United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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

Docket No. 07-1835
Issued: December 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs merit decision dated June 7, 2007 denying his claim for an emotional
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable factors of his federal employment.
FACTUAL HISTORY
On May 23, 206 appellant, then a 42-year-old Family Medical Leave Act (FMLA)
coordinator, filed an occupational claim (Form CA-2), alleging that he sustained anxiety as a
result of his federal employment. In a narrative statement he discussed specific incidents that he
believed caused stress, commencing with an August 2, 1999 incident in which appellant thought
a letter carrier was going to harm him. Appellant noted an arbitrator’s decision dated May 2,

2001 finding that he should be removed from supervisory duties for one year which he alleged
was implemented without appropriate safeguards. He referred to a temporary assignment in
2002, alleged that he was illegally removed from his position in Kernersville and learned that he
had no job when he returned from vacation in May 2004. Appellant alleged that on July 6, 2005
Supervisor Gary A. Chriscoe failed to defend him and let the arbitrator’s decision possibly be
cited against him in the future. On January 30, 2006 Mr. Chriscoe threatened to fire appellant if
he did not submit additional medical documentation. On April 13, 2006 Mr. Chriscoe told him
“I [a]m going to get you. You are not going to win.” On May 4, 2006 he told appellant not to
submit any more change of schedule requests and conducted a preinvestigative disciplinary
interview in retaliation for filing the compensation claim.
Mr. Chriscoe submitted a May 1, 2006 statement discussing in detail the May 1, 2006
incident. He told appellant it was against employing establishment policy to work more than six
hours without a lunch break and asked appellant not to submit change of schedule requests that
violated the policy. Mr. Chriscoe stated that it was appellant who said “you are not going to win,
I am. I will get you.” In a May 25, 2006 statement, he reported that on January 30, 2006
appellant was told his physician’s report did not state that he was incapacitated, but since he was
requesting FMLA leave, the decision would be made by the FMLA coordinator. With respect to
an April 2006 leave request, Mr. Chriscoe indicated that appellant was requesting leave for an
entire month and it was necessary to ensure a replacement was available to cover his absence.
In a decision dated November 20, 2006, the Office denied the claim for compensation. It
determined that appellant had not established any compensable work factors.
Appellant requested an oral hearing before an Office hearing representative which was
held on March 21, 2007. The record includes a November 28, 2006 letter from a union official
regarding the January 30, 2006 incident. The union official stated that Mr. Chriscoe told
appellant that, if he did not provide medical documentation that stated he was incapacitated then
he would be absent without leave (AWOL) and then fired. She stated that she told the supervisor
he did not have the authority to disapprove the FMLA request. In his request for a hearing,
appellant alleged that on September 25, 2006 Mr. Chriscoe loudly instructed him to get his
personal belongings and leave the building. In a March 2, 2007 letter, appellant alleged that in
February 2007 the Mr. Chriscoe yelled at him and told him to use his personal credit card for
expenses other than travel and hotel accommodations. Appellant alleged that this was a violation
of employing establishment policy and enclosed a portion of the employee and labor relations
manual.
In a statement dated September 27, 2006, Mr. Chriscoe stated that on September 25, 2006
there was an investigative interview regarding appellant’s failure to follow instructions and he
was informed he was being removed as FMLA coordinator. He indicated that appellant was told
to report to the bulk mail center for assignment. Appellant was also informed that he would be
escorted out of the building and could not return without permission. In a May 9, 2007
statement, Mr. Chriscoe stated that there had been numerous complaints against appellant and
concern over his mishandling of FMLA cases resulted in his reassignment. With regard to the
February 2007 incident, he indicated that appellant had failed to renew his government credit
card and the employing establishment was able to put his airline tickets on the corporate credit
card and arrange for another employee to put the hotel on the employee’s credit card. Appellant

2

was told he would have to pay for meals on his own, like other employees and be reimbursed on
filing an expense report.
The record contains a statement from a union representative, Debra Ford, regarding the
September 25, 2006 investigative interview. She stated that Mr. Chriscoe erred in failing to give
seven days notice and documenting the reassignment using the proper form. Ms. Ford enclosed
a portion of a document stating temporary assignments must be documented using Form 1723.
By decision dated June 7, 2007, the hearing representative affirmed the November 20,
2006 decision. The hearing representative found that appellant had not established any
compensable work factors.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors causing a condition or disability, the Office, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may

1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

4

Lillian Cutler, 28 ECAB 125 (1976).

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not be considered.5 If a claimant does implicate a factor of employment, the Office should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, the Office must base its decision on an analysis of the medical evidence.6
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.8
ANALYSIS
Appellant filed a claim alleging an emotional condition causally related to his federal
employment. As noted above, the first consideration is whether he has alleged and substantiated
with probative evidence, a compensable work factor. Appellant’s primary allegations in this
case appear to relate to actions by his supervisor. An administrative matter will be a
compensable factor only if the evidence establishes error or abuse by the employing
establishment.
In reviewing the specific incidents alleged, there is insufficient evidence to establish error
or abuse in this case. With respect to a January 30, 2006 incident, the evidence indicated that
Mr. Chriscoe asked for additional medical documentation. A union official indicated that he
stated that appellant could be placed on AWOL and then terminated if he did not have adequate
medical evidence. The evidence indicated, however, that Mr. Chriscoe was advised that since
this was a leave request under FMLA, it would be handled by a FMLA coordinator. Even he
was not in a position to request additional documentation for a FMLA leave request, the
evidence does not establish that the statements of Mr. Chriscoe rose to the level of administrative
error or abuse. It is well established that not every statement uttered in the workplace will give
rise to a compensable work factor.9 Appellant was not placed on AWOL and the leave request
was considered by the appropriate personnel. The Board finds that the record does not establish
a compensable factor with respect to a January 30, 2006 incident.
Appellant alleged that on May 1, 2006 his supervisor stated, “I’m going to get you” and
that he was subject to retaliation for filing a compensation claim. Mr. Chriscoe provided a
detailed statement regarding the May 1, 2006 incident that did not support the allegation. He
discussed appellant’s requests for schedule changes and noted employing establishment’s policy.
No probative evidence of error or retaliation was submitted.
5

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

6

Id.

7

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

8

Margreate Lublin, 44 ECAB 945, 956 (1993).

9

Judy L. Kahn, 53 ECAB 321, 326 (2002).

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With regard to a September 25, 2006 incident, the evidence does not establish a
compensable work factor. Mr. Chriscoe indicated that appellant was removed from his position
based on performance. While there is a statement from a union representative that there was
administrative error regarding notice and documentation of the reassignment, the evidence of
record is not sufficient to establish error. Appellant submitted a brief portion of an employing
establishment document stating that temporary assignments must be documented on a specific
form, but that is not in itself sufficient to establish error. It is not clear what relevant employing
establishment’s policies are implicated and there are no findings of error or other probative
evidence. The Board finds that appellant has not established a compensable work factor with
respect to a September 25, 2006 incident. Appellant also alleged error of employing
establishment’s policy in a February 2007 incident and provided a brief section of an employing
establishment labor relations manual. Mr. Chriscoe discussed the travel incident and the record
contains no evidence of error or abuse in this regard.
In his initial statement, appellant noted incidents that did not involve Mr. Chriscoe such
as an August 1999 incident involving a letter carrier who he thought was going to physically
injure him. Appellant did not provide any other relevant details or supporting evidence. He
alleged that he was illegally removed from his position at the Kernersville facility without
providing any probative evidence of error.
The Board finds that the record does not substantiate any claim of error or abuse by the
employing establishment or other compensable work factor. Since appellant has not established
a compensable work factor the Board will not address the medical evidence.10
CONCLUSION
Appellant did not meet his burden of proof to establish an emotional condition causally
related to compensable work factors. The evidence of record is not sufficient to substantiate a
compensable work factor.

10

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 7, 2007 and November 20, 2006 are affirmed.
Issued: December 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE NAVY,
MARINE CORPS, Camp Lejeune, NC, Employer
__________________________________________

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

Docket No. 13-1487
Issued: July 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 10, 2013 appellant filed a timely appeal from March 5, 2013 schedule award
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than 15 percent impairment of the right leg or 4
percent impairment of the right arm, for which he received schedule awards.

1

Effective May 20, 2014, Patricia Howard Fitzgerald was appointed Acting Chief Judge.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2009 appellant, then a 55-year-old pipefitter, removed a condensate tank
cover and sustained second degree steam burns to his body. The claim was accepted by OWCP
for second degree burns of multiple sites of the trunk, burns involving 10 to 19 percent of the
body surface and second degree burns to multiple sites. Appellant was hospitalized until
December 21, 2009 and received multiple skin grafts. He returned to full-time modified duty on
January 10, 2010. Appellant continued to receive medical treatment for the accepted conditions.
On April 27, 2012 appellant filed a schedule award claim. In a March 15, 2011 report,
Dr. Bryan J. Cicuto, an attending osteopath, advised that appellant sustained a 14 percent total
body surface work-related scald burn on December 8, 2009. Physical examination demonstrated
the graft and donor sites to be closed. The right upper extremity autograph had scattered areas of
hypertrophy and did the right thigh. There was full range of motion of the lower extremities with
equal strength bilaterally of the upper and lower extremities. There was reduced sensation to
light touch over the deep peroneal nerve distribution. Dr. Cicuto noted that appellant’s
neurological complaints did not appear to be related to the accepted burn, but was reminiscent of
a diabetic neuropathy although appellant denied being a diabetic. Under section 8.7 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),3 the Criteria for Rating Permanent Impairment due to
Skin Disorders, appellant had a class 2 skin disorder which represented 15 percent whole body
impairment.
On June 22, 2012 OWCP advised appellant to submit additional evidence in support of
his claim. It provided material concerning the rating of skin impairment and advised him to take
the letter to his physician for review.
In an August 28, 2012 report, Dr. Bruce A. Cairns, Board-certified in general and critical
care surgery, presented findings on examination. Appellant had a late effect burn injury with
skin graft over his right elbow with no obvious decreased range of motion, open sites or signs of
infection. The abdominal wound showed late effects of burn injury. For the right leg, Dr. Cairns
advised that appellant had superficial peroneal neuropathy with numbness in his legs and feet,
variability of skin color and the need to use sunscreen and moisturizing creams for protection.
He found that appellant had a work-related 14 percent total body surface scald injury of his right
arm, abdomen and right leg with associated neurological deficits. Maximum medical
improvement was reached that date, based on appellant’s examination. Dr. Cairns stated that
appellant’s permanent impairment was based on the December 8, 2009 burn injury that required
skin grafts, stating that he had late effects of the injury which clearly affected temperature,
sensation, aching and other issues associated with a burn injury. He advised that the superficial
peroneal neuropathy with numbness in appellant’s legs and feet had an obvious impact on his
ability to work during the day and that he would need sunscreen and other medications.
Dr. Cairns concluded that, under Table 8-2, Criteria for Rating Permanent Impairment due to
Skin Disorders, appellant had a class 2 skin disorder which represented 15 percent impairment of
the right leg and four percent impairment of the right arm.
3

A.M.A., Guides (6th ed. 2008).

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On October 26, 2012 OWCP referred appellant to Dr. Karen Buckley, a Board-certified
plastic surgeon, for a second opinion, who provided a statement of accepted facts and a set of
questions regarding skin impairment. In a report dated November 1, 2012, Dr. Buckley reviewed
the history of injury and medical records. Physical examination demonstrated well-healed,
supple, soft scars on the right arm measuring 18 by 9 centimeters that was not causing a flexion
contracture. There was a good range of motion of the arm. Dr. Buckley noted some hyperemia
and patterning, consistent with meshing of the skin graft and stated that the skin was thin, as to
be expected with a split thickness skin graft, which was vulnerable to future trauma. She advised
that the lower two-thirds of appellant’s anterior abdomen had an appearance consistent with a
meshed split thickness skin graft, with no area of contracture, hypertrophy, breakdown or
blistering. The abdominal skin had the atrophic texture of a healed split thickness skin graft and
indicated that at appellant’s right groin, there was a 24 by 17 centimeter area that appeared to be
a deeper burn that required a deeper excision, which was covered with a well-healed split
thickness skin graft. A small amount of hypertrophy was present in this area with mild banding,
but no joint contracture and good motion across the area of the burn in his groin. Appellant
reported intermittent symptoms in this area, with some abnormal sensation, which would be
consistent with areas of split thickness skin grafts for full thickness burns. Dr. Buckley reported
that appellant’s major concern was numbness from his right knee downward and advised that he
had weak, though present dorsiflexion of the foot. She stated that appellant had a blunt nerve or
soft tissue injury to his spine at the time of the burn, indicating that it was highly likely that he
sustained the peroneal nerve injury at the time of the work injury.
Dr. Buckley found that appellant had reached maximum medical improvement for the
skin and soft tissue injuries from the burn. She advised that the injured areas would need to be
protected from shearing forces and trauma, as the skin would always be thinner and more easily
injured than unscarred skin, and would need to be monitored for life. Dr. Buckley stated that the
grafted areas would not be able to make normal oils and would need increased moisturization
compared to the unscarred skin. Appellant would need pain medication, not only for the
peroneal nerve injury but for paresthesias in the burn scar. While he was back at work, he would
need additional support at work due to intermittent symptoms. Dr. Buckley stated that she
concurred with the report of Dr. Cairns and his impairment ratings.
In a January 16, 2013 report, Dr. H.P. Hogshead, an OWCP medical adviser Boardcertified in orthopedic surgery, reviewed the medical record. He found that maximum medical
improvement was reached on November 1, 2012. Dr. Hogshead agreed with the findings of
Dr. Cairns under Table 8-2 of the A.M.A., Guides and agreed that appellant had four percent
skin impairment of the right arm and 15 percent skin impairment of the right leg. He noted that
under Table 16-12 for a class 2, mild motor deficit of the common peroneal nerve, appellant had
14 percent impairment. Dr. Hogshead stated that combining the 15 percent skin impairment with
the 14 percent peroneal nerve impairment, would result in a total right leg impairment of 27
percent.
On February 11, 2013 OWCP referenced Dr. Buckley’s report and asked that
Dr. Hogshead provide a supplementary opinion regarding the rating for the skin. Dr. Hogshead
advised that Dr. Cairns was correct and that appellant had 4 percent impairment of the right arm
and 15 percent impairment of the right leg.

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On March 5, 2013 OWCP granted appellant schedule awards for 15 percent right leg
impairment and 4 percent right arm impairment. The awards were based on the opinion of
Dr. Cairns. OWCP noted that the case was still under development for an additional schedule
award based solely on skin impairment.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition is used.8
In August 2011 the Secretary of Labor added skin to the list of scheduled members. As
described in FECA Bulletin No. 11-07, a schedule award for the skin may be paid for injuries
occurring on or after September 11, 2001, for up to 205 weeks of compensation.9 FECA bulletin
and OWCP procedures describe the procedure to be followed in evaluating skin impairment.10
The impairment rating should relate only to the skin condition and not to other underlying
impairments associated with disfigurement or loss of function, since these should be addressed
separately and, as described in the A.M.A., Guides and OWCP procedures, the maximum
allowable whole-person impairment for the skin is 58 percent. The final impairment payable for
the skin is determined by dividing the actual whole person impairment of the claimant by the
maximum allowed (58 percent) and then converting that number to a final percentage for skin
impairment.11
Section 8.3 of the A.M.A., Guides provides instruction as to rating impairment due to
scars and skin grafts.12 The section provides that “[w]hen impairment resulting from a burn or
scar is based on peripheral nerve dysfunction or loss of range of motion, evaluate the skin
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

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

8

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

9

FECA Bulletin No. 11-07 (issued August 10, 2011); see supra note 4.

10

FECA Bulletin 11-07, id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.5(c)(4) (February 2013).
11

FECA Bulletin 11-07, supra note 8.

12

Supra note 2 at 162-63.

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impairment separately and combine the impairment rating with that of Chapter 15, The Upper
Extremities or Chapter 16, The Lower Extremities….”
ANALYSIS
The accepted conditions in this case for second degree burns of multiple sites of the
trunk, burns involving 10 to 19 percent of the body surface and second degree burns to multiple
sites. On March 5, 2013 appellant was granted schedule awards for 4 percent right arm
impairment and 15 percent right leg impairment. OWCP advised him that the case was under
development regarding impairment based on his loss of the skin.
The Board notes that Dr. Hogshead adopted the findings by Dr. Cairns that appellant had
4 percent right arm impairment and 15 percent right leg impairment based on his accepted injury.
The medical record does not establish, however, how Dr. Cairns made the impairment ratings to
appellant’s upper and lower extremities with reference to Chapters 15 or 16. Dr. Cairns stated
that his analysis was based on application of Chapter 8 relevant to rating skin impairment. He
did not address either Chapters 15 or 16, which pertained to rating impairment to the upper and
lower extremities. Dr. Cairns’ rating of impairment to appellant’s right arm and right leg was
accepted by Dr. Buckley and Dr. Hogshead. Dr. Hogshead, the medical adviser noted that
appellant’s right leg peroneal injury could be rated under Chapter 16-12, page 535 as 14 percent
impairment; however, he did not fully address the criteria for assigning a class 2 moderate
problem or any of the applicable grade adjustments. Therefore, his rating is of reduced probative
value.
OWCP advised that appellant’s impairment to his skin was under development.
Therefore, absent a final decision, it is not an issue before the Board on this appeal. The Board is
unable to clearly visualize how Dr. Cairns applied the A.M.A., Guides to rate appellant’s right
arm or leg impairment. Dr. Cairns referenced possible peroneal nerve dysfunction with regards
to the right leg on physical examination, but did not make his rating of impairment to the nerve
utilizing Chapter 16, as is referenced under section 8.3. Further, there was no reference to any
specific nerve dysfunction to the right arm as a residual of the accepted conditions. It remains
unclear how the four percent right arm rating was made with specific reference to Chapter 15.
Both Dr. Buckley and Dr. Hogshead agreed with the ratings provided by Dr. Cairns; but
did not address Section 8.3 or fully utilize Chapters 15 or 16 to rate impairment to appellant’s
right upper or lower extremities. For this reason, the case will be remanded to OWCP for further
development on the extent of impairment to appellant’s right arm and right leg. After such
development as deemed necessary, OWCP should issue an appropriate decision on the extent of
his permanent impairment to his right leg and arm based on his accepted conditions.
CONCLUSION
The Board finds this case is not in posture for decision as to the extent of appellant’s
permanent impairment to his right arm or leg.

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ORDER
IT IS HEREBY ORDERED THAT the March 5, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for proceedings
consistent with this decision of the Board.13
Issued: July 29, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

13

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a
member of the Board after May 16, 2014

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 16-1011
Issued: December 6, 2017

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 April 12, 2016 appellant filed a timely appeal from a February 10, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on October 28, 2013, as alleged.
FACTUAL HISTORY
On July 14, 2015 appellant, then a 43-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) for a back injury that allegedly occurred on October 28, 2013 while
“pulling up [her] mail cart into [a] building” on Ocean Avenue, Brooklyn, N.Y. The incident
1

5 U.S.C. § 8101 et seq.

reportedly occurred at 12:30 p.m. In a separate statement, appellant explained that there were
two steps before entering the building. When she tried to pull the cart up the stairs it was too
heavy so she left it in front of the building and proceeded to deliver the mail. At approximately
1:30 p.m. appellant started to feel pain in her neck, right arm, and back. She reportedly slowed
down a little to ease the pain. Around 2:30 p.m., the pain started to worsen, so appellant called
her supervisor, J.V., to request assistance. She claimed to have informed J.V. about what
happened, and was told there was no one to assist her and to keep calling back. At
approximately 3:30 p.m. J.V. and another supervisor met appellant at her route to drop off a relay
bag. Appellant indicated that she explained what happened, but was never asked if she required
medical attention. She stated that she was told to keep calling the employing establishment to
determine if any other carriers had returned. Appellant indicated that she took her time and
completed her route, but was unable to work the following day due to severe pain.
In a July 14, 2015 statement, D.K., customer services operations manager, explained that
appellant had failed to file a claim at the time of the injury, although her manager had asked if
she wished to file a claim. Appellant filed her claim almost two years later. D.K. also noted that
appellant was cleared by her physician to return to full duty with no restrictions a few days after
the incident in 2013. Furthermore, appellant worked overtime almost every day without incident
until November 8, 2013, when she had another incident where she was inattentive and fell on a
customer’s steps. D.K. explained that between the time of the November 2013 accident and
July 14, 2015, appellant never once mentioned having back pain.
In a July 21, 2015 statement, J.V., a supervisor, noted that on October 28, 2013 she
received a call from appellant that her relays were missing from her relay box located on her
route. J.V. located the missing relay bags in the employing establishment and proceeded to
deliver them to appellant on her route. She explained that, when she arrived, appellant was
sitting on steps at a residence and informed her that she needed to “sit for a few because she
fell.” J.V. indicated that she asked appellant if she was okay and also where she had fallen.
Appellant reportedly stated that she had fallen at a residence on Ocean Avenue. She also
reportedly told J.V. that she did not require medical attention and was okay to finish her route,
but would just need extra time. J.V. stated that she told appellant to continue calling the
employing establishment so they could monitor her progress and not to hesitate to call if she felt
any worse and could not complete the assignment. Appellant reportedly replied “Okay,” and she
proceeded to complete her assignment. J.V. indicated that after returning to work, appellant
never informed her that her back was hurting as a result of her October 28, 2013 fall.
In another July 21, 2015 statement, N.J., also a supervisor, corroborated much of what
J.V. noted in her statement. She indicated that she accompanied J.V. on October 28, 2013 to
deliver appellant’s missing relay bags. N.J. similarly noted that appellant informed them she had
fallen at a residence on Ocean Avenue. Appellant reportedly declined medical attention and
advised that all she needed was extra time to complete her assignment.
In a separate undated statement, appellant noted that it had been brought to her attention
that J.V. and N.J. stated that she had been offered medical attention on October 28, 2013, but
refused. She indicated that she returned to work after the accident because she felt she could
work, but it was not until later that she found out how seriously she had been injured. Appellant
also indicated that she was never offered medical attention and was told to continue her route and

2

to keep calling in. She explained that she had no reason to lie about what took place on
October 28, 2013.
By letter dated August 3, 2015, OWCP advised appellant that additional evidence was
needed to establish her claim. It particularly asked her to explain the specific tasks she believed
caused her injury and how the injury occurred. OWCP also indicated that there was no medical
evidence to support her claim.
In an August 7, 2015 response, appellant noted that on October 28, 2013 she was entering
a building on Ocean Avenue. She explained that there were two or three steps entering the
building and she proceeded to pull the cart up the stairs and instantly a sharp pain shot down her
back and she had to pause for a minute because the pain was so strong. Appellant related that
she proceeded to pull the cart up the rest of the steps and she continued to deliver the mail while
taking her time. She noted that she never indicated that she fell down the stairs and she was
never offered medical attention. Instead, appellant explained that she was advised to continue
working and to call the employing establishment to check in.
Appellant believed that N.J. and J.V. had confused her current allegation with her
subsequent November 8, 2013 incident, which was when she had fallen down stairs with the
earlier October 28, 2013 incident. Appellant explained that she was told not to leave the cart
outside and that the cart must always be where she could see it. She explained that her injury did
not occur due a fall, but rather it occurred due to pulling her cart up the steps at a building on
Ocean Avenue, when a sharp pain instantly shot down her back, causing her to have instant pain
in her back. Regarding a delay in reporting, appellant indicated that, after she returned to work
on October 28, 2013, D.K. called her into his office and asked her what had happened. She
noted that she was advised to write it down on a “0-13/buck slip,” which was used for employing
establishment communications. Appellant also explained that she had just started the job in
July 2013 and she had no knowledge of a Form CA-1, so she believed her accident had been
reported. She advised that after inquiring about her claim after she returned from a 16-month
absence, she found out that no Form CA-1 had been filed, just a report of injury.
Appellant also confirmed that the only other injury she sustained was on November 8,
2013, when she fell down the stairs delivering mail. She indicated that a supervisor and two
carriers were on the scene, and she was taken away by ambulance. Furthermore, a claim was
filed for that incident, OWCP File No. xxxxxx800. She denied any prior disabilities and
explained that the fall caused her condition to worsen. Appellant indicated that D.K., N.J., and
J.V. provided false statements when they indicated that she fell down the stairs on
October 28, 2013. She also explained that she never mentioned falling down the stairs on that
date.
Appellant explained that as a carrier’s assistant, she worked six days a week, for up to 10
hours per day. She provided a photograph of a mailbag and denied that she was required to lift
packages up to 70 pounds. Appellant indicated that was a requirement for truck drivers. She
also denied that she was aware of filing claims and indicated that the only thing she was told to
do was to write what happened on an official employing establishment communication form.
She denied being informed of a Form CA-1 by management. Appellant also noted that while she
was cleared for work, her physician indicated that she had a possible sprain. However, her

3

physician was not a surgeon or specialist in neurosurgery. Appellant alleged that she was being
punished by management for reaching out to a higher authority. She requested compensation for
her injury and noted that she was in constant pain on a daily basis.
OWCP received July 1 and 7, 2014 medical reports from Dr. Leonid Chernyak, Boardcertified in anesthesiology and pain medicine, who noted that appellant developed lower back
pain as a result of a work-related injury on November 8, 2013, when she slipped and fell down
stairs while delivering mail. Dr. Chernyak examined appellant and diagnosed lumbosacral
neuritis/radiculopathy and lumbar disc displacement.
A July 10, 2014 lumbar spine magnetic resonance imaging (MRI) scan revealed disc
bulges at L3-4 and L4-5, as well as a large left-sided disc herniation at L5-S1, with neural
impingement.
In a July 10, 2014 report, Dr. Erich G. Anderer, a Board-certified neurosurgeon, noted
that appellant was status post fall in November 2013 after which she had intermittent pain down
the leg, primarily in her ankle. He determined that she had received treatment on and off for
symptoms that were largely controlled, although in the past few months they were recurrent.
Dr. Anderer examined appellant and explained that she had a long standing history of
intermittent left lower extremity radiculopathy, which was increasingly severe and refractory to
nonsurgical therapy. He diagnosed concordant L5-S1 disc herniation and recommended a left
L5-S1 microdiscectomy.
On July 22, 2014 Dr. Anderer performed a left L5-S1 microdiscectomy. In an August 21,
2014 follow-up report, he noted that appellant was making good progress following surgery.
In a September 4, 2015 decision, OWCP found that appellant established that the
October 28, 2013 incident occurred as alleged, but denied her traumatic injury claim because the
medical evidence did not contain a diagnosis in connection with the October 28, 2013
employment incident. Consequently, it denied appellant’s claim for failing to satisfy the medical
component of fact of injury.
Appellant timely requested a review of the written record before a representative of
OWCP’s Branch of Hearings and Review.
OWCP received treatment records from Dr. John Munyak, Board-certified in emergency
medicine. The records cover treatment received on multiple occasions between January 8, 2014
and September 17, 2015. In his initial January 8, 2014 report, Dr. Munyak advised that appellant
was status post injury at work on November 8, 2013 while delivering mail in the dark. She was
going down some steps and missed a step. Appellant twisted her left foot and landed on the right
knee and was unable to stand at that point. Dr. Munyak treated appellant for her left ankle and
right knee conditions. In his February 12, 2014 follow-up treatment notes, he indicated that
appellant’s right knee pain was a little bit worse after a slip and fall injury at work.
During a May 14, 2014 follow-up visit, Dr. Munyak noted that appellant had three days
of entire posterior left lower extremity pain radiating from the back. Appellant reportedly stated
that this was from the “primary injury,” which had previously resolved but had since returned.
He explained that appellant explained that she had not mentioned it earlier because it just went
4

away at the date of injury. Dr. Munyak reported that it was definitely a new development due to
appellant’s favoring the way she was walking with the right knee. On June 18, 2014 appellant
continued to complain of lower back pain radiating down her left lower extremity. Dr. Munyak
reiterated that appellant stated that she had this with the primary injury, which had resolved but
had since returned. He commented “so it is definitely related to the work injury initially
described.” Dr. Munyak explained that the left lower extremity was having sciatic-type
symptoms due to appellant’s favoring the right knee.
Appellant returned to see Dr. Munyak following her July 2014 lumbar surgery. In
August 27, 2014 treatment notes, Dr. Munyak reported that her back pain decreased following
surgery, as well as her left lower extremity radiculopathy. However, appellant’s right knee was
still giving way. When she returned on October 17, 2014, appellant reported three days of left
lower extremity radiculopathy, posterior all the way to her foot. Dr. Munyak commented that
there was no specific injury/incident to cause this pain now after surgery. He further noted that
the pain goes up in the thoracolumbar spine as well, which it had not done before. Appellant
continued to complain of low back and/or left lower extremity radiculopathy during follow-up
visits on November 10 and December 5, 2014. In the November 10, 2014 notes, Dr. Munyak
reiterated that appellant had “pain radiating down the lower extremity on the initial day at the fall
at work, but since it resolved later that day, she did not mention it to anyone until all of a sudden
it kicked in again with favoring her right knee and left ankle injury….”
On March 31, 2015 Dr. Munyak reported ongoing low back and right knee pain, with
painful range of motion in both areas. He referred appellant for pain management. When
appellant returned for follow-up on June 5, 2015 there was no mention of back pain, just
persistent right knee pain. On August 26, 2015 she again complained of right knee and low back
pain, with painful low back range of motion.
In his September 17, 2015 follow-up treatment notes, Dr. Munyak noted that appellant
had a pain management appointment in a week for her persistent and worsening lower back and
right knee pain due to a work-related right knee injury. He also noted that appellant had fallen in
a bathroom on July 20, 2015 “because her knee locked up and [had] been worsening since the
work-related injury when she fell.” Dr. Munyak opined that appellant’s back and knee
complaints directly resulted from her work-related injury.
By decision dated February 10, 2016, an OWCP hearing representative affirmed, as
modified, the September 4, 2015 decision. She reversed with the claims examiner’s initial
finding that appellant established that the October 28, 2013 incident occurred as alleged. The
hearing representative found that the evidence did not demonstrate that a specific event, incident,
or exposure occurred at the time, place, and in the manner alleged.
LEGAL PRECEDENT
A claimant seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
2

Id.

5

evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a
personal injury.5 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.6
ANALYSIS
On her July 14, 2015 Form CA-1, appellant indicated that she injured her back on
October 28, 2013 while pulling her mail cart into a building located on Ocean Avenue. In a
separate statement, appellant indicated there were two steps at the entrance to the building, and
when she tried to pull the cart up the stairs it was too heavy, so she left the cart in front of the
building and proceeded to deliver the mail. An hour later (1:30 p.m.), appellant reportedly began
to experience neck, right arm, and back pain. She slowed down a little to ease the pain, and
around 2:30 p.m. appellant called her supervisor to request assistance. The employing
establishment controverted the claim because appellant waited almost two years before filing her
Form CA-1 and because she had not previously mentioned having back pain.
In the July 14, 2015 statement, D.K., the customer services operations manager, noted
that appellant failed to file a claim at the time of injury “although [her] manager asked if she
wished to file a claim.” D.K. further noted that appellant had been cleared by her physician to
return to full duty with no restrictions a few days after her accident in 2013. Appellant
reportedly worked overtime almost every day without incident until November 8, 2013 when she
fell on a customer’s steps. This latter incident was the subject of a separate traumatic injury
claim (OWCP File No. xxxxxx800), which is not currently before the Board.7

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
6

Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

The November 8, 2013 traumatic injury claim was accepted for left ankle and right knee sprains.

6

In the July 21, 2015 statement, appellant’s supervisor, J.V., recalled having met appellant
along her route on October 28, 2013. Appellant had reportedly called in to advise that some
relay bags were missing. J.V. found the missing relay bags and delivered them to appellant.
When she arrived, appellant was sitting on some steps because she had reportedly fallen at the
building, which was located at the beginning of appellant’s route. J.V. stated that appellant
declined medical attention at the time and advised that she just needed extra time to finish her
assignment because she was moving slower. J.V. further stated that after returning to work
appellant never informed her that her back was hurting as a result of her “fall on
[October 28, 2013].” In her July 21, 2015 statement, J.V. did not mention appellant’s subsequent
November 8, 2013 work-related fall.8
When questioned by OWCP about whether she was injured pulling a mail cart or whether
she had fallen on October 28, 2013, appellant stated on August 7, 2015 that she never told J.V. or
N.J. that she had fallen. Appellant further stated that both supervisors arrived on the scene
because of missing relay bags and that she informed them she had injured her back pulling up the
mail cart. She indicated that they were either lying or had confused the October 28, 2013
incident with the details of her November 8, 2013 work-related fall. Appellant reiterated that she
injured her back on October 28, 2013 pulling the mail cart up two to three steps entering the
building located on Ocean Avenue.
In its September 4, 2015 decision, OWCP found appellant’s response to its questionnaire,
in conjunction with her previously submitted personal statement(s), sufficient to establish the
factual portion of her claim. Accordingly, it found that the record supported that the October 28,
2013 injury and/or event(s) occurred as alleged. However, in a February 10, 2016 decision, the
hearing representative subsequently reversed.
The Board finds that the district office’s initial determination that appellant established
the factual component of her traumatic injury claim was correct. There is no dispute that
appellant contemporaneously reported having been injured on October 28, 2013 at a building on
Ocean Avenue while performing her assigned duties. There is a question as to whether the
incident involved pulling her mail cart or an undescribed fall. Appellant specifically denied
having told anyone she had fallen on October 28, 2013. She plausibly explained that J.V. and/or
N.J. perhaps confused the October 28, 2013 employment incident with her November 8, 2013
work-related fall.9
The Board finds that the record supports that on October 28, 2013 at approximately
12:30 p.m., appellant experienced discomfort while maneuvering her mail cart at the entrance of
a building located on Ocean Avenue, Brooklyn, N.Y. The Board further finds that although
appellant established the factual component of her traumatic injury claim, she has failed to meet
8

Another supervisor, N.J., accompanied J.V. when she met appellant on October 28, 2013 along her delivery
route. N.J. similarly stated that appellant claimed to have fallen, that she declined medical attention, and merely
requested extra time to complete her assignment. N.J. also did not comment or otherwise reference appellant’s
November 8, 2013 work-related fall.
9

The Board notes that while D.K. mentioned the subsequent November 8, 2013 incident in his July 14, 2015
statement, neither J.V. nor N.J. mentioned appellant’s November 8, 2013 fall in their respective July 21, 2015
statements.

7

her burden of proof to establish an injury in connection with the October 28, 2013 employment
incident.
The current record does not include any contemporaneous medical evidence with respect
to the October 28, 2013 employment incident. The earliest medical evidence of record was
Dr. Munyak’s January 8, 2014 report of appellant’s initial visit following a November 8, 2013
work-related fall. He reported that appellant was delivering mail in the dark when she missed a
step, twisted her left foot, and landed on her right knee. At the time, Dr. Munyak made no
mention of a then-current or prior low back injury. He first reported low back and/or left lower
extremity sciatic-type symptoms on May 15, 2014, which at the time appellant related to her
“primary injury” (November 8, 2013). Dr. Munyak would later explain that appellant did not
initially report her back complaints because they resolved soon after the work-related injury. He
continued to treat appellant for her low back, left lower extremity radiculopathy, and right knee
complaints through September 17, 2015. None of Dr. Munyak’s treatment notes specifically
referenced the October 28, 2013 employment incident.
Dr. Chernyak examined appellant on July 1, 2014 and again on July 7, 2014. In both
reports he noted that appellant developed lower back pain as a result of a November 8, 2013
work-related injury when she slipped and fell down the stairs while delivering mail.
Dr. Chernyak diagnosed lumbosacral neuritis/radiculopathy and lumbar disc displacement. He
did not mention an October 28, 2013 employment incident in relation to appellant’s diagnosed
lumbar condition.
Dr. Anderer initially examined appellant on July 10, 2014, and he reviewed the results of
a recent lumbar MRI scan. He described appellant as status post fall in November 2013 after
which she began having intermittent pain down the left leg, primarily in her ankle. Dr. Anderer
diagnosed L5-S1 disc herniation and recommended surgery, which he subsequently performed
on July 22, 2014. In his August 21, 2014 report, Dr. Anderer indicated that appellant was
making good progress following her recent L5-S1 microdiscectomy. None of the abovereferenced reports from Dr. Anderer mentioned an October 28, 2013 employment incident as a
possible cause of appellant’s lumbar condition.
Because the medical evidence of record either does not mention the October 28, 2013
employment or it specifically relates appellant’s lumbar and left lower extremity complaints to a
November 8, 2013 work-related fall. Appellant has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant established that the October 28, 2013 employment
incident occurred as alleged. Accordingly, the hearing representative’s February 10, 2016
decision is modified to reflect this finding. However, appellant failed to meet her burden of
proof to establish an injury in connection with the accepted October 28, 2013 employment
incident.
8

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: December 6, 2017
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0232
Issued: July 11, 2019

Case Submitted on the Record

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

JURISDICTION
On November 9, 2018 appellant, through counsel, filed a timely appeal from a May 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish cervical, lumbar,
and bilateral upper and lower extremity conditions causally related to the accepted May 31, 2015
employment incident.
FACTUAL HISTORY
On June 1, 2015 appellant, then a 53-year-old nurse aid, filed a traumatic injury claim
(Form CA-1) alleging that on May 31, 2015 she sustained injuries to her neck, both shoulders, low
back, and legs while caring for patients while in the performance of duty.3 She described duties
which included bathing and cleaning, as well as turning, pushing, and pulling patients up in bed.
Appellant did not stop work.
In reports dated June 1 and 18, 2015, Brendalee Figueroa, an advanced registered nurse
practitioner, reviewed 2014 and 2015 diagnostic tests and medical records, and provided
examination findings. She noted that appellant had a history of L5-S1 herniated nucleus pulposus.
Appellant’s diagnoses included anxiety and depression due to chronic pain and work-related
injuries, cervical disc with myelopathy, bilateral upper extremity radiculopathy, bilateral shoulder
impingement, aggravation of left shoulder tenosynovitis, bilateral lower extremity radiculopathy,
and lumbar disc syndrome with myelopathy. Ms. Figueroa opined that appellant’s work duties on
May 31, 2015 caused cervical spine and bilateral shoulder injuries and aggravated her prior
lumbosacral condition. She continued to submit reports to the record which provided diagnoses
and which opined that appellant sustained a traumatic injury on May 31, 2015.
In a report dated June 8, 2015, Dr. Sara Vizcay, a Board-certified family medicine
physician, noted an injury date of May 31, 2015. She reviewed appellant’s medical records and
provided examination findings which included C4-6 tenderness, increased tenderness on neck
flexion, some left shoulder subluxation, tenderness on midline dorsolumbar spine, and moderate
paraspinal spasm intensity at L5-S1 trigger points. Dr. Vizcay diagnosed cervical and thoracic
disc disease with myelopathy and herniation, bilateral upper extremity radiculopathy, bilateral
shoulder impingement, aggravation of left shoulder tenosynovitis, depression and anxiety due to
chronic pain and work-related injuries, and lumbar disc syndrome with myelopathy. She noted
that appellant’s degenerative joint disease, lumbar disc disease, and stenosis placed her at risk for
aggravation or new injuries with lifting, pushing, or pulling more than 20 pounds. Dr. Vizcay
explained that the work of caring for patients weighing at least 80 pounds and heavy workload on
May 31, 2015 placed a strain on her already weakened musculoskeletal system, which resulted in
a new injury and aggravation of a prior work injury.
The record contains magnetic resonance imaging (MRI) scans dated June 9, 2015 of
appellant’s cervical, lumbar, and thoracic spines revealed C3-4 disc bulge, C4-5 posterocentral
3

The record reflects that appellant had prior claims which were accepted for lumbar and thoracic conditions. An
April 12, 2009 traumatic injury claim was accepted for lumbar sprain under OWCP File No. xxxxxx661; an April 1,
2010 occupational disease claim was accepted for thoracic lumbar sprain under OWCP File No. xxxxxx064; and a
February 11, 2015 traumatic injury claim was accepted for lumbar sprain under OWCP File No. xxxxxx864. These
claims have not been administratively combined with the current claim.

2

protrusion-type herniation with annulus tear, C5-6 disc bulge with shallow posterocentral
protrusion-type herniation, L1-2 protrusion type herniation with annulus tear, mild worsening of
disc herniations and resultant spinal canal stenosis at C5-6 and C6-7, L4-5 disc bulge, L5-S1 right
paracentral protrusion-type herniation with annulus tear, T2-3 protrusion-type herniation, T5-6
disc bulge, and possible acute injury.
In a June 10, 2015 work capacity evaluation (Form OWCP-5c), Dr. Kevin L. Scott, a
physician Board-certified in orthopedic surgery and family medicine, placed appellant off work.
He diagnosed cervical disc syndrome with myelopathy, bilateral shoulder radiculopathy, bilateral
upper extremity neuritis, and lumbar disc syndrome with myelopathy.
A June 17, 2015 MRI scan of appellant’s right shoulder diagnosed distal supraspinatus
tendinitis, marrow edema with hypertrophic changes at the acromioclavicular joint causing
subacromial space narrowing, SLAP type 1 superior labral tear, and mild subacromial bursitis. A
June 17, 2015 MRI scan of the left shoulder revealed supraspinatus tendinosis/tendinitis, no labral
tear, and marrow edema with hypertrophic changes at the acromioclavicular joint causing
subacromial space narrowing.
In a development letter dated June 26, 2015, OWCP informed appellant that initially her
claim appeared to be a minor injury that resulted in minimal or no lost time from work and was
administratively handled to allow payment of a limited amount of medical expenses. However,
appellant’s claim was being reopened for adjudication because the medical bills had exceeded
$1,500.00. OWCP advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. It afforded appellant 30 days to provide the necessary
information.
OWCP thereafter received additional evidence. Dr. Scott, in a June 10, 2015 report, noted
a May 31, 2015 date of injury. He provided examination findings and diagnosed cervical disc
syndrome with myelopathy, bilateral upper and lower extremity radiculopathy, aggravation of left
shoulder tenosynovitis, and lumbar and thoracic disc syndrome with myelopathy and herniated
disc. Dr. Scott determined, based on appellant’s statement and examination findings, that she
sustained an aggravation of her lumbosacral spine and injuries to both shoulders and her cervical
spine from work activities performed on May 31, 2015. He concurred with both Dr. Vizcay and
Ms. Figueroa that appellant’s preexisting degenerative joint disease, stenosis, and lumbar disc
disease made her susceptible to new injuries or aggravation from lifting, pulling, or pushing more
than 20 pounds. Dr. Scott noted that the work appellant performed on May 31, 2015 involved care
for patients weighing at least 80 or 90 pounds and was the direct cause of her injury.
Dr. Vizcay, in a June 29, 2015 report, provided examination findings which included C46 tenderness, increased tenderness on neck flexion, some left shoulder subluxation, tenderness on
midline dorsolumbar spine, and moderate paraspinal spasm intensity at L5-S1 trigger points. She
noted May 31, 2015 as the date of injury and diagnosed cervical and thoracic disc disease with
myelopathy and herniation, bilateral upper extremity radiculopathy, bilateral shoulder
impingement, aggravation of left shoulder tenosynovitis, depression and anxiety due to chronic
pain and work-related injuries, and lumbar disc syndrome with myelopathy.

3

In a June 30, 2015 duty status report (Form CA-17), Dr. Vizcay noted a May 31, 2015
injury date and placed appellant off work.
On July 3, 2015 Dr. Scott completed a Form OWCP-5c and indicated that appellant was
disabled from work. In a narrative report of the same date, he provided physical examination
findings and diagnosed cervical, lumbar, and thoracic disc syndrome with myelopathy and
herniated disc, bilateral shoulder impingement syndrome, bilateral upper and lower extremity
radiculopathy, and aggravation of left shoulder tenosynovitis.
By decision dated July 31, 2015, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that the diagnosed medical conditions had been
caused or aggravated by the accepted May 31, 2015 employment incident.
In OWCP-5c forms dated August 3, 6, and 18, 2015, Dr. Vizcay placed appellant off work.
She diagnosed cervical and lumbar stenosis with multiple levels of disc herniation, an antalgic
gait, and bilateral upper extremity neuritis. Dr. Vizcay, in an August 6, 2015 report, again related
that appellant’s diagnoses were due to work-related injuries. On August 11, 2015 she opined that
appellant was temporarily totally disabled due to lumbar, cervical, and other work injuries
sustained on February 11 and May 31, 2015.
In OWCP-5c forms dated June 10, and August 19 and 26, 2015, Dr. Scott found appellant
totally disabled from work.
On August 26, 2015 appellant requested reconsideration and submitted an attending
physician’s report (Form CA-20) from Dr. Vizcay noting a May 31, 2015 injury date and
diagnoses of cervical disc syndrome, bilateral shoulder impingement, and lumbar disc syndrome
with impingement. Dr. Vizcay indicated that appellant had preexisting conditions or a prior injury,
and noted a February 2015 injury. She also checked a box marked “yes” indicating that the
diagnosed conditions had been caused or aggravated by an employment activity.
On September 2, 2015 Dr. Vizcay found that appellant was disabled from working due to
her February 11, 2015 employment injury. She, in OWCP-5c forms dated September 24 and
October 2, 2015, found appellant disabled from work.
By decision dated October 21, 2015, OWCP denied modification of its prior decision.
In an October 27, 2015 report, Dr. Jay Parekh, a Board-certified pain medicine physician
and anesthesiologist, noted that appellant had been referred by Ms. Figueroa. He provided
examination findings and noted that the pain began in 2009 due to herniated discs from moving
patients. Dr. Parekh diagnosed chronic pain syndrome and lumbar spondylosis.
Dr. Vizcay, in a November 12, 2015 Form OWCP-5c, found appellant temporarily totally
disabled from work.
In a report dated January 27, 2016, Dr. David P. Kalin, a Board-certified family practice
physician, based upon a review of medical records and a physical examination, diagnosed chronic
cervical musculoskeletal ligamentous strain, C3-4 and C4-5 disc bulges, C4-5 posterior central
protrusion-type herniation with annulus tear, C6-7 posterior/left central paracentral protrusion4

type herniation with annulus tear, mild bilateral neural foraminal narrowing, C5-6 and C6-7 spinal
canal stenosis, chronic thoracic ligamentous musculoskeletal strain, T3-4 posterior central-type
herniation, T5-6 disc bulge, chronic lumbosacral musculoskeletal ligamentous strain, L1-2 right
paracentral protrusion-type herniation with annulus tear, L4-5 disc bulge, L5-S1 right paracentral
protrusion-type herniation with annulus tear, L5-S1 diffuse mild degenerative joint disease,
significant L5-S1 disc space narrowing, bilateral shoulder impingement syndrome, and history
intermittent right upper extremity and bilateral low extremity dysesthesia. He opined that
appellant’s February 11, 2015 work-related injury had aggravated these conditions, which he noted
were originally caused by an April 12, 2009 employment injury. Dr. Kalin reported that on
May 31, 2015 she was put in a nonwork status due to progressively worsening right leg and lower
back pain while performing her usual work duties. He noted that appellant continued to be in a
nonwork status. Dr. Kalin opined that on February 11, 2015 she aggravated her April 12, 2009
employment injury, which was reaggravated by the repetitive stress of her work duties after her
return to work for the period March 31 until May 31, 2015.
In a March 8, 2016 Form OWCP-5c, Dr. Scott placed appellant off work.
By decision dated March 21, 2017, OWCP denied modification finding that the evidence
of record did not establish a diagnosed condition due to the accepted May 31, 2015 employment
incident.
A January 10, 2018 report by Ms. Figueroa and Dr. Sydel Legrand, a Board-certified
family practice physician, detailed physical examination findings and noted review of medical
reports and diagnostic tests. Appellant’s diagnoses were related as cervical disc disease with
herniation and neuritis, lumbar disc syndrome with herniation and neuritis, bilateral upper and
lower extremity radiculopathy, bilateral shoulder impingement, bilateral shoulder tendinitis, right
shoulder ligament and/or tendon tear, and anxiety and depression due to work-related injuries and
chronic pain. Dr. Legrand and Ms. Figueroa opined that appellant was totally disabled due to her
chronic conditions which they attributed to her work. They concurred with Dr. Patel’s May 9,
2015 opinion that her May 31, 2015 employment injury had aggravated her lumbar herniated disc
disease with neuritis and was the cause of the bilateral shoulder and cervical conditions.
On March 21, 2018 OWCP received appellant’s request for reconsideration.
By decision dated May 14, 2018, OWCP denied modification of its March 21, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

5

to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.9
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant submitted reports by Dr. Vizcay and Dr. Scott in support of her claim. In her
June 8, 2015 report, Dr. Vizcay noted appellant’s employment history and prior employmentrelated injuries, and presented examination findings. She diagnosed cervical and thoracic disc
disease with myelopathy and herniation, bilateral upper extremity radiculopathy, bilateral shoulder
impingement, aggravation of left shoulder tenosynovitis, depression and anxiety due to chronic
pain and work-related injuries, and lumbar disc syndrome with myelopathy. Dr. Vizcay opined
that the May 31, 2015 traumatic injury aggravated appellant’s preexisting lumbosacral work injury
and caused cervical and bilateral shoulder injuries. She explained that appellant had weakened
musculoskeletal system and degenerative joint disease due to prior injuries. Moreover, appellant
was at risk for aggravation or new injuries with lifting, pushing, or pulling more than 20 pounds
due to her preexisting lumbar conditions and degenerative joint disease. Dr. Vizcay further
explained that appellant’s work duties on May 31, 2015 of caring for patients weighing at least 80
pounds and heavy workload on May 31, 2015 placed a strain on her already weakened
musculoskeletal system, resulting in a new injury and aggravation of a prior work injury.
In his June 10, 2015 report, Dr. Scott reviewed appellant’s employment history, prior
employment-related injuries, and medical records, and presented examination findings. He
diagnosed cervical disc syndrome with myelopathy, aggravation of left shoulder tenosynovitis,
bilateral upper and lower extremity radiculopathy, and lumbar and thoracic disc syndrome with
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

6

myelopathy and herniated disc. Based on examination findings and appellant’s statement
regarding her work duties, Dr. Scott attributed her bilateral shoulder and cervical injuries and
aggravation of her lumbosacral spine to the work duties performed on May 31, 2015. He explained
that her preexisting lumbar conditions and degenerative joint disease made her susceptible to
aggravation or new injuries when lifting, pulling, or pushing more than 20 pounds. As appellant’s
duties on May 31, 2015 involved caring for patients weighing at least 80 pounds, Dr. Scott opined
that this directly caused an aggravation of her lumbosacral spine and cervical and bilateral shoulder
injuries.
The Board finds that Dr. Vizcay and Dr. Scott provided affirmative opinions on causal
relationship which described the mechanism of injury, findings upon examination, and explained
how the accepted May 31, 2015 employment incident produced mechanical forces which caused
appellant’s diagnosed medical conditions. The Board finds that their opinions, while not
sufficiently rationalized to meet her burden of proof, are sufficient to require further development
of the case record.10
In addition, OWCP’s procedures provide that cases should be administratively combined
when correct adjudication of the issues depends on frequent cross-referencing between files.11 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.12
On remand OWCP shall administratively combine appellant’s accepted claims. It should
then prepare an updated statement of accepted facts and refer her to a second opinion physician
for an evaluation and opinion regarding causal relationship. After this and any other further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

C.M., Docket No. 18-1516 (issued May 8, 2019); S.S., Docket No. 17-0332 (issued June 26, 2018). See also
John J. Carlone, supra note 8; Horace Langhorne, 29 ECAB 820 (1978).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
12

Id.; K.T., Docket No. 17-0432 (issued August 17, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2018 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further action consistent with
the decision of the Board.
Issued: July 11, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Austin, TX, Employer
__________________________________________

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

Docket No. 08-2532
Issued: March 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 29, 2008 appellant filed a timely appeal from a June 26, 2008 decision of
the Office of Workers’ Compensation Programs denying her claim for an injury on
April 9, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained an injury on April 9, 2006 in the performance of
duty as alleged.
FACTUAL HISTORY
On May 8, 2006 appellant, then a 51-year-old manual letter clerk, filed a traumatic injury
claim alleging that on April 9, 2006 she lost consciousness at work because of some unidentified
substance that she inhaled. She subsequently indicated that she inhaled chlorine, floor wax or
some other cleaning substance.

The employing establishment controverted appellant’s claim, stating that she had not
been exposed to any chemicals during her work shift on April 9, 2006. The record reflects that
management contacted Cheryl Winget, manager of distributions operations, Robert Conley,
maintenance manager and other individuals involved in building maintenance. They determined
that there was no use of chlorine, wax or other cleaning products or noxious substances in the
workplace on April 9, 2006.
In an April 9, 2006 report, an emergency medical technician stated that appellant smelled
chlorine at work and then experienced a seizure. In an emergency room report dated April 9,
2006, Dr. James B. Balarbar provided a history that someone was mopping the floor at work that
day and appellant was exposed to the odor of chlorine. Appellant had a preexisting condition of
partial seizure disorder which she stated was triggered by “strong smells.” Dr. Balarbar provided
findings on physical examination and diagnosed an acute allergic reaction with anaphylaxis.
On April 13, 2006 Dr. Richard D. Tyer, a neurologist, noted that appellant had a history
of complex partial seizures which likely began when she was exposed to a toxic substance at age
33. He stated that her current work environment appeared to trigger recurrent seizures.
In a May 9, 2006 duty status report, a neurologist noted that appellant had an abnormal
electroencephalogram with clinical findings of complex partial seizures. He diagnosed partial
epilepsy with impairment of consciousness. The history provided was that on April 9, 2006
appellant experienced a seizure after inhaling fumes or odors from an unidentified substance.
By decision dated June 29, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that she sustained a medical condition causally related to
the April 9, 2006 work incident.
Appellant requested an oral hearing that was held on April 3, 2007. She provided a
written statement addressing her history of allergic reactions. Appellant asserted that she was
exposed to the smell of chlorine on April 9, 2006 and became ill as a result.
In reports dated August 10 and 11, 2006, Dr. Dan R. Baker, an attending family
practitioner, stated that appellant had a long history of reactions to environmental stimuli,
including smells, fragrances and fumes. On April 9, 2006 appellant was exposed to a chlorine
odor at work which caused an allergic reaction resulting in nasal irritation, a headache, irritated
eyes and loss of consciousness. Dr. Baker diagnosed allergic rhinitis, allergic reaction and
complex partial seizures.
In reports dated August 30 and 31, 2006, Dr. Balarbar stated that he examined appellant
in the emergency room on April 9, 2006 after she had an allergic reaction. Appellant developed
difficulty breathing due to exposure to chlorine fumes while someone was mopping the floor at
work.
By decision dated May 31, 2007, an Office hearing representative affirmed the June 29,
2006 denial of appellant’s claim, as modified to reflect that she failed to establish that she was
exposed to any chemicals at work on April 9, 2006.

2

Appellant requested reconsideration.
affirmed the May 31, 2007 decision.1

By decision dated June 26, 2008, the Office

LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,3 including that she is an “employee” within the meaning of
the Act4 and that she filed her claim within the applicable time limitation.5 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.7 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
ANALYSIS
Appellant alleged that on April 9, 2006 she lost consciousness at work when she was
overcome by the smell of chlorine of some other substance and had to be treated at a local
emergency room.
The employing establishment advised that appellant had not been exposed to any
chemicals during her work shift on April 9, 2006. The record reflects that management
contacted individuals involved in building cleaning and maintenance who determined that there
1

Subsequent to the June 26, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB __ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
4

See M.H., 59 ECAB __ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB __ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231
(1954); see 5 U.S.C. § 8122.
6

G.T., 59 ECAB __ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB __ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

3

was no use of chlorine, wax or other cleaning products or noxious substances in the workplace
on April 9, 2006.
The medical reports of record contain a history provided by appellant that she was
exposed to chlorine, floor wax or some other substance on April 9, 2006 while at work that
caused her to have a seizure and be transported to the emergency room. However, the evidence
does not establish the first component of fact of injury, that she actually experienced the
employment incident at the time, place and in the manner alleged. There is no probative
evidence that appellant was exposed to chlorine or any other chemical at work on April 9, 2006.
Therefore, it is unnecessary to address the second component, the medical evidence, because it is
based on a history that is not established as factual.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty on April 9, 2006 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 26, 2008 is affirmed.
Issued: March 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 07-2150
Issued: February 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 20, 2007 appellant timely appealed the June 7, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On March 15, 2007 appellant, a 50-year-old registry clerk, filed an occupational disease
claim for an injury to her right knee. She described her injury as a right medial meniscal tear,
which was surgically repaired on February 27, 2007. Appellant also noted skin discoloration or
a bruise on her right leg. She listed January 15, 2006 as the date she first realized her knee
condition was caused or aggravated by her employment. Appellant attributed her right knee
injury to prolonged standing and walking for many years. She also believed the concrete floors
at work had a lot to do with the development of her right knee condition. Her work involved

pulling sacks, pushing hand trucks and hampers and raising bascarts. She also indicated that she
would occasionally bump her leg or knee while working, but not think much of it at the time.
Appellant reportedly had very little discomfort until the past 18 months, when her knee pain
progressed for being tolerable to causing an occasional limp. In the summer of 2006, appellant
treated her knee with ice packs and was later referred to an orthopedic surgeon.
Appellant submitted various treatment records from Dr. Scott Goldman, a Board-certified
orthopedic surgeon, who diagnosed and treated appellant’s right knee meniscal tear.
Dr. Goldman’s records covered the period January 24 to May 21, 2007, and included x-ray
findings, magnetic resonance imaging scans, examination reports dated January 24, February 2
and 27 and March 7, 2007 and a note excusing appellant from work for the period February 5 to
April 5, 2007. The Office also received appellant’s physical therapy records for March and
April 2007.
In a May 21, 2007 report, Dr. Goldman explained that appellant had been under his care
for a painful condition affecting her right knee. He noted that she had a meniscal tear, for which
she underwent arthroscopic surgery. Dr. Goldman stated that it was medically necessary for
appellant to be off work and that she continued to be off work due to the right knee medial
meniscal tear. He anticipated seeing appellant again in two weeks and at that time she might be
able to resume work. Dr. Goldman reiterated that it was medically necessary for appellant to be
off work due to her right knee meniscal tear.
In a decision dated June 7, 2007, the Office denied appellant’s claim because the medical
evidence did not establish that her right knee injury was employment related.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.2
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;

1

5 U.S.C. §§ 8101-8193 (2000).

2

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.

2

and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.3
ANALYSIS
The evidence of record does not include a physician’s opinion that addresses the cause of
appellant’s right knee injury. Despite the Office’s request for medical evidence addressing the
relationship between appellant’s injury and her employment, no such information has been
submitted to date. None of the various treatment records provided by Dr. Goldman address
appellant’s employment duties or otherwise explain how her right knee condition was caused or
aggravated by her work as a clerk. Although appellant has identified employment factors that
she believes caused her injury, she has failed to establish entitlement to benefits under the Act.4
The record is devoid of any medical evidence linking appellant’s right knee injury to her federal
employment. Accordingly, the Office properly denied her occupational disease claim.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 7, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

3

Victor J. Woodhams, supra note 2.

4

The belief of a claimant that a condition was caused or aggravated by his or her employment is not sufficient to
establish causal relationship. See Robert A. Boyle, 54 ECAB 381 (2003).

3