specify these particular dates.16
Various reports from Drs. Andros, Curtis, Hata, Millea, Scherping and Tseng were of
limited probative value because none offered an opinion as to whether the accepted lumbar
condition led to appellant’s disability for the claimed period.17
Other submitted evidence lacked evidentiary weight. As noted, whether an accepted
condition causes an employee to become disabled for work and the duration of that disability are
medical issues that can only be resolved through the submission of probative medical evidence
from a physician. The May 27, 2011 functional capacity evaluation report cannot constitute
competent medical evidence because one cannot determine whether the illegible signature
therein belonged to a qualified physician.18 Finally, since a nurse practitioner is not a
“physician” as defined under FECA, the August 31, 2010 referral note lacked probative value.19
Given that appellant failed to meet his burden of proof, OWCP properly denied his compensation
claim.
Counsel argues on appeal that the medical evidence sufficiently established appellant’s
entitlement to disability compensation for the period May 13 to August 17, 2010. The Board has
already addressed the deficiencies of the claim. Alternatively, counsel contends that appellant
applied for disability retirement without controversion by the employing establishment and is
therefore ipso facto disabled for the purposes of FECA. Assuming, arguendo, that he is eligible
for such benefits, the Board has held that entitlement to benefits under one statute does not
establish entitlement to benefits under another. A finding of disability retirement under the
Social Security Act, for instance, does not prove physical disability or impairment under
FECA.20

14

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

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

16

M.F., Docket No. 08-1927 (issued April 16, 2009). Dr. Azzam also appeared to have an incorrect history of
injury as he indicated that appellant injury occurred on March 7, 2010. See Leonard J. O’Keefe, 14 ECAB 42, 48
(1962) (where the Board held that medical opinions based upon an incomplete history have little probative value).
17

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

18

See R.M., 59 ECAB 690, 693 (2008) (medical reports lacking proper identification do not constitute probative
medical evidence).
19

5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004).

20

James E. Norris, 52 ECAB 93 (2000); Hazelee K. Anderson, 37 ECAB 277 (1986).

6

CONCLUSION
The Board finds that appellant did not establish that he is entitled to disability
compensation for the period August 17 to May 13, 2010.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2011 decision of the Office of
Workers’ Compensation Programs affirmed.
Issued: July 26, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
HEALTH CLINIC, Schweinfurt, Germany,
Employer
__________________________________________

)
)
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)
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)
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)

Appearances:
Brett Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1919
Issued: January 21, 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 September 21, 2015 appellant, through counsel, filed a timely appeal from an
April 29, 2015 merit decision and a September 9, 2015 nonmerit 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 has more than three percent left leg permanent
impairment, for which he received a schedule award on April 29, 2015; and (2) whether OWCP
properly denied a request for reconsideration without merit review of the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 3, 2013 appellant, then a 66-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that on December 11, 2012 he sustained a left knee injury in the
performance of duty. He indicated that twice he slipped on ice in the employing establishment
parking lot. There is no indication that appellant stopped work or received wage-loss
compensation. In an attending physician’s form report (Form CA-20) dated January 10, 2013, a
physician noted a history of the December 11, 2012 incidents and diagnosed left knee
degeneration.2
The record indicates that appellant underwent a left knee magnetic resonance imaging
(MRI) scan on April 10, 2013. In a report of that date Dr. Knut Eberhardt, a radiologist,
indicated that the results showed arthrosis of the medial compartment, “after former
meniscectomy degeneration of the posterior horn,” focal cartilage lesion of the lateral femoral
condyle, “after partial tear of the [acromioclavicular ligament] with a secondary atrophy of the
ligament,” signs of arthrosis of the patellar bone, and joint effusion.
In a report dated November 14, 2013, Dr. Stefan Reinsdorf, an orthopedic surgeon,
reported that the April 10, 2013 MRI scan showed joint effusion, a meniscus tear in the
dorsal/posterior part of the lateral meniscus, and a cartilage lesion. He indicated that appellant
needed arthroscopic surgery and removal of the damaged meniscus and cartilage. On
January 24, 2014 OWCP accepted the claim for a left knee medial meniscus tear.
Appellant underwent left knee surgery on March 24, 2014. The record does not contain a
copy of the surgical report.
On February 2, 2015 OWCP received a claim for compensation (Form CA-7) indicating
that appellant was claiming a schedule award. In support of his claim, appellant submitted a
December 4, 2014 report from Dr. Jacob Tauber, a Board-certified orthopedic surgeon.
Dr. Tauber provided a history and results on examination. He reported that x-rays of the left
knee revealed tricompartmental arthritis and a collapse of the medial compartment. Dr. Tauber
opined that under Table 16-3 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (sixth edition), appellant had 50 percent permanent
impairment of the left leg based on severe arthritis and no cartilage interval.
OWCP referred the medical record to Dr. Leonard Simpson, an OWCP medical adviser,
for review. In a report dated March 28, 2015, Dr. Simpson opined that the left leg impairment
for the accepted meniscal injury was three percent under Table 16-3. He noted that there was no
indication that OWCP had accepted left knee osteoarthritis. The medical adviser further noted
that the net adjustment under Table 16-3 for the meniscal injury resulted in a grade E impairment
of three percent. Dr. Simpson noted that, if OWCP were to accept left knee osteoarthritis as
employment related, the impairment would be 50 percent. The date of maximum medical
improvement was reported as December 4, 2014.

2

The signature of the physician is illegible.

2

By decision dated April 29, 2015, OWCP issued a schedule award for three percent
permanent impairment of the left leg. The period of the award was 8.64 weeks commencing
December 4, 2014.
On June 15, 2015 appellant, through counsel, requested reconsideration. He argued that
OWCP should consider preexisting conditions in a schedule award. On July 7, 2015 appellant
submitted a June 18, 2015 report from Dr. Tauber, who noted his prior examination of appellant
on December 4, 2014 and his impairment rating. Dr. Tauber diagnosed degenerative arthritis of
the left knee. He opined that the “arthritis was clearly permanently aggravated by the incident of
December 11, 2012.” Dr. Tauber also indicated that appellant’s repetitive job activities
contributed to his arthritis as well. He concluded that his prior opinions remained unchanged. In
a report dated June 15, 2015, Dr. Reinsdorf opined that the impairment rating of three percent
was too low since over the years there had been more or less constantly arthritis of the knee.
By decision dated September 9, 2015, OWCP found that the evidence was insufficient to
warrant merit review of the claim. It indicated that osteoarthritis had not been accepted as
employment related.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
With respect to a knee impairment, the A.M.A., Guides provide a regional grid at Table
16-3. The class of impairment Class of Diagnosis (CDX) is determined based on specific
diagnosis, and then the default value for the identified CDX is determined. The default value
(grade C) may be adjusted by using grade modifiers for Functional History (GMFH), Table 16-6,
Physical Examination (GMPE), Table 16-7, and Clinical Studies (GMCS), Table 16-8. The
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6 The permanent
impairment must be causally related to an accepted employment injury.7
3

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

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

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
6

The net adjustment is up to +2 (grade E) or -2 (grade A).

7

Rosa Whitfield Swain, 38 ECAB 368 (1987).

3

ANALYSIS -- ISSUE 1
In the present case, OWCP issued a schedule award for three percent permanent
impairment of the left leg on April 29, 2015. An attending physician, Dr. Tauber, had opined in
a December 4, 2014 report that appellant had 50 percent impairment based on a diagnosis of
severe left knee arthritis, but Dr. Tauber did not provide a history of the diagnosed arthritis
condition or offer an opinion as to the relationship between the arthritis condition and the
December 11, 2012 employment injury. The employment incidents were two slip and falls on
ice, and the accepted condition was a torn medial meniscus of the left knee. As noted above, the
permanent impairment must be causally related to the employment injury.
Under Table 16-3, for a meniscal injury with a partial meniscectomy, it is CDX 1
impairment and the default (grade C) impairment is two percent. Applying the grade modifiers
noted above, the medical adviser found a GMFH 2, GMPE 3, and GMCS 3. Applying the
adjustment formula results in +5, or the maximum adjustment of grade E. Under Table 16-3, this
is three percent leg impairment.
The Board finds that OWCP properly found that appellant had three percent permanent
impairment to his left leg. Based on the probative evidence that was before OWCP as of
April 29, 2015, there was no evidence of a permanent impairment greater than three percent.
The maximum number of weeks for loss of use of the leg is 288 weeks under 5 U.S.C. § 8107(c).
Appellant properly received three percent of 288 weeks or 8.64 weeks of compensation. The
period covered by a schedule award commences on the date that the employee reaches maximum
medical improvement (MMI) from residuals of the employment injury.8 The date of MMI was
December 4, 2014, representing the date of Dr. Tauber’s examination and consistent with the
opinion of the medical adviser.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”10 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.11

8

Albert Valverde, 36 ECAB 233, 237 (1984).

9

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
10

20 C.F.R. § 10.606(b)(3).

11

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

4

ANALYSIS -- ISSUE 2
In the present case, appellant requested reconsideration of the April 29, 2015 decision.
Although a claimant may at any time seek an additional schedule award and receive a merit
decision,12 he did not submit medical evidence with new examination results showing an
increased impairment. Appellant submitted evidence and argued that the April 29, 2015 was
incorrect. OWCP properly determined that he was requesting reconsideration of the April 29,
2015 decision.
The Board finds that appellant has submitted new, relevant, and pertinent evidence on the
issue presented. As noted, no medical evidence had previously discussed causal relationship
between a diagnosed left knee arthritis condition and the employment injury. The June 18, 2015
report from Dr. Tauber provides, for the first time, an opinion that the condition was employment
related. This is clearly relevant to the schedule award decision. Dr. Tauber had previously
opined in his December 4, 2014 report that based on the arthritis appellant had 50 percent left leg
permanent impairment. Moreover, the medical adviser had acknowledged in his March 28, 2015
report that, if arthritis were to be accepted as employment related, there would be a greater
impairment.
In addition, Dr. Tauber’s June 18, 2015 report states that appellant’s arthritis condition
“was clearly permanently aggravated by the incident of December 11, 2012,” indicating that the
arthritis was a preexisting condition. OWCP procedures provide that impairment ratings for
schedule awards include those conditions accepted by OWCP as employment related, and any
preexisting permanent impairment of the same member or function. If the work-related injury
has affected any residual usefulness in whole or in part, a schedule award may be appropriate as
there is no apportionment.13
Appellant is entitled to a merit review as he submitted relevant and pertinent evidence an
argument previously considered by OWCP. The case will be remanded to OWCP for a proper
decision on the merits of the claim. OWCP should develop the evidence as necessary to properly
resolve the issues presented and issue a merit schedule award decision.
CONCLUSION
The Board finds that the April 29, 2015 properly found three percent impairment to the
left leg. The Board further finds that appellant submitted sufficient evidence to require a merit
review and the case is remanded to OWCP for a merit decision.

12

B.K., 59 ECAB 228 (2007).

13

Federal (FECA) Procedure Manual, Part 2, supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 29, 2015 is affirmed. The decision dated September 9,
2015 is set aside and the case is remanded for further action consistent with this decision of the
Board.
Issued: January 21, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-429
Issued: May 23, 2013

Case Submitted on the Record

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

JURISDICTION
On December 19, 2012 appellant filed a timely appeal from the August 17, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
compensation. 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 established that she sustained an employment-related
injury on June 19, 2012 as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 2, 2012 appellant, then a 45-year-old nurse, filed a traumatic injury claim
alleging upper back pain on June 19, 2012 after changing a resident’s diaper and removing linen
from underneath the resident.
By letter dated July 13, 2012, OWCP informed appellant that she must submit further
information in support of her claim. Appellant submitted a response, noting that she was
diagnosed with a lumbosacral/cervical strain on June 19, 2012. She described the incident and
noted that she was unable to return to work the next day.
In a June 28, 2012 work capacity evaluation, Dr. Xiaohong Si, a Board-certified
neurologist, stated that appellant complained of pain over her hip, neck, back and shoulder. In a
July 2, 2012 report, he noted that she informed him that she injured her back at work on
June 19, 2012. Dr. Si made a preliminary diagnosis of muscle strain and possible median
neuropathy; sciatica; lumbar stenosis and arthritis. He scheduled an x-ray and recommended that
appellant work four-hour light-duty shifts for two months. The record also contains July 12
and 16, 2012 reports signed by a nurse.
By letter dated August 1, 2012, the employing establishment controverted appellant’s
claim.
In an August 2, 2012 report, Dr. L. Alfred Norville, a chiropractor, stated that appellant
had reached maximum chiropractic improvement as of August 1, 2012. He noted that many soft
tissue injuries, such as those she experienced, were irreversible and required supportive
chiropractic care well into the future. In an August 3, 2012 form report, Dr. Norville described a
history that appellant was changing the diaper of a 400-pound patient and strained herself.
Appellant returned to work the next week and suffered an exacerbation. Dr. Norville diagnosed
cervical strain/sprain; thoracic strain/sprain; lumbar strain/sprain and myofascitis. He answered
a form question, “Is this condition solely a result of this accident?” by responding, “Yes.”
Dr. Norville attached the results of x-rays taken on June 29, 2012 which he interpreted as
showing subluxations in the cervical and lumbar spine at levels C1-5-7 and L5-S1.
By decision dated August 17, 2012, OWCP denied appellant’s claim. It found that the
medical evidence did not establish a diagnosed condition causally related to the accepted
employment incident.
LEGAL PRECEDENT
OWCP’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.2 An employee
seeking benefits under FECA has the burden of establishing the essential elements of his or her
claim, including the fact that the individual is an employee of the United States within the
2

20 C.F.R. § 10.5(ee).

2

meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
OWCP accepted that appellant established the employment incident of June 19, 2012. It
denied her claim as the medical evidence did not establish that her back condition was causally
related to the accepted incident.
Causal relationship must be established by a rationalized medical opinion. Neither the
fact that appellant’s condition became apparent during a period of employment nor her belief that
the condition was caused by her employment, is sufficient to establish a causal relationship.8

3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

8

I.G., Docket No. 12-1925 (issued March 11, 2013); see also Kathryn Haggerty, 45 ECAB 383, 389 (1994).

3

The Board finds that none of the medical evidence is sufficient to establish a causal relationship
between the accepted employment incident of June 19, 2012 and a diagnosed medical condition.
Dr. Si diagnosed muscle strain, sciatica, lumbar stenosis and arthritis and placed
appellant on limited duty for two months. However, he did not provide a rationalized medical
opinion addressing how these conditions were causally related to the accepted employment
incident.
OWCP found that the opinion of the chiropractor, Dr. Norville, could not establish the
medical aspect of appellant’s claim because he did not diagnose a subluxation of the spine.
FECA only allows the reports of chiropractors to be treated as medical evidence if there is a
diagnosed spinal subluxation as demonstrated by x-ray.9 The record reflects that Dr. Norville
obtained x-rays on June 29, 2012. He noted that the x-rays showed subluxations to appellant’s
cervical and lumbar spine. Dr. Norville is therefore a physician as defined under FECA, but he
did not provide a rationalized medical opinion addressing how the cervical or lumbar
subluxations were caused by the accepted employment incident. Although he indicated that
appellant’s diagnosed conditions were solely the result of the employment incident, he provided
no medical explanation for his opinion other than a check mark on a form report. Simply
responding “yes” to a question as to whether an employee’s condition was the result of an
accepted incident is insufficient to establish causal relationship.10
The record also contains notes by a nurse. However, a nurse is not a physician as defined
by FECA. Their opinions regarding diagnosis and causal relationship are not probative medical
evidence.11 Accordingly, appellant has not met her burden of proof to establish that she
sustained an employment injury causally related to the accepted June 19, 2012 employment
incident.
Appellant submitted new evidence after the issuance of the August 17, 2012 decision.
However, the Board lacks jurisdiction to review evidence for the first time on appeal.12
Appellant may submit this or any new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an employmentrelated injury on June 19, 2012, as alleged.
9

A chiropractor is not considered a physician under FECA unless their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the Secretary. 5 U.S.C. § 8101(2); see Mary Ceglia, 55 ECAB 626 (2004); Sean
O’Connell, 56 ECAB 195 (2004). Without diagnosing a spinal subluxation from x-ray, a chiropractor is not a
physician under FECA. W.D., Docket No. 12-968 (issued November 2, 2012).
10

See A.L., Docket No. 09-192 (issued July 27, 2009).

11

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

12

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2012 is affirmed.
Issued: May 23, 2013
Washington, DC

Alec J. Koromilas, Alternate 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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MECIAL
CENTER, Little Rock, AR, Employer
__________________________________________

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

Docket No. 15-0947
Issued: August 5, 2015

Case Submitted on the Record

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

JURISDICTION
On March 16, 2015 appellant filed a timely appeal from a March 5, 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.
ISSUE
The issue is whether appellant has established that she sustained an aggravation of
bilateral carpal tunnel syndrome, a cervical spine sprain, displacement of a cervical intervertebral
disc, and a trigger finger in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2013 appellant, then a 57-year-old emergency room administrative
assistant, filed an occupational disease claim (Form CA-2) alleging that on or before August 26,
2013, she sustained an aggravation of previously accepted carpal tunnel syndrome, a cervical
spine sprain, displacement of a cervical intervertebral disc, and a trigger finger in the
performance of duty. OWCP accepted these conditions under four prior claims: File
No. xxxxxx747, date of injury September 25, 2000, accepted for a sprain of the left radial
collateral ligament affecting the elbow and forearm, left hand joint derangement, right radial
styloid tenosynovitis, and right wrist and carpus enesopathy, resulting in a schedule award for a
two percent impairment of the left upper extremity; File No. xxxxxx271, date of injury
January 15, 2002, accepted for de Quervain’s tenosynovitis of the right upper extremity; File
No. xxxxxx908,2 date of injury April 5, 2009, accepted for bilateral carpal tunnel syndrome,
cervical strain, and a temporary aggravation of C5-6 and C6-7 disc herniations; File
No. xxxxxx474, accepted January 26, 2011 for trigger finger deformity of the right long finger.3
Appellant attributed these aggravations to being repeatedly forced to work outside of her medical
restrictions, and repetitive upper extremity motions at work. She stopped work on August 26,
2013 and did not return. Appellant filed claims for total disability compensation.
In an October 23, 2013 letter, OWCP advised appellant of the additional evidence needed
to establish her occupational disease claim, including a detailed description of the work factors
alleged to have caused the claimed conditions and a statement from her physician explaining
how and why those factors would cause those conditions. It afforded her 30 days to submit such
evidence.
Appellant’s supervisor provided a November 21, 2013 statement corroborating
appellant’s description of her job duties.4 She noted that appellant’s position required computer
data entry, answering the telephone, limited writing, and placing armbands on patients.
Appellant checked in three to five patients an hour, and handled telephone calls between patients.
The supervisor acknowledged that on approximately August 9, 2013, appellant advised her that
she was unable to take prescribed breaks due to short staffing. She then stated to appellant “we
don’t have enough staff,” but that she was still required to take prescribed breaks. The
supervisor confirmed that appellant’s telephone headset was not at her workstation.

2

In an October 17, 2013 file memorandum, OWCP noted that appellant did not request modification of a standing
wage-earning capacity determination under File No. xxxxxx908, but instead filed a claim under File No. xxxxxx794
for an occupational condition due to new occupational exposures.
3

In an October 30, 2013 file memorandum, OWCP noted that all of the conditions appellant listed on her claim
form had been accepted in her prior claims. As appellant attributed these conditions to new work exposures,
appellant filed a new claim for occupational disease on September 25, 2013. The previous claims are not presently
before the Board.
4

The record contains a 1995 position description, modified on several occasions through April 1, 2002, for the
administrative assistant job. The position required walking, occasional lifting, preparing reports, and extensive
interpersonal contacts.

2

The supervisor also provided May 13 and August 12, 2009 memoranda explaining that
due to the accepted carpal tunnel syndrome and cervical strain, appellant was provided with an
ergonomic chair, and an adjustable computer monitor. Appellant would also be given a
telephone headset, footrest, adjustable keyboard tray, and a rearrangement of her desk to avoid
reaching. On approximately August 9, 2013, she advised her supervisor that “her neck was
hurting, because she was not taking her breaks like she was supposed to, due to personnel
shortage. The supervisor informed [appellant], it did not matter if we were short, and she was
required to take breaks.” Also, appellant’s headset was not in her work area although she was
“required to use it when answering and talking on the telephone.” She was instructed to “take a
15-minute break every hour from [her] workstation,” with no keyboarding or simple grasping.
This change reduced appellant’s “fine manipulation and simple grasping” by a total two hours a
day, in addition to other 15-minute breaks. Appellant acknowledged these duty modifications on
August 14, 2009.
By decision dated January 2, 2014, OWCP denied appellant’s claim, finding that
appellant failed to establish causal relationship as she submitted no medical evidence. It found,
however, that “the injury and/or event(s) occurred as described.”
In a January 8, 2014 letter, appellant requested reconsideration. She alleged that the
employing establishment did not modify her workstation, and forced her to perform continuous
keyboarding and repetitive upper extremity tasks in violation of her work restrictions. Appellant
asserted that she was forced to exceed her work limitations due to a staffing shortage. She
contended that keyboarding, using a scanner, placing arm bands on patients, reaching, and
“working at night” caused continuous finger, hand, arm, shoulder, and neck pain, aggravating the
conditions accepted under her four prior claims. Appellant submitted additional evidence.5
A coworker submitted a November 4, 2011 statement noting that appellant was “willing
to adjust her schedule when needed to accommodate coworkers and ensure coverage for the
unit.” Another coworker asserted that appellant had no consistent assistance since the only other
administrative assistant retired in 2009. The coworker alleged that, since appellant began
working with her four days a week in 2008, appellant “appeared to be in pain” and expressed that
she was in pain. Appellant did “not get the opportunity to take scheduled breaks because there
[was] no one to relieve her.” The coworker also contended that appellant was not provided with
an appropriate ergonomic chair and keyboard.
In a December 23, 2013 report, Dr. William L. Rutledge, an attending Board-certified
orthopedic surgeon, noted that appellant presented on August 26, 2013 with bilateral carpal
tunnel syndrome, “[t]rigger finger, right long finger, and an acute exacerbation of cervicalgia.
He noted her duties as an administrative support assistant in the employing establishment’s
emergency department, checking in patients, “excessive keyboarding and use of the telephone,”
with repetitive reaching aggravating chronic cervicalgia. Dr. Rutledge opined that the diagnosed
exacerbations of a herniated cervical disc, as well as cervical paraspinal muscle spasms and
shoulder spasms, were caused by excessive repetitive upper extremity motion and “working
5

Appellant also submitted an October 11, 2013 report regarding a hospital admission to treat a diabetic
complication. Dr. Supreet Sethi, an attending nephrologist, diagnosed diabetes mellitus, major depressive disorder,
hypertension, and chronic back pain.

3

outside of restrictions for many months.” He noted treating appellant’s carpal tunnel syndrome
and cervical disc conditions for several years. Dr. Rutledge had permanently restricted simple
grasping to no more than two hours a day intermittently, with reaching above the shoulder for no
more than one-hour a day intermittently. He alleged that the employing establishment violated
these restrictions by requiring appellant to keyboard several hours a day, reach above shoulder
level, hold a telephone, and extensively use her hands and arms. Working outside of the
restrictions has caused an acute exacerbation of chronic neck problems as well as [appellant’s]
upper extremity pain and symptoms.” Dr. Rutledge held appellant off work through
December 23, 2013. He administered trigger point injections and prescribed physical therapy.
In March 27 and May 27, 2014 reports, Dr. Rutledge noted that appellant remained
disabled for work due to her recuperation from a cervical fusion. Appellant continued to claim
wage-loss compensation through June 1, 2014
In a June 11, 2014 e-mail, the employing establishment noted that appellant’s job duties
had not changed since she accepted a light-duty job offer on December 5, 2011. It
acknowledged that according to October 15 and November 21, 2013 supervisory statements,
appellant “did work outside of her restrictions.”
By decision dated June 11, 2014, OWCP found that appellant had not established causal
relationship. It also found that she did not establish as factual that she worked outside of her
medical restrictions, keyboarded several hours a day, reached above shoulder level, or held a
telephone. OWCP also noted that appellant failed to take breaks as instructed or use a telephone
headset provided to her. It further found that Dr. Rutledge’s medical reports were insufficient to
establish a causal relationship between the accepted work factors and the claimed conditions.
In a June 30, 2014 letter, appellant requested reconsideration.6 She submitted additional
medical evidence.
Dr. Rutledge provided two June 25, 2014 reports, opining that appellant’s bilateral carpal
tunnel syndrome was caused by continuous, extensive keyboarding and repetitive upper
extremity motion at work on or before August 26, 2013. These duties were noted to have also
aggravated appellant’s long right finger triggering even after she underwent surgery for this
condition. Dr. Rutledge also noted that she was made to work outside of her medical restrictions
of fine manipulation and simple grasping for more than two hours a day. He submitted form
reports through August 28, 2014 finding appellant totally disabled for work due to postsurgical
status.
By decision dated October 28, 2014, OWCP affirmed its June 11, 2014 decision, finding
that causal relationship was not established. It found that Dr. Rutledge based his opinion on an
inaccurate history, as he attributed appellant’s conditions to performing work outside her medical
restrictions whereas this was not supported by the factual record.

6

Appellant filed continuing claims for compensation through October 19, 2014.

4

In a January 9, 2015 letter, appellant requested reconsideration. She provided an
October 25, 2014 statement asserting that Dr. Rutledge’s opinion was sufficient to establish
causal relationship. Appellant submitted additional medical evidence.7
Dr. Bernard Crowell, an attending Board-certified orthopedic surgeon, noted on
December 26, 2013 that appellant had a long history of radicular neck pain with radiculopathy
into the left upper extremity. A December 23, 2013 magnetic resonance imaging (MRI) scan
showed a C5-6 disc herniation with central and neuroforaminal stenosis, and multilevel lumbar
arthropathy and neuroforaminal stenosis. Dr. Crowell recommended a C5-6 fusion.
In a February 13, 2014 report, Dr. Rutledge found appellant totally disabled for work
since late August 2013 due to an aggravation of cervical disc disease with severe cervical
spondylosis. Appellant underwent cervical fusion on January 13, 2014 by Dr. Bernard Crowell,
who was then evaluating her for left shoulder pain. She also had continuing bilateral carpal
tunnel syndrome and a right long trigger finger.
By decision dated March 5, 2015, OWCP affirmed its prior decisions, finding that
appellant failed to meet her burden of proof in establishing causal relationship. It found that
Dr. Rutledge continued to base his opinion on appellant’s inaccurate account of being made to
work outside her medical restrictions. Dr. Rutledge’s reports were therefore insufficient to
establish that accepted work factors caused or aggravated the claimed medical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.10 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
7

Appellant also submitted duplicate copies of evidence previously of record. She claimed compensation for total
disability through February 22, 2015
8

Joe D. Cameron, 41 ECAB 153 (1989).

9

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

10

20 C.F.R. § 10.5(q).

5

cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete, factual and medical background of the
claimant, must be one of reasonable medial certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.11
ANALYSIS
Appellant asserted that exposure to work factors on or before August 26, 2013 caused or
aggravated previously accepted cervical spine and upper extremity conditions. She contended
that in August 2013, a staffing shortage forced her to work beyond her medical limitations,
causing the claimed aggravations. OWCP denied the claim on March 5, 2015, finding that
although certain clerical work factors were established as factual, appellant had not substantiated
that she had worked outside her prescribed restrictions. It therefore found that the opinion of
Dr. Rutledge, an attending Board-certified orthopedic surgeon, was based on an inaccurate
history. The Board, however, finds that the factual evidence supports appellant’s contentions.
Appellant’s supervisor provided May 13 and August 12, 2009 memoranda and a
November 21, 2013 statement corroborating that on approximately August 9, 2013, appellant
advised that she was unable to take prescribed breaks due to short staffing. She confirmed that
the emergency department did not have sufficient staff, and that an ergonomic telephone headset
was not available at appellant’s workstation. Also, a coworker asserted that, since she began
working with appellant four days a week in 2008, appellant could not take scheduled breaks as
there was “no one to relieve her” due to a staffing shortage. Additionally, in a June 11, 2014
e-mail, the employing establishment acknowledged that appellant’s supervisor’s statements
established that she “did work outside of her restrictions.” The Board finds that these
uncontroverted statements are of sufficient probative quality to warrant additional development
by OWCP.
Appellant also provided medical evidence addressing her assertions that working outside
of her medical restrictions aggravated her neck and arm conditions. Dr. Rutledge explained on
December 23, 2013 and June 25, 2014 that constant, repetitive upper extremity motions
aggravated the accepted cervical spine and upper extremity conditions. He noted that OWCP
accepted repetitive motion as a causative factor.
On appeal, appellant contends that Dr. Rutledge’s reports are of sufficient probative
quality to establish that work factors on or before August 26, 2013 aggravated the claimed
conditions. As stated above, the case will be remanded for additional development.
11

Solomon Polen, 51 ECAB 341 (2000).

6

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.12 Therefore, the case will be remanded to OWCP for additional development of the
factual and medical record. OWCP shall request that the employing establishment provide
additional information regarding the short staffing acknowledged by the supervisor and its
impact on appellant’s work duties. It shall then request that Dr. Rutledge, or an appropriate
medical specialist, explain if the established work factors caused or aggravated the claimed
conditions. Following this and any other development deemed necessary, OWCP shall issue an
appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 5, 2015 is set aside, and the case remanded for additional
development consistent with this decision.
Issued: August 5, 2015
Washington, DC

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

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

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

12

Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB
852 (1988).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 08-2131
Issued: April 1, 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 July 29, 2008 appellant filed a timely appeal of the November 5, 2007 merit decision
of the Office of Workers’ Compensation Programs, which denied her claim for an employmentrelated emotional condition. She also timely appealed the Office’s June 5, 2008 decision
denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of appellant’s claim.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied appellant’s November 17, 2007
request for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 6, 2007 appellant, then a 46-year-old customer service supervisor, filed an
occupational disease claim for depression. She also reported neck and shoulder pain with
numbness radiating into her left upper extremity. Appellant identified May 1, 2005 as the date

she first became aware of her condition. However, it was not until July 25, 2000 that she
realized her condition was employment related. Appellant noted that she had another claim that
had already been accepted by the Office and was currently open for medical treatment. Her
previous injury occurred on or about September 9, 2000 and was accepted for myalgia and
myositis, neck sprain and major depression, single episode (claim number xxxxxx535). In
appellant’s current claim, she explained that emotionally distressing circumstances created by
her manager exacerbated her condition leaving her unable to perform her duties.
In an accompanying statement, appellant indicated that since April 2007 she had been
involved in several emotionally distressful situations with her station manager, Debra Powell.
She generally described these incidents as “harassment, degradation, humiliation,
embarrassment, verbal abuse [and] abuse of authority.” This reportedly occurred on a daily
basis. Appellant claimed she was depressed, fatigued and unable to concentrate on her work.
She stated that the emotional distress Ms. Powell put her through over the past four months
aggravated the medical conditions accepted under claim number xxxxxx535.
Ms. Powell provided an August 9, 2007 statement in which she denied the alleged
harassment, degradation, humiliation, embarrassment, verbal abuse or abuse of authority. She
further stated that appellant had not mentioned any illness to her regarding pain in her left arm
and there was never any talk of depression, lack of sleep or loss of focus concerning appellant’s
job duties.
In an August 10, 2007 report, Dr. Robert E. Schultz, Sr., a Board-certified neurosurgeon,
advised that appellant had been incapacitated since July 25, 2007 due to an exacerbation of her
chronic cervical myofascitis. He explained that because of the chronic nature of appellant’s
condition it “may flare up periodically due to excessive stress/strain on her cervical muscles if
she exceeds her medical restrictions or for unspecified reasons....”
The Office wrote to appellant on August 29, 2007 requesting additional factual and
medical information. The letter indicated that appellant had reported being involved in several
distressful situations with her station manager, but failed to provide specific details. The Office
asked appellant to describe in detail the employment-related incidents that she believed
contributed to her illness, including specific dates and times and any other relevant facts. It also
advised appellant to provide witness statements or other documentation to support each of her
allegations. Appellant was also instructed to submit a comprehensive medical report. The
Office afforded appellant 30 days to submit the requested information.
The Office received several additional reports from Dr. Schultz regarding appellant’s
cervical myofascitis, which reportedly had been exacerbated by her employment. However,
Dr. Schultz did not elaborate on how appellant’s employment had exacerbated her cervical
condition. Dr. Schultz released appellant to return to work in her previous capacity effective
August 30, 2007. Additionally, the Office received an August 29, 2007 report from clinical
psychologist, Michael A. Hinz, Ph.D., who diagnosed recurrent major depression, moderate.
Dr. Hinz attributed appellant’s condition to “verbal harassment by supervisor in apparent
retaliation of a filed Equal Employment Opportunity (EEO) complaint. Although the Office
received additional medical evidence, it did not receive a timely response from appellant
regarding the specific details of the alleged mistreatment by Ms. Powell.

2

By decision dated November 5, 2007, the Office denied appellant’s August 6, 2007
occupational disease claim. It noted that appellant had not provided the requested factual
information. Consequently, the Office found that appellant had not demonstrated that she
sustained an injury as alleged.
On November 17, 2007 appellant requested reconsideration, which the Office received on
November 26, 2007. The reconsideration request was accompanied by a signed medical records
release, another copy of Dr. Schultz’s August 10, 2007 report and a two-page undated factual
statement that was noted to be “in response to letter dated [August] 29[,] [20]07.” In her latest
statement, appellant noted, among other things, an April 10, 2007 yelling incident with
Ms. Powell that reportedly occurred in front of coworkers. Appellant also mentioned an
April 19, 2007 incident where Ms. Powell reportedly used the “‘N word.’” There was also
mention of an April 26, 2007 meeting between appellant and several managers regarding
Ms. Powell’s behavior towards appellant. Additionally, she said she asked Ms. Powell several
times not to embarrass and humiliate her.
In a decision dated June 5, 2008, the Office denied appellant’s request for
reconsideration. It noted that the request received on November 26, 2007 did not include “new
and relevant evidence.”
LEGAL PRECEDENT -- ISSUE 1
To establish that appellant sustained an emotional condition causally related to factors of
her federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition; and
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.1
ANALYSIS -- ISSUE 1
Appellant generally alleged that she was the victim of “harassment, degradation,
humiliation, embarrassment, verbal abuse [and] abuse of authority.” This reportedly occurred on
a daily basis and appellant’s supervisor, Ms. Powell, was the alleged culprit. However,
Ms. Powell denied the allegations. For harassment to give rise to a compensable disability there
must be evidence that harassment occurred.2 A claimant’s mere perception of harassment is not
compensable.3 The allegations of harassment must be substantiated by reliable and probative
evidence.4 On August 29, 2007 the Office afforded appellant the opportunity to both elaborate
and substantiate her allegations of mistreatment by her supervisor. Appellant, however, did not
respond in a timely fashion.
1

See Kathleen D. Walker, 42 ECAB 603 (1991).

2

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

3

Id.

4

Joel Parker Sr., 43 ECAB 220, 225 (1991).

3

The record at the time of the Office’s November 5, 2007 merit decision did not include
sufficient factual evidence identifying and supporting employment factors or incidents alleged to
have caused or contributed to appellant’s condition. Accordingly, appellant failed to meet her
burden of proof and the Office properly denied her August 6, 2007 claim.
LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.5 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.6
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.7
ANALYSIS -- ISSUE 2
Contrary to the Office’s June 5, 2008 decision, appellant had submitted new and relevant
evidence with her request for reconsideration. On November 26, 2007 it received appellant’s 2page undated statement “in response to [the Office’s] letter dated [August] 29[,] [20]07.” This
statement provided details of several April 2007 incidents between appellant and Ms. Powell. In
one such incident, Ms. Powell allegedly used the “‘N word.’” As previously discussed, the
Office denied appellant’s August 6, 2007 claim because she had not provided sufficiently
detailed information regarding employment incidents that allegedly caused or contributed to her
claimed condition. Appellant’s undated statement is relevant to the issue for which her claim
was previously denied. As it was not part of the record on or about November 5, 2007, this latest
statement is both new and relevant and thus, satisfies the requirement for further merit review
under 20 C.F.R. § 10.606(b)(2)(iii). Accordingly, the case is remanded to the Office for review
on the merits.
CONCLUSION
As of November 5, 2007 appellant failed to establish that she sustained an emotional
condition in the performance of duty. But upon subsequent reconsideration, the Office
improperly denied merit review. Appellant submitted new and relevant evidence on or about
November 26, 2007, thus requiring further merit review of her claim by the Office.

5

5 U.S.C. § 8128(a) (2006).

6

20 C.F.R. § 10.606(b)(2) (2008).

7

20 C.F.R. § 10.608(b).

4

ORDER
IT IS HEREBY ORDERED THAT the November 5, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed. However, the Office’s June 5, 2008 decision
denying further merit review is set aside, and the case remanded for further action consistent
with this decision.
Issued: April 1, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1310
Issued: October 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 22, 2015 appellant, through counsel, filed a timely appeal from a November 24,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish continuation of pay.
FACTUAL HISTORY
OWCP had previously accepted that on October 7, 2013 appellant, then a 41-year-old
city carrier assistant, sustained right knee and ankle sprains when she stepped into a hole while
delivering mail. It assigned the claim File No. xxxxxx255. Appellant stopped work on

1

5 U.S.C. § 8101 et seq.

October 7, 2013 and returned to work on November 20, 2013.
Dr. Kevin E. Julian, an attending Board-certified orthopedic surgeon.

She was followed by

In a December 4, 2013 letter, OWCP noted that during a December 3, 2013 telephone
call, appellant had stated that she “stopped work on November 23, 2013 after sustaining a new
injury.” It advised her that if she planned to claim compensation for that incident, she must file a
new claim.
On January 3, 2014 appellant filed an occupational disease claim (Form CA-2) alleging
that on November 23, 2013 she sustained a right foot and ankle injury while walking her delivery
route. She explained that the claim form was late as she received “incorrect paperwork to
complete … this process.” Appellant stopped work on November 23, 2013. Her supervisor
noted that appellant “called in sick” on November 23, 2013, but did not report an injury to the
employing establishment until January 3, 2014. OWCP assigned the claim File No. xxxxxx599.
It developed the occupational disease claim as a traumatic injury claim.
Appellant filed a claim for compensation (Form CA-7) on January 13, 2014 for the
period November 26, 2013 to January 10, 2014 and indicated her desire for continuation of pay.
In a January 17, 2014 memorandum, OWCP noted that the Form CA-7 had been initially placed
in File No. xxxxxx255, then associated with the proper File No. xxxxxx599.2
In a January 29, 2014 letter, appellant asserted that walking her mail route on
November 23, 2013 aggravated the October 7, 2013 employment injury. She contended that the
employing establishment gave her the wrong claim form.
On March 3, 2014 OWCP accepted that appellant sustained a right ankle sprain on
November 23, 2013. It later expanded the claim to accept reflex sympathetic dystrophy
syndrome of the right lower extremity. OWCP paid compensation for the period November 30,
2013 to April 5, 2014.
By decision dated March 3, 2014, OWCP denied appellant’s claim for continuation of
pay from November 24, 2013 to January 7, 2014 as she did not report the injury “on a form
approved by OWCP within 30 days following” the November 23, 2013 employment injury.
On March 27, 2014 appellant requested an oral hearing which was held on
October 14, 2014. At the hearing, counsel contended that the employing establishment erred by
providing her a claim form for occupational disease instead of a claim for traumatic injury. He
asserted that appellant had a November 27, 2013 “handwritten note,” but acknowledged that she
did not file a claim until January 3, 2014. The hearing representative noted that appellant could
have utilized Form CA-1, Form CA-2, or Form CA-7 to provide notice of the injury within 30
days.

2

In a March 4, 2014 memorandum, OWCP recommended that File No. xxxxxx255, accepted for the October 7,
2013 right ankle and knee sprains, and File No. xxxxxx599, accepted for a November 23, 2013 right ankle sprain,
shoulder be doubled under File No. xxxxxx599. However, it does not appear from the case record that OWCP
doubled the claims.

2

By decision dated and finalized November 24, 2014, an OWCP hearing representative
affirmed the March 3, 2014 decision denying continuation of pay. He found that appellant did
not submit any type of claim form within 30 days of November 23, 2013.
LEGAL PRECEDENT
Section 8118 of FECA3 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
his or her immediate supervisor on a form approved by the Secretary of Labor within the time
specified in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of
injury must be given as specified in section 8119. The latter section provides, in part, that notice
of injury shall be given in writing within 30 days of the injury.4 Claims that are timely under
section 8122 are not necessarily timely under section 8118(a). FECA authorizes continuation of
pay for an employee who has filed a valid claim for traumatic injury.5 Section 8118(a) makes
continuation of pay contingent on the filing of a written claim within 30 days of the injury.
When an injured employee makes no written claim for a period of wage loss within 30 days, he
or she is not entitled to continuation of pay, notwithstanding prompt notice of injury.6
Section 10.205 of OWCP regulations provide in pertinent part that to be eligible for
continuation of pay, a person must: (1) have a traumatic injury which is job related and the
cause of the disability, and/or the cause of lost time due to the need for medical examination and
treatment; (2) file Form CA-1 within 30 days of the date of injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.7
ANALYSIS
Appellant filed a notice of occupational disease (Form CA-2) on January 3, 2014 for an
injury sustained on November 23, 2013. Appellant’s supervisor noted that appellant “called in
sick” on November 23, 2013, but did not provide written notice of the injury until January 3,
2014, more than 30 days after the accepted November 23, 2013 employment injury. No
evidence was received by OWCP which supports an earlier written notice. The evidence of
record establishes that appellant did not file her claim within 30 days from the date of injury, as
required by section 10.205(a)(2) of OWCP regulations.8 The Board therefore finds that appellant
is not entitled to continuation of pay.

3

5 U.S.C. § 8118.

4

Id. at § 8119(a), (c); see also Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

Id. at § 8118(a).

6

J.L., Docket No. 15-0832 (issued July 28, 2015); see also W.W., 59 ECAB 533 (2008).

7

20 C.F.R. § 10.205(a).

8

J.L., supra note 6; see also Guy W. Adkins, Docket No. 94-0177 (issued June 6, 1995) (finding that the notice of
traumatic injury claim form was filed, for continuation of pay purposes, on the date reflected in the official
supervisor’s report).

3

On appeal, counsel asserts that the employing establishment failed to fulfill its obligation
under 20 C.F.R. § 10.211 to provide appellant a Form CA-1 when she informed them of the
November 23, 2013 employment injury. Instead, appellant’s supervisor provided a Form CA-7.
Counsel also argues that the Form CA-7 appellant allegedly filed on January 13, 2014 under File
No. xxxxxx255, for the October 7, 2013 employment injury, constituted timely “words of claim”
that preserved her eligibility for continuation of pay under the present claim. He notes that in
Broderick C. Harrell,9 the Board held that written notice of injury within 30 days on a Form CA2, CA-2a, or CA-7 could satisfy timely filing requirements in lieu of a Form CA-1. The Board
notes that counsel’s second argument preempts his first. He states correctly that appellant could
have preserved her eligibility for continuation of pay had she filed a Form CA-7 under the
present claim within 30 days of the November 23, 2013 employment injury. However, appellant
did not do so as she did not file the Form CA-7 until January 13, 2014. Moreover, any evidence
under File No. xxxxxx255 is irrelevant to the present claim of the record does not demonstrate
that OWCP doubled the two claims. Therefore, OWCP has failed to establish continuation of
pay, as there were no timely words of claim under the present claim.
CONCLUSION
The Board finds that appellant failed to establish continuation of pay.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 24, 2014 is affirmed.
Issued: October 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
9

Docket No. 98-2263 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 14-111
Issued: April 4, 2014

Case Submitted on the Record

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

JURISDICTION
On October 18, 2013 appellant filed a timely appeal from a May 2, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his April 10, 2010
wage-earning capacity should be modified. On appeal he generally asserts that OWCP erred and
that the evidence establishes that he was unable to perform his date-of-injury job as a pipefitter.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board.2 By order dated March 28, 2002, the
Board dismissed appellant’s appeal on the grounds that the record did not contain a final adverse
OWCP decision issued within one year of the filing of the appeal on January 25, 2000.3 In a
July 7, 2006 decision, the Board found that appellant had not established more than 50 percent
right leg permanent impairment for which he previously received a schedule award, and that
OWCP had properly refused to reopen his case for a merit review pursuant to 5 U.S.C.
§ 8128(a).4 In an April 14, 2011 decision, the Board found the medical evidence submitted by
appellant had not established a material worsening of his injury-related right knee condition such
that he could no longer perform the duties of the emergency services clerk position.5 In an order
remanding case dated July 26, 2012, the Board found that OWCP should have adjudicated
appellant’s October 6, 2011 request for reconsideration as a request for modification of his wageearning capacity determination.6 The law and the facts of the previous Board decisions and
orders are incorporated herein by reference.
Following the Board’s July 26, 2012 remand, appellant submitted duplicates of
documentary and medical evidence previously reviewed by OWCP and the Board.7

2

On October 16, 1980 appellant, a pipefitter, sustained a work-related right knee contusion and permanent
aggravation of chondromalacia of the patella. On January 13, 1982 he was granted a schedule award for a 10
percent impairment of the right leg. By decision dated April 8, 1982, OWCP reduced appellant’s compensation
based on his capacity to earn wages as a customer service clerk, and in decisions dated August 2, 1982 and
March 19, 1986, denied modification of the April 8, 1982 decision. Appellant returned to his regular pipefitter
duties on June 15, 1992. His physician placed further restrictions on his physical activity and, effective May 2,
1993, he began a modified position as an emergency services clerk. On June 18, 1993 appellant underwent
arthroscopy of the right knee. He returned to the emergency services clerk position and by decision dated
December 20, 1993, OWCP determined that his actual wages as an emergency services clerk fairly and reasonably
represented his wage-earning capacity with zero loss. On September 20, 1994 appellant was granted a schedule
award for an additional three percent right leg impairment. He retired in November 1994. On April 16, 1997
appellant underwent a right total knee replacement. On April 24, 1998 OWCP granted him a schedule award for an
additional 25 percent right leg impairment. Appellant had a revision of his right total knee replacement in
October 2000.
3

Docket No. 01-618 (issued March 28, 2002). The Board had initially dismissed the appeal as untimely, by order
dated February 23, 2001 and reinstated the appeal by order dated May 7, 2001.
4

Docket No. 06-548 (issued July 7. 2006). By decision dated December 29, 2003, appellant was granted a
schedule award for an additional 12 percent which, when added to the 38 percent previously awarded, yielded a total
right lower extremity impairment of 50 percent. By decision dated January 6, 2005, OWCP found that he was not
entitled to an additional schedule award for his right lower extremity and in a November 4, 2005 decision, it denied
appellant’s reconsideration request.
5

Docket No. 10-1631 (issued April 14, 2011).

6

Docket No. 12-577 (issued July 26, 2012).

7

Appellant also submitted a February 22, 2013 report from Dr. Paul S. Camnitz, a Board-certified
otolaryngologist, with an attached October 14, 2011 audiological evaluation. The record before the Board does not
indicate that he has filed a hearing loss claim.

2

By decision dated May 2, 2013, OWCP denied modification of the April 16, 2010 wageearning capacity determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8 OWCP procedures in effect at the time of the
May 2, 2013 decision provided that it could make a retroactive wage-earning capacity
determination if the claimant worked in the position for at least 60 days, the position fairly and
reasonably represented his or her wage-earning capacity and the work stoppage did not occur
because of any change in the injury-related condition affecting the ability to work.9
Chapter 2.814.11 of OWCP procedures indicates that a formal loss of wage-earning
capacity will be modified when: (1) the original rating was in error; (2) the claimant’s medical
condition has changed; or (3) the claimant has been vocationally rehabilitated. It procedures
further provided that the party seeking modification of a formal loss of wage-earning capacity
decision has the burden to prove that one of these criteria has been met. If OWCP was seeking
modification, it had to establish that the original rating was in error, that the injury-related
condition had improved or that the claimant had been vocationally rehabilitated.10 The burden of
proof is on the party attempting to show a modification of the wage-earning capacity
determination.11
The procedures directed that a wage-earning capacity determination based on actual
wages be made following 60 days of employment and provided for a retroactive determination
where an employee had worked for at least 60 days, the employment fairly and reasonably
represented the employee’s wage-earning capacity, and work stoppage did not occur due to any
change in the injury-related condition.12 The formula for determining loss of wage-earning
capacity based on actual earnings, developed in the Albert C. Shadrick decision,13 has been
codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s wage-earning capacity in terms

8

Katherine T. Kreger, 55 ECAB 633 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (October 2009). The procedure manual was revised, effective June 4, 2013. See FECA
Transmittal No. 13-09 (issued June 4, 2013).
10

Id. at section 2.814.11 (October 2009).

11

Id.

12

K.S., Docket No. 08-2105 (issued February 11, 2009); Federal (FECA) Procedure Manual, id. at sections
2.814.7(c) and 2.814.7(e) (October 2009).
13

5 ECAB 376 (1953).

3

of percentage by dividing the employee’s earnings by the current pay rate for the date-of-injury
job.14
ANALYSIS
Applicable case law and OWCP procedures require that once a formal wage-earning
capacity decision is in place, a modification of such determination is not warranted unless there
is a material change in the nature and extent of the injury-related condition, the employee has
been retrained or otherwise vocationally rehabilitated, or the original determination was, in fact,
erroneous.15 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.16
The Board finds that appellant failed to establish that his wage-earning capacity should
be modified. OWCP accepted that on October 16, 1980 he sustained a right knee contusion and
permanent aggravation of chondromalacia patella. Although appellant is generally asserting on
appeal that he could not perform the duties of his date-of-injury position as pipefitter, his wageearning capacity is based on his modified position as an emergency services clerk that he
performed from May 1993 until he retired in November 1994. The Board has previously held, in
its April 14, 2011 decision,17 that appellant’s wage-earning capacity position of emergency
services clerk was not temporary, part-time or makeshift, the Shadrick formula was properly
calculated to determine his loss of wage-earning capacity18 and that there was no other evidence
to suggest error in the previous wage-earning capacity.19 There is no evidence to show, and it
has not been asserted, that appellant has since been vocationally rehabilitated.
Appellant has failed to submit with his October 6, 2011 request for modification of this
wage-earning capacity that there was a material change in his physical condition such that he
could not perform the sedentary duties of the emergency services clerk position. The only
medical evidence submitted, a May 18, 2011 treatment note from Dr. George J. Miller, an
attending Board-certified orthopedic surgeon, described the right knee work injury and
appellant’s surgical history. Dr. Miller advised that appellant complained of constant right knee
pain and that he used a cane and a motorized wheelchair. He noted additional medical
conditions including asthma, chronic obstructive pulmonary disease, heart disease with previous
bypass surgery and prostate cancer. Dr. Miller provided physical examination findings for both
knees, noting negative laxity and meniscal tests bilaterally. He commented that appellant had
anterior right knee skin sensitivity with excellent stability and strong extension of the right knee.
Dr. Miller advised that, when observing appellant walk without his cane about the office,
appellant did not fall but walked slowly and that balance without his cane was adequate. He
14

20 C.F.R. § 10.403(c).

15

Stanley B. Plotkin, 51 ECAB 700 (2000).

16

Id.

17

Supra note 5.

18

20 C.F.R. § 10.403(c).

19

Supra note 5.

4

diagnosed joint leg pain and status post knee joint replacement. Dr. Miller opined that
appellant’s right knee problems were work related. However, he did not address appellant’s
physical capacity for work or, in particular, any inability to perform the duties of the sedentary
emergency services clerk position. Dr. Miller’s report is therefore of little probative value on the
issue of whether appellant’s injury-related right knee condition materially changed such that the
wage-earning capacity determination should be modified.20 No other medical evidence was
received.
As the medical evidence submitted by appellant fails to adequately describe a material
worsening of his accepted work-related right knee condition, it is insufficient to establish that his
wage-earning capacity decision should be modified.21
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that the
April 16, 2010 wage-earning capacity decision should be modified.

20

Rationalized medical opinion evidence is medical evidence based on a complete factual and medical
background of reasonable medical certainty and supported by medical rationale explaining the opinion offered.
A.P., Docket No. 08-1822 (issued August 5, 2009).
21

P.C., 58 ECAB 504 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 4, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6