United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 16-0336
Issued: June 24, 2016

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 December 15, 2015 appellant, through counsel, filed a timely appeal of a
November 3, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from the last merit decision dated November 5, 2014
to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal counsel argues the decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 19, 2013 appellant, then a 54-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on November 20, 2013 he sustained a lower back strain
due to picking up a tray of mail which had fallen to the floor. He stopped work on
November 30, 2013. Appellant first sought treatment on December 3, 2013.
An OWCP Form CA-16, authorization for examination, dated December 9, 2013,
indicated that appellant was authorized to visit a Veterans Administration Hospital in
Birmingham, AL.2 On the second page of the form dated December 20, 2013, a physician3
reported that appellant bent over at work and felt a back strain. The physician noted review of
x-rays and diagnosed acute lower back pain. The physician checked a box marked “yes” when
asked if he believed the condition was caused or aggravated by the employment incident.
In support of his claim appellant submitted December 4, 2013 discharge instructions from
St. Vincent’s Birmingham emergency room; a December 3, 2013 disability note;4 a disability
note and report dated December 6, 2013 from Dr. Cheryl M. Law, a treating Board-certified
family medicine practitioner; and an unsigned December 17, 2013 duty status form (Form
CA-17).
A December 20, 2013 progress report by Dr. Matthew Skinner, a primary care resident,
which was cosigned by Dr. Terrence M. Shaneyfelt, a Board-certified internist, diagnosed low
back pain and probable lumbar disc herniation. The report noted that appellant sustained a
twisting injury at work on November 23, 2013, provided examination findings, and listed
appellant’s complaints.
A December 28, 2013 magnetic resonance imaging (MRI) scan revealed left-sided L4-5
intraforaminal disc herniation.
By letter dated January 9, 2014, OWCP informed appellant that the evidence of record
was insufficient to establish his claim. Appellant was advised as to the medical and factual
evidence required and was afforded 30 days to provide this information.
OWCP subsequently received a December 20, 2013 medical treatment form (Form
CA-17)5 and a February 3, 2014 attending physician’s report (Form CA-20). The Form CA-17
provided work restrictions, history of injury, and diagnosis of 722.93, and checked next to a box
marked “yes” that the diagnosed condition corresponded with the history of injury given by
appellant.
2

A properly completed Form CA-16 authorization may constitute a contract for payment of medical expense to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on
the claim. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).
3

The signature on the form is illegible.

4

The last name listed is not totally legible.

5

The signature on the form is illegible.

2

In the Form CA-20, Dr. Shannon Williams, a treating physician, and Dr. Teresa Bryan, a
treating Board-certified internist, diagnosed left L4 radiculopathy, L4-5 intervertebral disc
herniation, and disc bulge. They opined that appellant was totally disabled from work
commencing December 3, 2013 and ongoing. A history of the November 20, 2013 injury and
physical examination findings were given.
By decision dated February 11, 2014, OWCP denied appellant’s claim as it found the
evidence insufficient to establish a causal relationship between the diagnosed lumbar conditions
and the November 20, 2013 incident.
In a form dated March 4, 2014, appellant requested a telephonic hearing before an OWCP
hearing representative, which was held on September 22, 2014.
In a March 10, 2014 form report, Drs. Bryan and Williams diagnosed left-sided L4-5
intraforaminal disc herniation with nerve root compression and radicular pain, which they
attributed to a November 23, 2013 employment incident.
In an April 10, 2014 report, Dr. Martin P. Jones, a treating Board-certified orthopedic
surgeon, provided physical examination findings and employment injury history and reviewed
objective tests. He diagnosed L4-5 extruded lateral disc herniation with L4 nerve root
compression and recommended surgery.
In a May 9, 2014 report, Drs. Bryan and Williams diagnosed lumbar radiculopathy which
they attributed to appellant bending over at work to pick up a tray. They observed that appellant
has had sharp shooting pain radiating into his left leg and constant left-sided back pain since the
November 2013 bending over and lifting incident. Drs. Bryan and Williams noted that prior to
the November 2013 employment incident appellant had no problems with the duties of his job,
but since the incident has experienced significant pain, difficulty walking, and substantial
decrease in his quality of life. They opined that appellant met all of the criteria to establish that
his diagnosed lumbar condition had been caused by the employment incident and was entitled to
benefits.
By decision dated November 5, 2014, an OWCP hearing representative affirmed the
denial of appellant’s claim.
In a letter dated October 16, 2015, appellant’s counsel requested reconsideration. In
support of his request, counsel resubmitted a May 9, 2014 report and a February 3, 2014 Form
CA-20 report from Drs. Bryan and Williams.
By decision dated November 3, 2015, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
6

5 U.S.C. § 8128. Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.

3

interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.7 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received by OWCP within one
year of the date of that decision.8 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.9
ANALYSIS
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In his October 16, 2015 application for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. He did not advance a pertinent
and relevant new legal argument not previously considered by OWCP. Counsel’s argument is
that appellant’s lumbar injury was causally related to the November 20, 2013 employment
incident. That is a medical issue which must be addressed by relevant medical evidence.10
In support of his October 16, 2015 reconsideration request, counsel resubmitted the
May 9, 2014 report and the February 3, 2014 Form CA-20 report by Drs. Bryan and Williams.
He also resubmitted appellant’s CA-1 form. The Board finds that the resubmission of evidence
already of record is insufficient to warrant reopening appellant’s case for merit review. As these
reports repeat evidence already in the case record, they are duplicative and do not constitute
relevant and pertinent new evidence.11
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds counsel’s arguments are
unsubstantiated.

7

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
8

Id. at § 10.607(a).

9

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

11

See L.T., Docket No. 09-1798 (issued August 5, 2010); D.K., 59 ECAB 141 (2007); D’Wayne Avila, 57 ECAB
642 (2006).

4

CONCLUSION
The Board finds OWCP properly refused to reopen appellant’s case for further review of
the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 3, 2015 is affirmed.
Issued: June 24, 2016
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 20-1347
Issued: January 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 28, 2020 appellant filed a timely appeal from a June 8, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 8, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal.

FACTUAL HISTORY
On March 16, 2020 appellant, then a 61-year-old city carrier assistant, filed an occupational
disease claim (Form CA-2) alleging that he sustained a knee fracture due to factors of his federal
employment. He indicated that he first became aware of his condition on February 27, 2020 and
realized it was caused or aggravated by his federal employment on March 2, 2020. On the reverse
side of the claim form, appellant’s supervisor indicated that appellant reported for work on
February 27, 2020 already in pain. He did not stop work.
In a March 16, 2020 development letter, OWCP informed appellant that it had received no
evidence in support of his occupational disease claim. It asked him to complete a questionnaire to
provide further details regarding the circumstances of his claimed injury and requested a narrative
medical report from his treating physician, which contained a detailed description of findings and
diagnoses, explaining how his work activities caused, contributed to, or aggravated his medical
conditions. OWCP afforded appellant 30 days to respond.
In medical notes dated from February 27 to March 7, 2020, Dr. Nabeel Toma, a Boardcertified pediatrician, Dr. Rana Burek, Board-certified in emergency medicine, and Dr. Karishma
Walvekar, Board-certified in family medicine, recommended that appellant remain off work until
March 11, 2020.
In a March 2, 2020 after visit summary, Dr. Burek diagnosed right knee pain and provided
treatment instructions.
Dr. Maria Crumes, a Board-certified diagnostic radiologist, in a March 7, 2020 diagnostic
report, indicated that she had performed an x-ray scan of appellant’s right knee. She found soft
tissue swelling, a possible tiny avulsion fracture of the anterior patella and degenerative arthritis.
In a March 10, 2020 medical note, Dr. Toma diagnosed a tiny avulsion of the right patella
and indicated that he referred appellant to the orthopedic clinic. He advised that appellant remain
out of work through March 17, 2020.
Appellant explained, in a March 10, 2020 statement, that on February 27, 2020 he felt pain
in his right leg during work and informed his supervisor that he was unable to do his job. He then
left work and went to his family doctor who suggested that he take two days off from work.
Appellant returned to work on March 2, 2020 and again felt pain that prevented him from
delivering mail to the point where he could not lift his foot to walk. After taking additional days
off, he then went to an urgent care center, where an x-ray scan of his right knee revealed a fracture.
In a letter of even date, the employing establishment controverted appellant’s claim,
asserting that he did not report that he fell or that he was involved in an accident at any time. It
contended that he arrived to work on February 27, 2020 already in pain and requested to leave.
Dr. Labeed Nouri, a Board-certified orthopedic surgeon, indicated, in a March 13, 2020
letter, that he was treating appellant due to right knee pain and swelling and recommended lightduty work restrictions through March 30, 2020.

2

In a March 18, 2020 medical report, Dr. Walvekar indicated that an x-ray of appellant’s
right knee showed a patella fracture. In a medical note of even date, she recommended that he
remain out of work through March 30, 2020.
In a March 23, 2020 response to OWCP’s development questionnaire, appellant indicated
that he felt pain in his right knee on February 27, 2020 and requested to leave and go to the doctor
that day. When he returned to work his pain returned and he attributed the pain to walking three
to four miles. By 2:00 p.m., appellant indicated that he was screaming and crying due to the pain
and his daughter eventually took him to the emergency room. He described his symptoms and
asserted that he had no previous right knee conditions. When describing his work duties, appellant
explained that he walked about 10 miles a day and that he had fallen multiple times as well as
slipped on ice. On March 2, 2020, as he was delivering mail to a house, he felt something rupture
in his right leg as if something “broke or moved from its place.” Appellant stated that he did not
report any of his previous falls or slipping on ice because he thought everyone fell during mail
delivery.
In a March 30, 2020 medical note, Dr. Walvekar recommended that appellant remain off
work through April 17, 2020.
Dr. Marnix Van Holsbeeck, a Board-certified radiologist, in an April 22, 2020 diagnostic
report, indicated that he performed a magnetic resonance imaging (MRI) scan of appellant’s right
knee, finding early signs of tricompartmental right knee osteoarthritic disease. He also noted
findings at the posterior horn of the medial meniscus that likely represented an acute meniscal root
tear.
On April 27, 2020 OWCP requested a narrative medical report from Dr. Nouri concerning
appellant’s avulsion fracture and the factors of his federal employment. It provided him with a
statement of accepted facts (SOAF) and requested that he provide medical reasons as to whether
or not he believed appellant’s condition was caused by factors of his federal employment. OWCP
allotted Dr. Nouri 30 days to respond. No response was received.
By decision dated June 8, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a right knee condition
causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

to the employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 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).9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.
In Dr. Walvekar’s March 18, 2020 medical report, she indicated that an x-ray of appellant’s
right knee showed a patella fracture. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.10 For this reason, Dr. Walvekar’s March 18, 2020 medical report is
insufficient to meet appellant’s burden of proof.
Dr. Nouri indicated in his March 13, 2020 letter that he was treating appellant due to right
knee pain and swelling and recommended light-duty work restrictions through March 30, 2020.
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

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

8

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

9

Id.; Victor J. Woodhams, supra note 6.

10
S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

Similarly, in Dr. Burek’s March 2, 2020 after visit summary, she diagnosed right knee pain and
provided treatment instructions. The Board has consistently held that a diagnosis of “pain” does
not constitute the basis for payment of compensation, as pain is a symptom not a specific
diagnosis.11 As Drs. Nouri and Burek did not offer a valid medical diagnosis, their medical reports
are insufficient to establish appellant’s claim.
Appellant also submitted multiple medical notes dated from February 27 to March 30,
2020 where Drs. Burek, Walvekar, and Toma recommended that appellant remain off work for
varying lengths of time. As stated previously, medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.12 For this reason, these medical notes are insufficient to establish appellant’s claim.
The remaining medical evidence consists of diagnostic reports from Drs. Crumes and Van
Holsbeeck dated March 7 and April 22, 2020, respectively. The Board has held that diagnostic
tests standing alone lack probative value on the issue of causal relationship as they do not address
the relationship between the accepted employment factors and a diagnosed condition.13 For this
reason, Drs. Crumes and Van Holsbeeck’s diagnostic reports are also insufficient to meet
appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence establishing that his right
knee fracture is causally related to the accepted factors of his federal employment, the Board finds
that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.

11

T.S., Docket No. 20-0343 (issued July 15, 2020); D.H., Docket No. 19-0931 (issued October 2, 2019);
R.R., Docket No. 18-1093 (issued December 18, 2018); A.C., Docket No. 16-1587 (issued December 27, 2016);
Robert Broome, 55 ECAB 339 (2004).
12

Supra note 10.

13

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

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ORDER
IT IS HEREBY ORDERED THAT the June 8, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 29, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF AGRICULTURE,
)
Plainview, TX, Employer
)
___________________________________________ )
R.P., Appellant

Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-166
Issued: January 11, 2008

Case Submitted on the Record

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

JURISDICTION
On October 24, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated September 29, 2006, which denied modification of the
Office’s May 16, 2005 wage-earning capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined appellant’s wage-earning
capacity based on the constructed position of a medical records clerk; and (2) whether appellant
has met his burden of proof to establish that modification of the wage-earning capacity
determination was warranted.
FACTUAL HISTORY
On May 24, 2001 appellant, then a 46-year-old food inspector, injured his left shoulder
when he slipped on a piece of meat and fell at work. The Office accepted his claim for right

shoulder strain, right shoulder impingement syndrome and lumbar strain. Appellant was placed
on the periodic rolls and received appropriate compensation.
By letter dated October 7, 2004, the Office referred appellant for a second opinion to
Dr. John Krause, a Board-certified orthopedic surgeon. In an October 26, 2004 report,
Dr. Krause opined that appellant’s shoulder condition had not resolved; however, his lumbar
strain resolved. He also noted preexisting degenerative changes. Dr. Krause advised that
appellant could return to work with permanent restrictions, including no reaching above the
shoulder, no pushing greater than 20 pounds and no climbing. He completed a work capacity
evaluation and indicated that appellant could do no climbing or reaching above the shoulder, no
pushing or lifting over 20 pounds and no pulling greater than 15 pounds. By decision dated
November 18, 2004, the Office denied authorization for further lumbar treatment.
On November 29, 2004 the Office referred appellant to a vocational rehabilitation
counselor for an initial interview and vocational assessment of his skills and abilities, as the
employing establishment was unable to accommodate his restrictions. The counselor found
several jobs that appellant was able to perform that were available in the area and which paid
around $320.00 per week. On January 7, 2005 the Office advised appellant that he would
receive 90 days of job placement assistance to obtain employment. Appellant was advised that
his compensation would be reduced even if he did not obtain employment.
Through contact with the vocational counselor, the Office determined that the constructed
position of a medical records clerk, was suitable to appellant’s restrictions and reasonably
represented his wage-earning capacity. In a March 23, 2005 job classification report, the
vocational counselor identified a medical records clerk position listed in the Department of
Labor, Dictionary of Occupational Titles, DOT No. 245.362-010. He provided information
concerning the position descriptions, the availability of the positions within appellant’s
commuting area and pay ranges within the geographical area, as confirmed by state officials.
The vocational counselor determined that this position was in accord with appellant’s medical
restrictions, background, education and experience. He noted that three to six months training
was required and noted that appellant was in a medical records position while on light duty. The
vocational counselor also noted that the physical demands were within appellant’s restrictions.
The vocational counselor documented a reasonable labor market for a medical records clerk
position and noted that it was available in sufficient numbers so as to make it reasonably
available within appellant’s commuting area with a weekly wage of $320.00 per week. He
provided a job description for the position which was comprised of sedentary requirements
related to compiling and maintaining records of hospitals or other health care facilities, use of the
computer and clerical duties.
On April 11, 2005 the Office confirmed that the current rate of pay for a food inspector,
appellant’s date-of-injury job, was $19.64 per hour.
By letter dated April 15, 2005, the Office advised appellant that it proposed to reduce his
compensation. The Office found that the medical and factual evidence established that he was
no longer totally disabled but rather partially disabled. The Office noted that placement services
were authorized for 90 days, however, appellant had not secured a position. The Office found
that appellant had the capacity to earn wages as a medical records clerk at the rate of $320.00 per

2

week. Appellant was advised that the vocational rehabilitation counselor had found that, based
upon his experience, education, medical restrictions and a labor market survey, he was
employable as a medical records clerk. The Office informed appellant that the counselor
documented that the medical records clerk positions were reasonably available in his commuting
area and that the entry pay level for the position was $320.00 per week. Appellant was advised
that the physical requirements of the position were light in nature and that they did not exceed
his accepted work tolerance restrictions and were consistent with the work restrictions provided
by Dr. Krause.
In an April 15, 2005 report, Dr. S. Ali Mohamed, a preventive medicine specialist, and
Dr. Rolando F. Rodriguez, an internist, noted treating appellant for his back and shoulder pain.
They advised that appellant could not perform his job safely and should not return to work until
his condition improved.
By decision dated May 16, 2005, the Office finalized the proposed reduction of
compensation. Appellant was advised that his compensation would be reduced effective
May 15, 2005.
On June 17, 2005 appellant requested reconsideration. By decision dated August 8,
2005, the Office denied modification of its May 16, 2005 decision.
In a September 15, 2005 report, Dr. James W. Simmons, a Board-certified orthopedic
surgeon, diagnosed a herniated nucleus pulposus, a right shoulder rotator cuff tear, partial, and a
right shoulder rotator cuff tendinitis/impingement. He recommended evaluation by a shoulder
specialist and opined that appellant’s right shoulder conditions were related to his original injury.
Dr. Simmons opined that it appeared that appellant’s right shoulder condition was exacerbated
by physical therapy and may have resulted in the rotator cuff tear.
The Office received reports dating from July 2005 to May 2006 from Drs. Rodriguez and
Eddie L. Cerday, a Board-certified anesthesiologist. They diagnosed right shoulder internal
derangement syndrome, right shoulder post surgery and myofascial pain syndrome.
Drs. Rodriguez and Cerday also noted that appellant needed a referral to a shoulder surgeon for
further evaluation. They continued to treat appellant and submit periodic reports.
On August 4, 2006 appellant requested reconsideration. Appellant’s representative
alleged that his right shoulder condition had worsened and that he had developed bilateral carpal
tunnel syndrome, which resulted in material worsening of his condition such that he was
incapable of performing the duties of a medical records clerk.
By decision dated September 29, 2006, the Office denied modification of the May 16,
2005 loss of wage-earning capacity decision. The Office determined that the evidence failed to
demonstrate a material change in the nature and extent of appellant’s injury-related condition
which precluded him from performing the position of medical records clerk.

3

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.1
Section 8115(a) of the Federal Employees’ Compensation Act,2 provides in determining
compensation for partial disability, the wage-earning capacity of an employee is determined by
his actual earnings if his actual earnings fairly and reasonably represent his wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and
in the absence of evidence showing they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.3 If the actual earnings do
not fairly and reasonably represent wage-earning capacity, or if the employee has no actual
earnings, his wage-earning capacity is determined with due regard to the nature of his injury, his
degree of physical impairment, his usual employment, his age, his qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect his wage-earning capacity in his disabled condition.4 Wage-earning capacity is a
measure of the employee’s ability to earn wages in the open labor market under normal
employment conditions.5 The job selected for determining wage-earning capacity must be a job
reasonably available in the general labor market in the commuting area in which the employee
lives.6 In determining an employee’s wage-earning capacity, the Office may not select a
makeshift or odd-lot position or one not reasonably available on the open labor market.7
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor, Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitation,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.8 Finally, application of the principles set forth

1

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C § 8115(a). Bettye F. Wade, 37 ECAB 556, 565 (1986);
Ella M. Gardner, 36 ECAB 238, 241 (1984).
2

5 U.S.C. § 8115.

3

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971).

4

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

5

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

6

Id.

7

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

8

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

4

in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.9
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.10
ANALYSIS -- ISSUE 1
The medical evidence includes an October 26, 2004 report from Dr. Krause, a Boardcertified orthopedic surgeon, who noted that appellant could return to work with restrictions that
included no reaching above the shoulder, no pushing greater than 20 pounds and no climbing.
Dr. Krause also completed a work capacity evaluation and provided restrictions for appellant,
which also indicated that appellant could not lift anything greater than 15 pounds.
The Office referred appellant for vocational rehabilitation counseling and an initial
interview on January 7, 2005. In a memorandum also dated January 6, 2005, the vocational
rehabilitation counselor identified three jobs that appellant was capable of performing and which
were available in the area. On January 7, 2005 the Office informed appellant that he had 90 days
to secure employment or his compensation would be reduced based on his capacity to earn
wages. Although appellant returned to work briefly on January 20, 2005 as an electrician helper,
the record indicates this was a temporary job that ended. Thus, this position was not a proper
basis for calculating appellant’s wage-earning capacity.11 Thereafter, the Office’s vocational
rehabilitation counselor continued job placement services. On March 23, 2005 the rehabilitation
counselor identified the medical records clerk position as an available job that appellant was
capable of performing.
On April 15, 2005 the Office proposed to reduce appellant’s compensation, noting that he
had not secured a position despite placement services. Because appellant was unable to secure
employment, the vocational rehabilitation counselor identified the position of a medical records
clerk, that fit appellant’s work capabilities. The Office determined that appellant had the
capacity to earn wages as a medical records clerk, based on the October 26, 2004 work capacity
evaluation provided by Dr. Krause. In its May 16, 2005 decision, the Office reduced appellant’s
compensation effective May 15, 2005.

9

Id. See Shadrick, 5 ECAB 376 (1953).

10

John D. Jackson, 55 ECAB 465 (2004).

11

A temporary job will be considered unsuitable unless the claimant was a temporary employee when injured and
it will also be considered unsuitable, for wage-earning capacity purposes, when the temporary position will
terminate in less than 90 days. See Joyce R. Gill, 49 ECAB 658 (1998); Federal (FECA) Procedure Manual, Part 2
-- Claims, Reemployment, Determining Wage-Earning Capacity, Chapter 2.814.4(b)(3) (July 1997).

5

The Board finds that the medical evidence establishes that appellant was capable of
performing the duties required for the selected position of medical records clerk. In the
October 26, 2004 work capacity evaluation, Dr. Krause advised that appellant could return to a
full day of light-duty work with restrictions which included that he could do no climbing or
reaching above the shoulder; no pushing or lifting over 20 pounds and no pulling greater than 15
pounds. Although Drs. Mohamed and Rodriguez, on April 15, 2005, advised that appellant
could not perform his job safely and should not return to work until his condition improved, the
physicians did not specifically address whether appellant could perform the duties of the selected
medical records clerk position.
The Office vocational rehabilitation counselor determined that appellant was able to
perform the position of a medical records clerk as he had previously held this position when he
returned to light duty. He provided a job description which was comprised of sedentary
requirements related to compiling and maintaining records of hospitals or other health care
facilities, use of the computer and clerical duties and determined that the position fell within
appellant’s medical restrictions. The Office vocational rehabilitation counselor noted that the
position was available in sufficient numbers so as to make it reasonably available within
appellant’s commuting area and that the wage of the position was $320.00 per week.
The Board finds that the Office considered the proper factors, such as availability of
suitable employment and appellant’s physical limitations, usual employment and age and
employment qualifications, in determining that the position of medical records clerk represented
his wage-earning capacity.12 The weight of the evidence of record establishes that appellant had
the requisite physical ability, skill and experience to perform the position of medical records
clerk and that such a position was reasonably available within the general labor market of
appellant’s commuting area. The Office therefore properly determined that the position of
medical records clerk reflected appellant’s wage-earning capacity and using the Shadrick
formula,13 reduced his compensation effective May 15, 2005.
Appellant has not submitted any evidence to support that such positions were not
reasonably available in the general labor market.
LEGAL PRECEDENT -- ISSUE 2
It is well settled that, once the Office accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.14 Once the wage-earning capacity of an
injured employee is properly determined, it remains undisturbed regardless of actual earnings or
lack of earnings.15 A modification of such a 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
12

James M. Frasher, 53 ECAB 794 (2002).

13

Albert C. Shadrick, 5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

14

Mohamed Yunis, 42 ECAB 325, 334 (1991).

15

Roy Mathew Lyon, 27 ECAB 186, 190-98 (1975).

6

erroneous.16 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.17
ANALYSIS -- ISSUE 2
Appellant has not submitted any evidence to show that the original May 16, 2005
determination regarding his wage-earning capacity was erroneous. Furthermore, appellant has
not alleged nor is there any indication from the record that he has been retrained or otherwise
vocationally rehabilitated. Thus, the only remaining avenue for modification is by demonstrating
a material change in the nature and extent of appellant’s injury-related condition. Appellant,
however, has failed in this regard as well.
The majority of evidence appellant submitted in support of his request for modification
pertains to various medical reports submitted by Drs. Rodriguez and Cerday, who diagnosed
right shoulder internal derangement syndrome and right shoulder post surgery with myofascial
pain syndrome. However, they did not address appellant’s ability to work in general or, more
specifically, address whether his current shoulder conditions precluded him from performing the
duties of a medical records clerk. The reports did not address a worsening of appellant’s
accepted work-related conditions or his inability to perform the position of medical records clerk.
Other medical reports submitted by appellant did not address a worsening of appellant’s accepted
work-related conditions or specifically address his ability to perform the position of medical
records clerk.
Additionally, the record contains reports from a social worker. However, social workers
are not physicians, and these reports do not constitute probative medical evidence.18
For the above-noted reasons, these reports are insufficient to modify the Office’s May 16,
2005 loss of wage-earning capacity determination.
Appellant has not met his burden on modification. He has failed to submit any
rationalized medical opinion evidence explaining why an employment-related condition
prevented him from performing the position of a medical records clerk. Accordingly, the Board
finds that the Office properly denied modification of its May 16, 2005 determination regarding
appellant’s wage-earning capacity. As noted above, the burden of proof is on the party
attempting to show a modification of the wage-earning capacity. In this case, appellant has not
submitted any medical evidence establishing a material change in the nature and extent of his
injury-related conditions.
16

Tamra McCauley, 51 ECAB 375, 377 (2000); Elmer Strong, 17 ECAB 226, 228 (1965).

17

Id.

18

5 U.S.C. § 8101(2) of the Act provides as follows: (2) physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. A report may not be considered as probative medical evidence if there is no indication that the
person completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2); Phillip L. Barnes, 55 ECAB
426 (2004).

7

CONCLUSION
The Board finds that the Office met its burden of proof in reducing appellant’s
compensation based on its determination that the constructed position of a medical records clerk
represented his wage-earning capacity effective May 15, 2005. The Board also finds that
appellant did not meet his burden of proof to establish that modification of the wage-earning
capacity determination was warranted.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-554
Issued: August 18, 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 December 18, 2007 appellant filed a timely appeal from a September 20, 2007 merit
decision of the Office of Workers’ Compensation Programs granting him a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
decision.
ISSUE
The issue is whether appellant has more than a 15 percent permanent impairment of each
upper extremity.
FACTUAL HISTORY
This case is before the Board for the second time. On July 15, 2007 the Board set aside
June 2 and August 15, 2006 decisions of the Office granting appellant schedule awards for an

eight percent permanent impairment of each upper extremity and denying further merit review.1
The Board found that the evidence was insufficient to establish the extent of his permanent
impairment of the upper extremities as the Office medical adviser did not explain how he utilized
Tables 16-15, 16-10 and 16-11 of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) (A.M.A., Guides) in reaching his impairment rating.
On September 7, 2006 appellant underwent a right elbow exploration and debridement of
the extensor carpi radialis brevis tendon with drilling and repair. In a progress report dated
January 2, 2007, Dr. Daniel F. Murphy, a Board-certified orthopedic surgeon, found that
appellant had good strength of the right elbow with full range of motion. He noted that appellant
experienced “mild tenderness at the incision” but was “neurovascularly intact.” Dr. Murphy
opined that appellant had reached maximum medical improvement and had a 10 percent
permanent impairment of the right upper extremity.
Appellant requested an increased schedule award. On April 3, 2007 an Office medical
adviser determined that appellant had a 15 percent impairment of each upper extremity. He
classified appellant’s sensory and motor impairment of the bilateral ulnar nerve as Grade 3. The
Office medical adviser found that, pursuant to Tables 16-15, 16-10 and 16-15 on pages 482, 484
and 492 of the A.M.A., Guides, appellant had a 15 percent impairment, which he obtained by
multiplying 40 percent by 38 percent.
On July 12, 2007 the Office informed appellant that the Office medical adviser failed to
consider his September 7, 2006 right elbow surgery when providing his impairment rating. It
further noted that the Board had remanded the case for clarification from the Office medical
adviser.
On July 12, 2007 a claims examiner requested that the Office medical adviser further
explain how he calculated the percentage of impairment in accordance with the Board’s
instructions. The claims examiner requested that he address the extent of appellant’s permanent
impairment on the right side following his September 6, 2006 surgery. On July 12, 2007 the
Office medical adviser again concluded that appellant had a 15 percent permanent impairment of
the right upper extremity and a 15 percent permanent impairment of the left upper extremity. He
determined that appellant did not have an increased impairment due to his September 7, 2006
surgery. The Office medical adviser referenced his April 3, 2007 report and noted that he
calculated the extent of appellant’s upper extremity impairment using Tables 16-15, 16-10 and
16-11 on pages 492, 482 and 484 of the A.M.A., Guides. He discussed the findings by
appellant’s attending physician of dysesthesias around the elbow extending through the forearms
medially due to ulnar nerve changes and decreased hand strength.

1

Docket No. 07-327 (issued July l5, 2007). The Office accepted that on January 14, 2003 appellant, a 55-yearold processing clerk, sustained bilateral medial epicondylitis. Appellant underwent surgery for left elbow chronic
ulnar neuritis and cubital tunnel syndrome on September 23, 2003 and surgery for right elbow chronic medial
epicondylitis on October 23, 2003. On February 16, 2005 he underwent surgery for cubital tunnel syndrome with an
ulnar nerve compression of the left elbow and on June 13, 2005 he underwent surgery for cubital tunnel syndrome
with an ulnar nerve compression of the right elbow.

2

By decision dated September 20, 2007, the Office granted appellant a schedule award for
a 15 percent permanent impairment of each upper extremity. It noted that the amount included
the eight percent for each upper extremity previously awarded. The period of the award ran for
43.61 weeks from May 17, 2007 to March 17, 2008.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,2 and its
implementing federal regulation,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.4 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.5
ANALYSIS
On prior appeal the Board remanded the case for the Office medical adviser to explain his
use of Tables 16-15, 16-10 and 16-11 on pages 482, 484 and 492 of the A.M.A., Guides. The
Board noted that he generally referenced the listed tables but did not sufficiently describe how he
calculated the impairment rating.
On April 3, 2007 the Office medical adviser concluded that appellant had a Grade 3
motor and sensory deficit of the ulnar nerve bilaterally. Citing to Tables 16-15, 16-10 and 16-11
of the A.M.A., Guides, he determined that he had a 15 percent upper extremity impairment. The
Office medical adviser calculated the impairment by multiplying 40 percent by 38 percent. On
January 2, 2007 he found that appellant had no additional impairment from his September 7,
2006 surgery. The Office medical adviser reiterated that he had a 15 percent impairment of each
upper extremity as provided in the prior report. It is not clear, however, whether he followed the
grading scheme and procedure set forth in Tables 16-10 and 16-11 of the A.M.A., Guides for
determining an impairment of the upper extremity due to sensory deficit and motor loss from
peripheral nerve injuries.6 The proper procedure under the A.M.A., Guides is to identify the
involved nerve root and obtain the maximum upper extremity impairment value for that nerve
root due to sensory deficits, motor deficits or both using Table 16-15.7 The evaluator should
then grade the impairment using Table 16-10 for sensory deficits and pain and Table 16-11 for
motor impairments. The maximum impairment of the identified nerve due to sensory deficit,
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

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

6

A.M.A., Guides 482, 484, Tables 16-10, 16-11.

7

Id.

3

motor deficit, or both is then multiplied by the graded impairment found in Tables 16-10 and
16-11.8 The Office medical adviser did not clearly identify the involved nerve root under
Table 16-15.9 He calculated appellant’s impairment by multiplying 38 percent by 40 percent.
The Office medical adviser noted that he experienced motor and sensory loss of the ulnar nerve;
however, the ulnar nerve values provided in Table 16-15 do not correspond to either 38 percent
or 40 percent. He explained his finding that appellant had a Grade 3 impairment due to sensory
and motor loss which yields a deficit range of 26 to 60 percent for sensory loss and 26 to 50
percent for motor loss.10 The Office medical adviser did not identify the percentage that he used
in reaching his impairment rating. The Board is thus unable to confirm the impairment rating
determination. The case will be remanded for the Office to obtain a probative opinion on the
degree of appellant’s permanent impairment of each upper extremity in accordance with the
A.M.A., Guides. After such further development as it deems necessary, it should issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 20, 2007 is set aside and the case is remanded for
further proceedings consistent with this decision by the Board.
Issued: August 18, 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
8

Id.

9

Id. at 492, Table 16-15.

10

Id. at 482, 484, Tables 16-10, 16-11.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1498
Issued: February 13, 2019

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 August 1, 2018 appellant filed a timely appeal from a July 16, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that her diagnosed
medical conditions were causally related to the accepted May 21, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the July 16, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On June 6, 2018 appellant, then a 23-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that, on May 21, 2018, she sustained injuries to her spine, left shoulder
and arm, left hip and buttock, and left knee and leg when she was involved in a vehicular accident
around 9:13 a.m. while in the performance of duty. Specifically, she noted that the injury occurred
on her route when a third party ran a red light and hit her vehicle causing her vehicle to flip and
hit a number of parked cars. The employing establishment did not dispute that appellant was
injured in the performance of duty. Appellant stopped work on May 22, 2018.
In a note dated May 22, 2018, Dr. Joseph Kelberman, a chiropractor, indicated that
appellant had sustained injuries to her full spine, left shoulder and arm, left hip and buttock, and
left knee and leg. He noted that she was totally disabled from work.
In a work excuse note dated May 31, 2018, Dr. Vladimir Onefater, a physical medicine and
rehabilitation specialist, noted that appellant was unable to perform the required duties of her job
and could not return to work until her next evaluation on June 21, 2018.
In a development letter dated June 11, 2018, OWCP advised appellant of the deficiencies
in her claim. It requested additional medical evidence to support her claim because she had
provided neither a diagnosis of a medical condition nor a physician’s opinion as to how the alleged
incident resulted in a diagnosed condition. OWCP indicated that it had received medical reports
signed by a chiropractor, but that a chiropractor did not qualify as a physician under FECA unless
there is a diagnosed spinal subluxation and it is demonstrated by x-ray to exist. It provided
appellant a factual questionnaire to complete. OWCP afforded him 30 days to submit the requested
evidence.
In response, OWCP received additional reports from Dr. Onefater dated May 31, 2018 in
which he noted appellant’s history of injury, and her complaints of neck and left shoulder pain
which he related to sprain/strains.
Appellant also submitted physical therapy notes dated May 31 through June 14, 2018.
OWCP also received a June 19, 2018 MRI scan report of appellant’s cervical spine, a
June 27, 2018 MRI scan report of the lumbar spine, and an electromyography and nerve
conduction velocity (EMG/NCV) report dated June 21, 2018.
In a narrative medical report dated June 21, 2018, Dr. Onefater diagnosed left shoulder
impingement, cervical strain/sprain, subacromial bursitis, left shoulder intrasubstance partial
rotator cuff tear, and lumbosacral sprain/strain. In a duty status report (Form CA-17) dated
June 29, 2018, Dr. Onefater noted that appellant may resume work on July 14, 2018.
By decision dated July 16, 2018, OWCP denied appellant’s claim. It found that he had
established that the incident occurred in the performance of duty, as alleged. However, OWCP
denied appellant’s claim in finding that the evidence of record was insufficient to establish that her
diagnosed conditions were causally related to the accepted May 21, 2018 employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.4 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.5
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.6 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
Rationalized medical opinion evidence is generally 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 factors identified by the claimant.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted May 21, 2018 employment
incident.
Dr. Onefater provided several reports to the record. In his May 31, 2018 report, he noted
appellant’s history of injury and that appellant was seen for pain in her neck, left shoulder, and
low back, which he attributed to strain/sprain. The Board notes that the assessment of pain is not
considered a diagnosis as it merely refers to symptoms of the underlying condition.8 While
Dr. Onefater also diagnosed strain/sprain, he offered no opinion regarding the cause of this
3

Supra note 1.

4

D.K., Docket No. 17-1186 (issued June 11, 2018); Gary J. Watling, 52 ECAB 278 (2001).

5

D.K., id.; Michael E. Smith, 50 ECAB 313 (1999).

6

D.K., supra note 4; Elaine Pendleton, 40 ECAB 1143 (1989).

7

D.K., supra note 4; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
rather than a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket
No. 08-1102 (issued October 10, 2008).

3

diagnosis. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.9
In a June 29, 2018 narrative report, Dr. Onefater reviewed MRI scan findings and
diagnosed left shoulder impingement, cervical strain/sprain, subacromial bursitis, left shoulder
intrasubstance partial rotator cuff tear, and lumbosacral sprain/strain. However, again,
Dr. Onefater did not opine as to the cause of appellant’s condition.10 To be of probative medical
value, a medical opinion must explain how physiologically the movements involved in the
employment incident caused or contributed to the diagnosed conditions.11
Appellant submitted a work excuse note from Dr. Kelberman, a chiropractor, dated
May 22, 2018 in which he indicated that appellant had sustained injuries to her spine, left shoulder
and arm, left hip and buttock, and left knee and leg. The Board finds that the note from
Dr. Kelberman cannot be considered medical evidence under FECA because he did not diagnose
a subluxation based upon x-ray evidence. Without a diagnosis of spinal subluxation from an xray, a chiropractor is not considered a physician as defined under FECA and thus his opinion does
not constitute competent medical evidence.12 As such, the note from Dr. Kelberman is of no
probative value and, thus, is insufficient to establish the causal relationship.
Appellant also submitted reports from a physical therapist. However, physical therapists
are not considered physicians as defined under FECA and therefore their opinions are of no
probative value.13
OWCP also received MRI scan reports of the cervical spine dated June 19, 2018 and of the
lumbar spine dated June 27, 2018, and an EMG/NCV report dated June 21, 2018. Diagnostic
studies lack probative value on the issue of causal relationship as they do not address whether the
employment incident caused a diagnosed condition.14

9
C.C., Docket No. 17-1841 (issued December 6, 2018); see L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
10

Id.

11

See K.L., Docket No. 18-1029 (issued January 9, 2019).

12
R.P., Docket No. 18-0860 (issued December 4, 2018); 20 C.F.R. § 10.5(bb); see Mary A. Ceglia, 55 ECAB
626 (2004).
13

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
14
R.B., Docket No. 18-1327 (issued December 31, 2018); see C.D., Docket No. 17-2011 (issued
November 6, 2018).

4

Appellant has the burden of proof to submit rationalized medical evidence establishing that
her diagnosed medical conditions were causally related to the accepted May 21, 2018 employment
incident.15 She has not submitted such evidence and thus has not met her burden of proof.16
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted May 21, 2018 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 13, 2019
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

15

R.B., id.; see D.T., Docket No. 17-1734 (issued January 18, 2018).

16

R.B., supra note 14; see D.S., Docket No. 18-0061 (issued May 29, 2018).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 13-395
Issued: May 1, 2013

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 December 10, 2012 appellant filed a timely appeal from the September 27, 2012 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 OWCP properly reduced appellant’s wage-loss compensation based
on her capacity to earn wages as a receptionist.
FACTUAL HISTORY
In 1994 appellant, a 45-year-old letter carrier, developed an occupational disease in the
performance of her ambulatory duties. OWCP accepted her claim for bilateral calcaneal spur,

1

5 U.S.C. § 8101 et seq.

bilateral plantar fibromatosis and right Achilles tendinitis. Appellant underwent surgery on both
feet and received compensation for periods of wage loss.
On March 3, 2008 OWCP reduced appellant’s wage-loss compensation to zero on the
grounds that her actual wages as a modified-duty letter carrier fairly and reasonably represented
her wage-earning capacity. In April 2009, however, appellant was sent home because there were
no operationally necessary tasks for her to perform at work. OWCP began paying compensation
for temporary total disability on the periodic rolls.
In a January 28, 2010 report, Dr. Benjamin C. Tam, the attending Board-certified
orthopedic surgeon, found that appellant was no longer totally disabled and could return to work
with restrictions. He permanently restricted her to sedentary duty with up to two hours of
walking and standing and up to two and one-half hours of pushing, pulling and lifting.
As the employing establishment was not able to accommodate these restrictions, OWCP
referred appellant to vocational rehabilitation services.
In February 2011 appellant advised Dr. Tam that she had increasing complaints of
paresthesia involving her fingers. She had examination findings consistent with carpal tunnel
syndrome, subsequently confirmed by nerve conduction studies. Appellant underwent a left
carpal tunnel release in March 2011. Dr. Tam was unable to state unequivocally whether her
carpal tunnel syndrome resulted from the repetitive use of her wrists in the rehabilitation
computer training class, as her symptoms appeared to have presented three months after her
vocational rehabilitation had ended.
Based on the medically determinable residuals of the injury, and taking into consideration
all significant preexisting impairments and pertinent nonmedical factors, the rehabilitation
counselor found that appellant was able to perform the job of a receptionist (clerical). The
rehabilitation counselor explained how appellant met the specific vocational preparation for the
position. She confirmed through direct telephone employer contacts, the Los Angeles Times
classified ads and online job listings that full-time positions within appellant’s permanent
restrictions were being performed in sufficient numbers so as to make them reasonably available
to her within her commuting area. The rehabilitation counselor was also able to confirm through
direct employer contacts that the position paid a mean weekly wage of $388.40.
An OWCP rehabilitation specialist found that the selected position of receptionist
remained vocationally and medically appropriate because it was sedentary in nature and within
appellant’s work restrictions, and because appellant had completed a nine and a half-month
training program, including classes to improve her English communication skills, both spoken
and written. She found that the targeted position existed in sufficient numbers within appellant’s
commuting area so as to be considered reasonably available. The rehabilitation specialist
confirmed that the salary range was from $320.00 to $480.00 per week.
In March 2012 OWCP proposed to reduce appellant’s wage-loss compensation to reflect
her capacity to earn entry-level wages as a receptionist.
Dr. Tam saw appellant on April 13, 2012 for a follow-up evaluation. He noted that her
status was upgraded to permanent and stationary with modified-duty restrictions in 2007.
2

Dr. Tam noted that she was released from her position at the employing establishment in 2009.
He stated that he last saw appellant two months earlier. Appellant received authorization for
eight physical therapy treatments, which she completed. This improved her symptoms
somewhat, but she currently presented with more pain because of the cold weather and rain.
Dr. Tam examined appellant and diagnosed bilateral retrocalcaneal bursitis, left worse than right,
status post excision of calcaneal spur. He provided her a prescription and released her to return
on an as-needed basis.
Appellant contested the proposed reduction. She argued that she was totally disabled for
work in a full or partial capacity. Appellant explained that she had left carpal tunnel syndrome,
bilateral hand degenerative joint disease, and left middle and thumb trigger fingers. She alleged
that the rehabilitation counselor knew about these conditions and diagnosis and knew that she
could not type 35 words per minute. Further, appellant stated that she looked for jobs but was
deemed not qualified due to lack of typing experience or computer literacy. Further, she was still
recovering from surgery on December 22, 2011 for a macular hole in her right eye. Appellant
had no vision in her right eye, which prohibited her from driving or having any contact with
direct light. She added that she had sleep apnea, with difficulty breathing and sleeping.
Appellant was still taking physical therapy and rehabilitation for her feet and ankle until
May 2012. “Therefore, I am unable [to] have the ability to find or perform work at total and
functional capacity in the items I have included.”
In a final decision dated September 27, 2012, OWCP determined that appellant had the
capacity to earn $320.00 a week as a receptionist. It found that she failed to submit any concrete
evidence to support that she was unemployable. Based on a review of the record, OWCP found
no evidence that appellant could not perform the duties of the selected position.
On appeal, appellant repeats her limitation and limited mobility, as well as her poor
vision in the right eye. She also implicates her age and the fact that English is her second
language: “it makes finding work or being considered impossible.” Appellant adds that she
tried, that she filled out many job applications, but she did not receive any calls for an interview.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.3
Section 8115(a) of FECA provides that in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his or her actual earnings,
if his or her actual earnings fairly and reasonably represent his or her wage-earning capacity. If
the actual earnings of the employee do not fairly and reasonably represent his or her wageearning capacity, or if the employee has no actual earnings, his or her wage-earning capacity as
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

3

appears reasonable under the circumstances is determined with, due regard to the nature of his or
her injury, the degree of physical impairment, his or her usual employment, his or her age, his or
her qualifications for other employment, the availability of suitable employment, and other
factors or circumstances which may affect his or her wage-earning capacity in his or her disabled
condition.4
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 When it makes a medical determination of partial
disability and of the specific work restrictions, it may refer the employee’s case to an OWCP
wage-earning capacity specialist for selection of a position, listed in the Department of Labor’s
Dictionary of Occupational Titles or otherwise available in the open labor market, that fits the
employee’s capabilities in light of his or her physical limitations, education, age and prior
experience. Once this selection is made, a determination of wage rate and availability in the
open labor market should be made through contact with the state employment service or other
applicable service. Finally, application of the principles set forth in Albert C. Shadrick will
determine the percentage of the employee’s loss of wage-earning capacity.6 The Shadrick
formula is codified at 20 C.F.R. § 10.403.
ANALYSIS
In some situations, vocational rehabilitation efforts do not succeed, and the claimant’s
wage-earning capacity must be determined on the basis of a position deemed suitable but not
actually held. In making this determination, the test is whether the claimant’s wage-earning
capacity appears reasonable, giving due regard to the factors specified in section 8115 of FECA.7
Dr. Tam, the attending orthopedic surgeon, found in 2010 that appellant was no longer
totally disabled for work. He found that she could return to work with permanent restrictions:
sedentary duty with up to two hours of walking and standing and up to two and a half hours of
pushing, pulling and lifting. Notwithstanding appellant’s concern about her inability to find
work, Dr. Tam never downgraded her status or indicated that she was totally disabled. He most
recently saw her on April 13, 2012 and did not change her work status or permanent restrictions.
Dr. Tam released her to return on an as-needed basis.
Because the medical evidence showed that appellant was only partially disabled for work,
OWCP referred her to vocational rehabilitation services. As she was unable to secure
employment, the rehabilitation counselor identified the position of receptionist (clerical) as
vocationally and medically suitable.

4

5 U.S.C. § 8115(a).

5

Harold S. McGough, 36 ECAB 332 (1984).

6

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 8.814.8 (October 2009).

4

An OWCP rehabilitation specialist confirmed that the position of receptionist remained
vocationally and medically suitable because it was sedentary in nature and within appellant’s
established work restrictions, and because appellant had completed a nine and one-half-month
training program. She also confirmed that the position was reasonably available. The
rehabilitation specialist is an expert in the field of vocational rehabilitation, and OWCP may rely
on her opinion as to whether the selected job is reasonably available and vocationally suitable.8
Appellant contested the proposed reduction in her compensation, but the medical
evidence did not support her contention that she was totally disabled for all work. The Board has
reviewed the medical record and can find no evidence citing the selected position of receptionist
as unsuitable to appellant’s capabilities. Dr. Tam acknowledged appellant’s hand complaints,
but he noted that her symptoms appeared to have presented three months after vocational
rehabilitation had ended. As to her inability to find a job, this does not equate to a finding that
the selected position was not performed in sufficient numbers so as to be considered reasonably
available within appellant’s commuting area.9
The Board finds that OWCP has met its burden to justify the reduction of appellant’s
compensation based on her capacity to earn wages in the selected position of receptionist.
OWCP gave due regard to relevant factors, such as appellant’s physical limitations, employment
qualification and the availability of suitable employment. It followed established procedures to
determine her loss of wage-earning capacity. Accordingly, the Board will affirm OWCP’s
September 27, 2012 decision.
Appellant argues that the position is unsuitable due to her limitations, age and language
skills. However, she has submitted no documentation to substantiate these claims. The fact that
she could not obtain a job interview does not mean that the position is not reasonably available to
her in the open labor market. Indeed, the very fact that appellant was unable to secure a position
made it necessary to determine her wage-earning capacity on the basis of a position deemed
suitable but not actually held. Such a position must be performed in sufficient numbers within
the claimant’s commuting area. If it is, as both the rehabilitation counselor and OWCP
rehabilitation specialist confirmed, then the position is deemed to be reasonably available
notwithstanding a claimant’s current failure to secure such a position. OWCP did not reduce
appellant’s compensation based on actual wages. It reduced her compensation under section
8115(a) of FECA based on her capacity to earn wages in her partially disabled condition.
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 8.814.8.b(2) (October 2009).
9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 8.814.8.c (October 2009) (lack of job openings).

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CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation based
on her capacity to earn wages as a receptionist.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2013
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DORN VA MEDICAL CENTER, Columbia, SC,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0019
Issued: July 15, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 7, 2020 appellant, through counsel, filed a timely appeal from an August 21,
2020 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 a medical condition
causally related to the accepted February 11, 2019 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 11, 2019 appellant, then a 44-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that on that date she injured her left shoulder, wrist, ankle, and arm
when she slipped and fell on spilled coffee while in the performance of duty. She stopped work
that day.
On February 11, 2019 appellant was treated by Samuel Wachter, a nurse practitioner, who
noted the history of injury as a trip and fall at work. Mr. Wachter noted diagnoses of left shoulder,
left wrist, right knee, and left ankle sprains.
X-rays of appellant’s left ankle obtained on February 11, 2019 revealed degenerative
changes and some diffuse swelling of the soft tissue. X-rays of the right knee revealed mild
degenerative changes, and x-rays of the left wrist and left shoulder were unremarkable.
In an unsigned note dated February 13, 2019, Dr. Cassandra Patterson, a Board-certified
internist, indicated that appellant had been seen in her clinic and requested that she be excused
from work from February 11 through 17, 2019. On February 15, 2019 she requested that appellant
be excused from work from February 15 through 24, 2019.
In a development letter dated March 8, 2019, OWCP advised appellant of the factual and
medical evidence needed to establish her claim and provided her with a questionnaire to complete.
It allotted her 30 days to submit a response. No response was received.
By decision dated April 10, 2019, OWCP denied appellant’s traumatic injury claim finding
that she had not submitted medical evidence containing a diagnosis in connection with the accepted
February 11, 2019 employment incident and, thus, had not met the requirements to establish an
injury as defined by FECA.
On April 17, 2019 appellant requested reconsideration. She indicated that she received the
March 8, 2019 development letter from OWCP and submitted medical evidence that she believed
cured the deficiencies in her claim.

3

Docket No. 19-1638 (issued July 17, 2020).

2

Appellant submitted a February 11, 2019 note from Mr. Wachter, x-rays dated
February 11, 2019, and the February 13 and 15, 2019 notes from Dr. Patterson, all previously of
record.
OWCP received after visit summaries from Dr. Patterson dated February 13 and 15, 2019
who treated appellant in follow-up following a fall. Other visit summaries from Dr. Patterson
dated February 22 and March 7, 2019 evaluated appellant for left shoulder pain. In a February 22,
2019 note, Dr. Patterson excused appellant from work from February 15 through March 10, 2019.
In a note dated March 7, 2019, she excused appellant from work from March 7 through 12, 2019.
Dr. Kevin K. Nahigian, a Board-certified orthopedist, provided an after-visit summary
dated March 12, 2019, and noted diagnoses of chronic left shoulder pain, subacromial
impingement of the left shoulder, and chronic frozen shoulder for which he administered an
injection and prescribed medication. In another note dated March 12, 2019, he advised that
appellant should remain off work until March 28, 2019.
By decision dated April 22, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
OWCP received additional evidence, including evidence previously of record. Appellant
submitted an e-mail dated February 11, 2019 to her supervisor informing her that she slipped and
fell downstairs injuring her ankle, wrist, and shoulder and was going to the employee health unit.
She submitted an incident report. Appellant also submitted an “incident timeline” documenting
her injury and medical treatment from February 11 through May 1, 2019. She provided a March 8,
2019 e-mail to the employing establishment payroll finance department regarding her pay status.
In a March 12, 2019 note, Dr. Nahigian treated appellant and indicated that she remained
off work until March 28, 2019.
On April 30, 2019 Dr. Patterson treated appellant for left shoulder pain and diagnosed
subacromial impingement of the left shoulder and adhesive capsulitis. She noted treating appellant
on February 15, 26, and March 7, 2019.
On July 30, 2019 appellant appealed the April 10 and 22, 2019 OWCP decisions to the
Board. By decision dated July 17, 2020, the Board affirmed in part and set aside in part the
decisions dated April 10 and 22, 2019. The Board found that appellant had not met her burden of
proof to establish a medical condition causally related to the February 11, 2019 employment
incident. The Board further found that OWCP improperly denied her request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a) and remanded the case for an appropriate
merit decision on her claim for disability.
4

Upon return of the case record, by decision dated August 21, 2020, OWCP modified the
April 10, 2019 decision, finding that appellant had established medical diagnoses. However, the
claim remained denied as the medical evidence of record was insufficient to establish causal
4

Supra note 4.

3

relationship between appellant’s diagnosed conditions and the accepted February 11, 2019
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.10 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors
identified by the employee.11

5

Supra note 2.

6

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted February 11, 2019 employment incident.
By decision dated July 17, 2020, the Board affirmed OWCP’s denial of her claim, finding
that appellant had not met her burden of proof to establish a medical condition causally related to
the February 11, 2019 employment incident. The Board further found that OWCP improperly
denied her request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Findings made in prior Board decisions are res judicata absent any further review by OWCP under
section 8128 of FECA.12 The Board will, therefore, not review the medical evidence addressed in
the prior appeal.
In a note dated April 30, 2019, Dr. Patterson treated appellant for injuries sustained from a
fall at work. She diagnosed subacromial impingement of the left shoulder and adhesive capsulitis.
Dr. Patterson further noted treating appellant on February 15, 26, and March 7, 2019. However,
she did not provide medical rationale regarding causal relationship. As Dr. Patterson failed to
explain how the accepted employment factors physiologically caused or contributed to the
diagnosed conditions, her reports are of limited probative value.13
In a February 22, 2019 note, Dr. Patterson evaluated appellant for left shoulder pain and
excused her from work from February 15 through March 10, 2019. In a note dated March 7, 2019,
she excused appellant from work from March 7 through 12, 2019. Similarly, in an after visit
summary dated March 7, 2019, Dr. Patterson treated appellant for left shoulder pain. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.14 Accordingly, these medical
notes are insufficient to establish appellant’s claim.
In an after-visit summary dated March 12, 2019, Dr. Nahigian, diagnosed chronic left
shoulder pain, subacromial impingement of the left shoulder, and chronic frozen shoulder for
which he administered an injection and prescribed medication. He advised that appellant should
remain off work until March 28, 2019. Similarly, in a March 12, 2019 note, Dr. Nahigian treated
appellant and indicated that she remain off work until March 28, 2019. However, he provided no
opinion regarding whether appellant sustained an injury causally related to her accepted
employment incident. As stated above, medical evidence that does not offer an opinion regarding

12

See M.M., Docket No. 18-1366 (issued February 27, 2019); E.L., Docket No. 16-0635 (issued November 7,
2016); R.L., Docket No. 15-1010 (issued July 21, 2015). See also A.P., Docket No. 14-1228 (issued
October 15, 2014); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
13

M.M., Docket No. 19-1580 (issued February 19, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020);
A.B., Docket No. 16-1163 (issued September 8, 2017).
14
C.F., Docket No. 19-1748 (issued March 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

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the cause of an employee’s condition or disability is of no probative value on the issue of causal
relationship.15 Therefore, these reports are insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her diagnosed left shoulder, wrist, ankle, and arm conditions and the accepted
February 11, 2019 employment incident, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted February 11, 2019 employment incident.

15
See A.S., Docket No. 19-0915 (issued November 22, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the August 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2021
Washington, DC

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

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

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

7