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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-982
Issued: January 7, 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 February 22, 2007 appellant timely appealed the February 20, 2007 merit decision of
the Office of Workers’ Compensation Programs granting him a schedule award for a 12 percent
impairment of the left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has more than 12 percent impairment of the left lower
extremity.
FACTUAL HISTORY
This is the third appeal to the Board in this case. On September 26, 2006 the Board
remanded the case to the Office for reconstruction of the record and appropriate development, in
order to obtain a copy of a November 2005 decision referenced by the Office in its most recent
merit decision.1 In a September 25, 2007 decision, the Board reversed the Office’s January 12,
1

Docket No. 06-775 (issued September 26, 2006).

2007 decision, which reduced appellant’s compensation benefits pursuant to 5 U.S.C. § 8115.2
The facts and the law in those cases are incorporated herein by reference. This appeal concerns
the Office’s February 20, 2007 decision granting appellant a schedule award for a 12 percent
impairment of the left lower extremity.
On February 27, 2002 appellant, a 29-year-old mail carrier, filed a traumatic injury claim,
alleging that he sustained an injury to his lower back while lifting a mail tray. The Office
accepted his claim for aggravation of a herniated lumbar disc. Appellant subsequently
underwent a lumbar laminectomy and was placed on the periodic rolls.
The record contains an August 9, 2006 report from Dr. Richard Levenberg, a Boardcertified orthopedic surgeon, who examined appellant on that date, following a laminectomy for
foot drop. He noted obvious atrophy in the left lower extremity and indicated that appellant had
chronic pain and radiculopathy. In an accompanying work capacity evaluation, Dr. Levenberg
stated that appellant had no strength in the left leg. On August 29, 2006 he stated that appellant
had reached maximum medical improvement and reiterated his opinion that appellant’s
requirements of sedentary employment were permanent. On January 4, 2007 appellant requested
a schedule award.
Appellant submitted a report dated November 16, 2006 from Dr. George L. Rodriguez, a
Board-certified physiatrist, who reviewed the history of injury and provided findings on
examination of appellant. Dr. Rodriquez noted radiating pain and weakness in the left lower
extremity. He opined that appellant’s conditions of herniated nucleus pulpous at L3-4, L4-5 and
L5-S1 with multiple surgical procedures, lumbar radiculopathy at L5 and S1, degenerative disc
disease and Les Planus (left) were secondary to the work-related injury of February 27, 2002 and
that appellant reached maximum medical improvement on July 31, 2004. Dr. Rodriquez opined
that appellant had a 34 percent left leg impairment based on motor impairment of the entire
sciatic nerve and the peroneal nerve, according to the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). He found
that appellant had motor nerve impairment to the upper sciatic nerve and the tibial nerve and
provided a rating utilizing Tables 16-11 and 17-37 and Figure 17-9, as well as the Combined
Values Chart in the A.M.A., Guides. Under Table 16-11 on page 484, appellant’s motor
impairment of the upper sciatic and tibial nerves would be classified as a Grade 3 motor deficit,
which he stated corresponded to a 60 percent motor deficit. The maximum motor impairment of
the sciatic nerve was 75 percent and the maximum motor impairment of the peroneal nerve was
42 percent under Table 17-37 on page 552. Finding that the maximum deficit was 57 percent, he
utilized the Combined Values Chart on page 604 to find that the combined left lower extremity
impairment was 34 percent impairment.
In a January 11, 2007 report, a district medical adviser rejected Dr. Rodriguez’
impairment rating, stating that it was inappropriately based on the sciatic peroneal and tibial
nerves, rather than specific nerve roots, namely L4 and 5 on the left side, which were the only
nerve roots involved in appellant’s case. Utilizing Dr. Levenberg’s August 9, 2006 report and
the results of Dr. Rodriguez’ examination, the adviser recommended that appellant be awarded a
schedule award for 12 percent permanent impairment to his left leg. Under Table 15-18, page
2

Docket No. 07-786 (issued September 25, 2007).

2

424, entitled “Unilateral Spinal Nerve Root Impairment Affecting the Lower Extremity,” the
Office medical adviser found that the maximum loss for an impairment to the L5 nerve root was
five percent due to sensory deficit or pain and the maximum loss for an impairment to the S1
nerve root was five percent due to sensory deficit or pain. He also found that the maximum
rating for an impaired S1 nerve root due to loss of power was 20 percent. Under Table 15-15 on
page 424, a Grade 4 sensory loss of 25 percent multiplied by the 5 percent maximum sensory
loss of the L5 nerve root resulted in a 1.25 sensory loss for the L5 nerve root, rounded off to 1
percent. A Grade 4 sensory loss of 25 percent multiplied by the 5 percent maximum sensory loss
of the S1 nerve root resulted in a 1.25 sensory loss for the S1 nerve root, rounded off to 1
percent. Under Table 15-16 on page 424, a Grade 3 motor loss for plantar flexion (which is S1
nerve root) equated to a 50 percent motor deficit which, when multiplied by an S1 maximum
motor impairment of 20 percent, yielded a 10 percent impairment for the S1 nerve root. The
medical adviser determined that the one percent impairment rating for sensory loss of the L5
nerve root and the one percent rating for sensory loss of the S1 nerve root could be added, rather
than combined, as they were from the same table, resulting in a two percent rating for sensory
loss. The Office medical adviser then combined the 10 percent S1 impairment due to motor
deficit and loss of power with the 2 percent sensory impairment, pursuant to the A.M.A., Guides’
Combined Values Chart at page 604 and concluded that appellant had a total left lower extremity
impairment of 12 percent. He opined that the date of maximum medical improvement was
November 16, 2006.
On February 20, 2007 the Office awarded appellant a schedule award for a 12 percent
impairment of his left lower extremity, finding that the date of maximum medical improvement
was November 16, 2006. The award was for the period November 16, 2006 to July 15, 2007.
The order reflected that appellant’s compensation payments received for the period
November 16, 2006 to February 17, 2007, in the gross amount of $4,515.80, would be deducted
from his first schedule award payment.
On appeal, appellant’s representative requested that payment of the schedule award be
deferred until such time as appellant was no longer entitled to receive compensation benefits. He
stated that it was “patently unfair” that the amount of the schedule award must be reduced by
loss of wage-earning capacity payments, contending that to do so was to reduce the value of the
award.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act3 and section 10.404 of
the implementing federal regulations,4 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

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A.M.A., Guides5 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.6 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.7 The Board notes that section
8109(19) specifically excludes the back from the definition of organ.8 However, a claimant may
be entitled to a schedule award for permanent impairment to an upper or lower extremity even
though the cause of the impairment originated in the neck, shoulders or spine.9
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from a physician is obtained.10
ANALYSIS
The Board finds that appellant has not established that he has more than a 12 percent left
lower extremity impairment. Therefore, the Office’s February 20, 2007 schedule award will be
affirmed.
The Office based appellant’s schedule award on the January 11, 2007 report of its Office
medical adviser. The medical adviser indicated that, based on the findings contained in the
reports of Drs. Levenberg and Rodriguez, appellant had both sensory and motor impairments
stemming from his accepted work-related conditions. He then applied Dr. Rodriguez’ findings
to the provisions of the A.M.A., Guides pertaining to impairments due to spinal nerve root
impairments affecting the lower extremity under Tables 15-15 and 15-18 and opined that
appellant had a 12 percent left lower extremity impairment.11 Dr. Rodriguez calculated an
impairment rating based on impairment of the sciatic and the peroneal nerves. However, as the
medical adviser concluded, the sciatic nerve was not involved. Therefore, an impairment rating
based on the sciatic peroneal and tibial nerves, rather than specific nerve roots, was inappropriate
in this case. As appellant’s accepted conditions pertain to various nerve roots, namely L4-5 and
L5-S1, the Office medical adviser’s rationale for not using Dr. Rodriguez’ impairment rating is
supported by the record. Additionally, Dr. Rodriguez did not fully explain and the Board is
unable to determine, how he made his impairment rating under the A.M.A., Guides.
5

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

6

See Joseph Lawrence, Jr., supra note 5; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB
1287 (1989).
7

Thomas J. Engelhart, 50 ECAB 319 (1999).

8

5 U.S.C. § 8107; see also Phyllis F. Cundiff, 52 ECAB 439 (2001); Jay K. Tomokiyo, 51 ECAB 361 (2000).

9

5 U.S.C. § 8109(c).

10

Thomas J. Engelhart, supra note 7.

11

See Thomas J. Fragale, 55 ECAB 619 (2004). Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation
of Schedule Awards, Chapter 2.808.6(d) (August 2002).

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The Board finds that the Office medical adviser presented a well-rationalized explanation
of the manner in which he calculated appellant’s impairment rating. He properly referred to and
applied the appropriate tables and figures in the A.M.A., Guides.12 Pursuant to Table 15-18,
page 424, he correctly found that the maximum loss for an impairment to the L5 nerve root was
5 percent due to sensory deficit or pain; the maximum loss for an impairment to the S1 nerve
root was 5 percent due to sensory deficit or pain; and that the maximum rating for an impaired
S1 nerve root due to loss of power was 20 percent.13 Under Table 15-15 on page 424, a Grade 4
sensory loss of 25 percent, multiplied by the 5 percent maximum sensory loss of the L5 nerve
root, resulted in a 1.25 percent sensory loss for L5 nerve root, rounded off to 1 percent.14 A
Grade 4 sensory loss of 25 percent, multiplied by the 5 percent maximum sensory loss of the S1
nerve root, resulted in a 1.25 percent sensory loss for the S1 nerve root, rounded off to 1
percent.15 Under Table 15-16 on page 424, a Grade 3 motor loss for plantar flexion (which is S1
nerve root) equated to a 50 percent motor deficit, which, when multiplied by an S1 maximum
motor impairment of 20 percent, yielded a 10 percent impairment for the S1 nerve root.16 The
medical adviser correctly determined that the 1 percent impairment rating for sensory loss of the
L5 nerve root and the 1 percent rating for sensory loss of the S1 nerve root could be added, rather
than combined, as they were from the same table, resulting in a 2 percent rating for sensory loss.
He then properly referred to the Combined Values Chart at page 604 and combined the 10
percent S1 impairment due to motor deficit and loss of power with the 2 percent sensory
impairment and concluded that appellant had a total left lower extremity impairment of 12
percent.17
The Board also finds that the medical adviser properly concluded that the date of
maximum medical improvement (MMI) was November 16, 2006, the date of Dr. Rodriguez’
examination. Dr. Rodriguez stated that July 31, 2004 was the date of MMI. However, the Board
has noted a reluctance to find a date of maximum medical improvement which is retroactive to
the award, as retroactive awards often result in payment of less compensation benefits. The
Board, therefore, requires persuasive proof of maximum medical improvement in the selection of

12

See A.M.A., Guides 423, § 15.12, Nerve Root and/or Spinal Cord, which describes the method to be used for
evaluation of impairment due to sensory and motor loss of the extremities. The nerves involved are first identified.
Then, under Tables 15-15 and 15-16, the extent of any sensory and/or motor loss due to nerve impairment is to be
determined, to be followed by determination of maximum impairment due to nerve dysfunction in Table 15-17 for
the upper extremity and Table 15-18 for the lower extremity. The severity of the sensory or motor deficit is to be
multiplied by the maximum value of the relevant nerve. Id.
13

A.M.A., Guides 424, Table 15-18.

14

A.M.A., Guides 424, Table 15-15. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter, 3.700.3.b. (October 1990) (the policy of the Office is to round the calculated percentage of impairment to
the nearest whole point).
15

Id.

16

A.M.A., Guides 424, Table 15-16.

17

A.M.A., Guides 604. The A.M.A., Guides states that, if there is both sensory and motor impairment of a nerve
root, the impairment percents are combined using the Combined Values Chart on page 604. A.M.A., Guides 423.

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a retroactive date of maximum medical improvement.18 No evidence has been submitted to
support a retroactive date.19
The January 11, 2007 impairment rating provided by the Office medical adviser
conforms to the A.M.A., Guides and his finding constitutes the weight of the medical evidence.
He provided a well-rationalized explanation as to why an impairment rating based on nerve
roots, as opposed to nerves, was provided. Appellant has not submitted probative medical
evidence to establish that he has greater than a 12 percent impairment of the left lower
extremity.20

18

The determination of whether MMI has been reached is based on the probative medical evidence of record and
is usually considered to be the date of the evaluation by the attending physician which is accepted as definitive by
the Office. J.C., 58 ECAB ___ (Docket No. 06-1018, issued January 10, 2007); D.R., 57 ECAB ___ (Docket No.
06-668, issued August 22, 2006); James E. Earle, 51 ECAB 567 (2000). Mark A. Holloway, 55 ECAB 321,
325 (2004).
19

The Board notes that neither the Act nor its implementing regulations provides for deferral of a schedule award
until such time as a claimant is no longer entitled to receive compensation benefits, as requested by appellant’s
representative. With respect to benefits under the Act, the Board has held that “an employee cannot [con]currently
receive compensation under a schedule award and compensation for disability for work.” James E. Earle, supra
note 18; Andrew B. Poe, 27 ECAB 510 (1976). It is well established that the period covered by a schedule award
commences on the date that the employee reaches maximum medical improvement from the residuals of the
employment injury. Id. 5 U.S.C. § 8116(a) prohibits the receipt of dual benefits but would not prohibit an employee
from receiving a schedule award at the same time he or she was receiving retirement benefits. The Board notes that
appellant’s rights under section 8116(a) were not violated, as he was not entitled to retirement benefits during the
period of his schedule award.

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CONCLUSION
The Board finds that appellant has not established that he has more than a 12 percent left
lower extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Brooklyn, NY,
Employer
__________________________________________

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

Docket No. 20-0157
Issued: April 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 24, 2019 appellant filed a timely appeal from a May 13, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 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. 3

1
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated March 25, 2020, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for
Oral Argument, Docket No. 20-0157 (issued March 25, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 13, 2019 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right hip sprain
causally related to the accepted September 30, 2018 employment incident.
FACTUAL HISTORY
On October 10, 2018 appellant, then a 26-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on September 30, 2018 he sustained abdominal pain in the groin
region after moving a postal container (post-con), filled with parcels, outsides, sacks, and trays
convoy, while in the performance of duty. He stopped work on September 30, 2018. The
employing establishment acknowledged on the claim form that appellant was in the performance
of duty at the time of the alleged injury.
In a September 30, 2018 statement to the employing establishment, appellant advised that
on the date of the claimed injury he had felt a strain in his lower stomach after positioning a postcon.
The record contains a September 30, 2018 authorization for examination and/or treatment
(Form CA-16) completed by the employing establishment.
On September 30, 2018 a physician assistant indicated that appellant had received
treatment on that date at the emergency department. He advised that he should not perform heavy
lifting or pushing. In a duty status report (Form CA 17) dated September 30, 2018, the physician
assistant diagnosed a reducible hernia and opined that appellant could perform modified duty with
no heavy lifting or pushing.
In a development letter dated October 30, 2018, OWCP informed appellant that when it
had received his claim it appeared that his injury was minor and had resulted in minimal or no lost
time from work. It had administratively approved the claim to allow payment for a limited amount
of medical expenses without formally adjudicating the merits of the claim. OWCP advised that as
appellant had not returned to full-time work, it would formally adjudicate his claim. It requested
that he submit factual and medical evidence, including a comprehensive report from a physician
addressing the relationship between a diagnosed condition and the employment incident. OWCP
afforded appellant 30 days to submit the necessary evidence.
Thereafter, appellant submitted an October 19, 2018 note from Dr. Shahid Mian, a Boardcertified orthopedic surgeon, who indicated that he had evaluated appellant for a September 30,
2018 injury for which appellant was to remain off work.
OWCP also received an October 29, 2018 report from a physical therapist.

2

In a November 2, 2018 Form CA-17 report, a physician specializing in orthopedics
diagnosed a strain of the right hip and groin4 and advised that appellant could resume work without
restrictions.
On November 3, 2018 appellant returned to his usual employment.
By decision dated December 11, 2018, OWCP denied appellant’s traumatic injury claim
finding that he had established that the September 30, 2018 employment incident occurred as
alleged and had submitted a report from a physician identifying a diagnosed condition. It
determined, however, that the medical evidence then of record was insufficient to establish causal
relationship between a diagnosed condition and the accepted employment incident.
On December 26, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
In a report dated January 8, 2019, Dr. Mian noted that on September 30, 2018 appellant
had experienced pain in his right hip “after lifting” a post-con at work that weighed approximately
200 pounds. He advised that the September 30, 2018 heavy lifting event resulted in his right hip
sprain.
A hearing was held on April 8, 2019. Appellant described his claimed employment injury,
noting that it had occurred when he was pushing post-cons that were filled with mail. OWCP’s
hearing representative noted that Dr. Mian’s medical report indicated that he had lifted the postcon and requested that he provide a report clarifying the mechanism of injury.
OWCP received a document which provided a picture and written description of a postcon.
By decision dated May 13, 2019, OWCP’s hearing representative affirmed the
December 11, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 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 of FECA,6 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 is causally related to

4

The signature of the physician is illegible.

5

Supra note 1.

6
S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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the employment injury.7 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. 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. 9
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred. 10 The second component is whether employment incident caused
a personal injury.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident. 12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted September 30, 2018 employment incident.
Dr. Mian indicated in his October 19, 2018 note that he had evaluated appellant following
his claimed September 30, 2018 injury. While he indicated that appellant was disabled from work,
he did not provide a history of injury, diagnosis, or opinion regarding causal relationship. The
Board has held that a medical opinion should reflect a correct history and offer a medically sound
explanation by the physician of how the specific employment incident caused or aggravated the
diagnosed conditions.13 Lacking these elements, these reports are insufficient to establish
appellant’s claim.14
On January 8, 2019 Dr. Mian obtained a history of appellant experiencing right hip pain
on September 30, 2018 “after lifting” a post-con weighing around 200 pounds. He diagnosed right
hip sprain due to heavy lifting on September 30, 2018. Appellant, however, attributed his
condition to pulling rather than lifting a heavy container. The Board has held that medical opinions

7

T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

8

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

9

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388 (2008).

10

E.M., Docket No. 18-1599 (issued March 7, 2019); Bonnie A. Contreras, 57 ECAB 364 (2006).

11

Id.

12

See S.S., supra note 9; H.B., Docket No. 18-0781 (issued September 5, 2018).

13

T.M., Docket No. 19-1283 (issued December 2, 2019).

14

Id.; T.G., Docket No. 19-1441 (issued January 28, 2020).

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based on an incomplete or inaccurate history are of limited probative value. 15 Further, Dr. Mian
failed to provide rationale for his conclusion. A physician must provide a narrative description of
the identified employment incident and a reasoned opinion on whether the described incident
caused or contributed to a diagnosed medical condition. 16
A physician assistant evaluated appellant on September 30, 2018 and completed a Form
CA-17 report. On October 29, 2018 a physical therapist provided a report. The Board has held
that medical reports signed solely by a physical therapist or physician assistant are of no probative
value as such health care providers are not considered “physician[s]” as defined under FECA. 17
Consequently, this evidence is insufficient to establish appellant’s claim.18
OWCP also received a November 2, 2018 Form CA-17 report bearing an illegible
signature. A report that is unsigned or bears an illegible signature lacks proper identification and
cannot be considered probative medical evidence as the author cannot be identified as a
physician.19
OWCP also received a document which included a picture and description of a post-con.
The Board has explained that excerpts from publications, which provide a picture of the equipment
alleged to have caused injury, are of little evidentiary value in establishing the necessary causal
relationship between a claimed condition and employment incident because such materials are of
general application and are not determinative of whether the specifically claimed condition is
related to the particular employment incident alleged by the employee. 20
On appeal appellant asserts that he submitted all of the paperwork necessary to establish
his claim. However, as he has not submitted rationalized medical evidence establishing that his
right hip sprain was causally related to the accepted September 30, 2018 employment incident, the
Board finds that he has not met his burden of proof. 21

15

G.E., Docket No. 19-1190 (issued November 26, 2019); T.O., Docket No. 17-0093 (issued March 22, 2018).

16

K.B., Docket No. 19-0398 (issued December 18, 2019).

5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The report from a physician assistant, has no probative medical value on the issue of causal relationship
as physician assistants are not considered physicians as defined under FECA. B.K., Docket No. 19-0829 (issued
September 25, 2019); S.J., Docket No. 19-0693 (issued August 23, 2019) (physical therapists are not physicians under
FECA); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).
17

18

N.B., Docket No. 19-0221 (issued July 15, 2019).

19

I.M., Docket No. 19-1038 (issued January 23, 2020); K.C., Docket No. 18-1330 (issued March 11, 2019).

20

P.J., Docket No. 18-1738 (issued May 17, 2019); Edward Chow, Docket 96-1498 (issued June 24, 1998);
Dominic E. Coppo, 44 ECAB 484 (1993).
21

See K.K., Docket No. 19-1193 (issued October 21, 2019).

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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 10.607.22
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right hip sprain
causally related to the accepted September 30, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 1, 2020
Washington, DC

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

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

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

22

The case record contains a form for authorization for examination and/or treatment (Form CA -16) executed by
the employing establishment on September 30, 2018. The Board notes that where an employing establishment
properly executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim for a workrelated injury, the Form CA-16 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 C.C., Docket No. 18-1453
(issued January 28, 2020); Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by
a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R.
§ 110.300(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilkes-Barre, PA, Employer
__________________________________________

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

Docket No. 20-1019
Issued: February 17, 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 April 1, 2020 appellant filed a timely appeal from a February 28, 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 traumatic injury
in the performance of duty on January 14, 2020, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 28, 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
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 14, 2020 appellant, then a 30-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his left arm while in the performance of
duty. He explained that he was lifting a tub of flats onto a stool when he felt pulling and pain in
his left arm. Appellant did not stop work. On the reverse side of the claim form the employing
establishment indicated that appellant was injured on January 14, 2020 while in the performance
of duty, and it stated that its knowledge of the facts of the injury agreed with appellant’s statements.
It further indicated, however, that it controverted the claim due to fact of injury.
A January 14, 2020 medical narrative report indicated that appellant was seen by Dr. Dale
Bortz, Jr., an osteopath Board-certified in family medicine. Dr. Bortz noted that appellant
complained that on that date he had injured his left shoulder when he picked up a tub of
mayonnaise. He diagnosed an unspecified sprain of the left shoulder joint and provided discharge
instructions for a shoulder sprain and muscle strain. Dr. Bortz also completed a duty status report
(Form CA-17) on January 14, 2020, indicating that appellant injured his left side on that date when
he lifted a tub and felt a pull in his left arm, and that his history of injury was consistent with this
description. Clinical findings included left shoulder tenderness upon palpation. Dr. Bortz
diagnosed a left shoulder sprain and listed appellant’s work restrictions.
In a January 23, 2020 development letter, OWCP advised him of the type of factual and
medical evidence necessary to establish his claim and attached a questionnaire for his completion.
It afforded him 30 days to submit the requested evidence.
A January 23, 2020 Form CA-17 report by a certified physician assistant indicated that
appellant was injured on January 14, 2020 when he lifted a tub and felt a pull in his left arm, and
that his history of injury was consistent with this description. Clinical findings included left
shoulder tenderness upon palpation and with range of motion, and appellant was diagnosed with a
left shoulder sprain. The report additionally listed appellant’s work restrictions.
The employing establishment controverted the claim in a February 3, 2020 letter,
indicating that, while appellant alleged in his traumatic injury form that he injured his left shoulder
while lifting a tub of flat mail onto a stool; however, his medical documentation from January 14,
2020 stated that he injured his left side when he picked up a tub of mayonnaise. It contended that
this discrepancy casted serious doubt on the validity of appellant’s claim.
On January 29, 2020 appellant completed OWCP’s development questionnaire. He stated
that, as he was lifting a tub of flat mail he felt a pull in his arm, causing him to drop the tub onto a
stool. Appellant indicated that, after the incident, he felt light pain and discomfort in his left arm
and he informed his supervisor of what occurred. He noted that he did not have any similar
disabilities or symptoms prior to his injury.
In a January 30, 2020 attending physician’s report (Form CA-20) from Dr. Bortz indicated
that on January 14, 2020 appellant was lifting a tub of mail when he experienced left shoulder
pain. He noted that there was no history or evidence of a concurrent or preexisting condition.
Dr. Bortz diagnosed left shoulder sprain/strain, and noted that appellant’s condition was caused or
aggravated by the alleged January 14, 2020 employment incident. He also noted that appellant
could return to full-time regular-duty work.
2

A January 30, 2020 Form CA-17 report from Dr. Bortz indicated that appellant was injured
on January 14, 2020 when he lifted a tub and felt a pull in his left arm, and that his history of injury
was consistent with this description. Dr. Bortz diagnosed a left shoulder sprain and advised
appellant to resume full-time regular-duty work.
By decision dated February 24, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the event occurred as he
described. It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
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 timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 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.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2019);
Bonnie A. Contreras, 57 ECAB 364 (2006).
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.

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action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a prima facie case has been established. An employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that the January 14,
2020 incident occurred in the performance of duty, as alleged.
Appellant alleged on his January 14, 2020 claim form that on that date he injured his left
arm while lifting a tub of flats when he felt pulling and pain in his left arm. The employing
establishment indicated that appellant was injured on January 14, 2020 in the performance of duty,
and it stated that its knowledge of the facts of the injury agreed with the statements of appellant.
Appellant’s January 29, 2020 statement responding to OWCP’s questionnaire included that he was
injured while lifting a tub of flats onto a stool when he felt a pull in his arm. Additionally, the
medical form reports submitted by appellant provided a consistent history of injury, that appellant
was injured on January 14, 2020 when he lifted a tub at work and felt a pull in his left arm.
While the January 14, 2020 narrative report from Dr. Bortz noted that appellant related that
on that date he injured his left shoulder when he picked up a tub of mayonnaise, the Board finds
that this one inconsistency is insufficient to cast serious doubt as to whether the specific event or
incident occurred at the time, place, and in the manner alleged,12 which is that he lifted some object
while in the performance of duty. Dr. Bortz subsequently corrected the mechanism of injury and
reported on January 30, 2020 that appellant was lifting a tub of mail at work when he sustained his
left shoulder injury. Appellant otherwise consistently stated in his claim form, statement to
OWCP, and statements to medical providers that he was injured on January 14, 2020 when he
lifted a tub and felt a pull in his left arm. An employee’s statement alleging that an injury occurred
at a given time and in a given manner is of great probative value and will stand unless refuted by
strong or persuasive evidence.13 Additionally, appellant timely reported lifting a tub of mail to his
supervisor and filed his traumatic injury claim form on January 14, 2020, the date of his injury,
and obtained medical treatment on that date as well. Therefore, the Board finds that appellant has
met his burden of proof to establish that the January 14, 2020 employment incident occurred when
the appellant lifted a tub of flats onto a stool as alleged.

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

F.H., Docket No. 18-0869 (issued January 29, 2020); D.B., supra note 8.

12

See K.F., Docket No. 18-0485 (issued February 18, 2020).

13

Supra note 11.

4

As appellant has established that the January 14, 2020 employment incident occurred as
alleged, consideration of the medical evidence is necessary.14 Therefore, the case will be remanded
to OWCP to evaluate the medical evidence of record and determine whether appellant has met his
burden of proof to establish a medical condition causally related to the accepted January 14, 2020
employment incident.15 Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish that the January 14,
2020 incident occurred in the performance of duty on January 14, 2020, as alleged. The Board
further finds that the case must be remanded to determine whether appellant sustained a medical
condition causally related to the accepted January 14, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 17, 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

14

Q.T., Docket No. 19-1693 (issued March 27, 2020).

15

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 14-1149
Issued: August 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 21, 2014 appellant filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) nonmerit decision dated December 6, 2013. Because more
than 180 days elapsed from December 14, 2011, the date of the most recent merit decision, to the
filing of this appeal, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits as it was untimely filed and failed to show clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 30, 2011 appellant, then a 56-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he had developed stress and anxiety as a result of
actions by management of the employing establishment. In an attached statement dated
September 29, 2011, he listed the factors of employment alleged to have caused his condition.
Appellant stated that management’s changing of his working conditions had caused him stress
and anxiety due to his inability to complete duties in the time allotted, inability to meet strict
deadlines, being required to work overtime, being threatened with discipline, and being
intimidated and harassed. He alleged that he was subjected to constant scrutiny, tension,
degradation and humiliation, and that he had to leave his job in order to escape the hostile work
environment. Appellant alleged that on April 4, 2011 his supervisor harassed him about retiring;
and that on May 16, 2011 his supervisor changed his leave time and scrutinized his work,
causing him to be embarrassed in front of his coworkers and that she threatened him with
discipline. He stated that management was following him both on duty and off duty, with up to
six managers following him on the street at one time and noted that, while the harassment began
on May 16, 2011, it continued afterward. Appellant submitted several hand-written statements
reiterating the events of May 16, 2011 and thereafter.
In a letter dated July 1, 2011, appellant’s coworker addressed why appellant was retiring.
She stated that the supervisor had created a hostile work environment. Appellant’s coworker
stated that the supervisor had chosen to belittle, berate and threaten her employees to get more
than they could physically give, and that her actions appeared contrary to retaining the older and
more experienced work force, motivated by a belief that she could achieve her goals through age
discrimination.
By decision dated December 14, 2011, OWCP denied appellant’s claim for
compensation. It found that he had failed to establish a factual basis to support his claim by
supporting his allegations with probative and reliable evidence.
On January 4, 2012 appellant requested an oral hearing before an OWCP hearing
representative. The telephonic hearing was scheduled for April 2, 2012, but appellant failed to
appear and OWCP determined that he had abandoned his request for a hearing on May 8, 2012.
In a record of a telephone conversation dated May 14, 2012, appellant stated that his
representative never got an appointment letter for the telephonic hearing. The claims examiner
told appellant that there was no authorization for representation present in his case file, and that
he needed to submit paperwork designating his representative. The representative, also present
for the telephone conversation, requested another copy of the initial decision.
On May 17, 2012 appellant requested reconsideration of the December 14, 2011 decision.
In support of his request for reconsideration, he submitted an illegible prescription slip.
By decision dated May 22, 2012, OWCP declined appellant’s request for reconsideration,
finding that the submitted documents did not raise substantive legal questions and did not include
new or relevant evidence.

2

On September 19, 2012 appellant again requested reconsideration of the December 14,
2011 decision. He did not submit any argument or evidence with his request.
By decision dated March 5, 2013, OWCP declined appellant’s request for
reconsideration, finding that he had neither raised substantive legal questions nor included new
and relevant evidence with his request.
On July 27, 2013 appellant requested reconsideration of the December 14, 2011 decision.
OWCP received the request on August 2, 2013, according to the date stamp. In an attached
letter, appellant stated that he had sent OWCP proof of what had occurred, and that he had
witnesses as to the fact that his supervisor would not give him any workers’ compensation forms
to be filled out or send him to a physician. He stated that he had been seeing a physician for two
years and that he should still be working. Appellant attached a report from Dr. Daniel Lane, an
osteopath, which noted that he continued to have depression and prescribed three medications.2
Dr. Lane stated that appellant had ongoing anxiety and depression exacerbated by stressors
related to episodes of maltreatment at work and that he was moving to New Orleans in order to
“get away from things for a while.”
By decision dated December 6, 2013, OWCP declined appellant’s request for
reconsideration. It found that his request was not timely filed and failed to present clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.3 The Board has found that the imposition of the
one-year limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.4 When review is sought for merit decisions issued on or after
August 29, 2011, timeliness is determined by the document receipt date of the reconsideration.
If the request for reconsideration is received more than one year after the last decision, the
request must be considered untimely.5
OWCP may not deny an application for review solely on the grounds that the application
was not timely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.6 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
2

Dr. Lane’s certification or licensure as an osteopath could not be confirmed via a search of the database of the
American Osteopathic Association.
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

3

merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
In order to establish clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.13
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that it abused its discretion in denying merit review
in the face of such evidence.14
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original decision.15 A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.16 As noted above, when review is
sought for merit decisions issued on or after August 29, 2011, timeliness is determined by the
7

20 C.F.R. § 10.607(b); supra note 5 at Chapter 2.1602.5(a) (October 2011). OWCP’s procedure further
provides, “The term ‘clear evidence of error’ is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that OWCP made a mistake. For example, a claimant provides proof that a
schedule award was miscalculated, such as a marriage certificate showing that the claimant had a dependent but the
award was not paid at the augmented rate.”
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See Leona N. Travis, supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

14

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

15

20 C.F.R. § 10.607(a).

16

Robert F. Stone, 57 ECAB 292, 295 (2005).

4

document receipt date of the reconsideration. If the request for reconsideration is received more
than one year after the last decision, the request must be considered untimely.17 As OWCP
received his request for reconsideration more than one year after December 14, 2011, appellant’s
request for reconsideration was untimely. Consequently, he must demonstrate clear evidence of
error by OWCP in denying his claim for compensation.18
The underlying claim for compensation was denied on the grounds that appellant had not
established a factual basis for his claim. On reconsideration, he alleged that he had provided
OWCP proof of what had occurred, and that he had witnesses as to the fact that his supervisor
would not give him any workers’ compensation forms to be filled out or send him to a physician.
Appellant also submitted a medical report from Dr. Lane. Dr. Lane’s medical report is irrelevant
to the grounds upon which appellant’s claim was denied. To the extent that Dr. Lane addressed
the cause of appellant’s condition, he merely restated appellant’s allegations. Appellant did not
submit probative evidence establishing clear evidence of error in the finding that he had failed to
establish a factual basis for his claim. His own statement, submitted on reconsideration, repeated
his prior allegations and contained a new allegation that his supervisors had refused to give him
workers’ compensation forms.
The Board notes that the term clear evidence of error is intended to represent a difficult
standard. Appellant must present evidence or argument which on its face shows that OWCP
made an error. Neither appellant’s argument nor the medical report of Dr. Lane submitted with
his July 27, 2013 request for reconsideration raised a substantial question as to the correctness of
OWCP’s December 14, 2011 decision. The Board finds that these submissions are insufficient
to shift the weight of evidence in favor of appellant’s claim or raise a substantial question that
OWCP erred by denying his claim on the basis that he had not established a factual basis for his
claim. Therefore, the Board finds that he has not presented clear evidence of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

17

Supra note 5.

18

Supra note 7; see D.G., 59 ECAB 455, 458 (2008).

5

ORDER
IT IS HEREBY ORDERED THAT the December 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF STATE, AMERICAN
CONSULATE GENERAL, El Paso, TX,
Employer
__________________________________________

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

Docket No. 07-1267
Issued: November 14, 2007

Case Submitted on the Record

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

JURISDICTION
On April 11, 2007 appellant filed a timely appeal of a March 30, 2007 merit decision,
finding a two percent impairment of the left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d)(2), the Board has jurisdiction to review the merits of this schedule award case.
ISSUES
The issues are: (1) whether appellant has established that he has more than a two percent
impairment of the left lower extremity, for which he received a schedule award; and (2) whether
his schedule award compensation was paid at the proper pay rate. On appeal, he contends that
the pay rate should have been based on his salary at the time his claim was approved on
March 12, 2004.
FACTUAL HISTORY
This case has previously been before the Board. In a June 20, 2005 decision, the Board
found that the Office properly terminated appellant’s compensation benefits effective

December 26, 2004, on the grounds that he no longer had any disability causally related to his
August 21, 2003 employment injury.1 The facts and the circumstances of the case as set forth in
the Board’s prior decision are incorporated herein by reference.2 The facts and the history
relevant to the present issue are set forth.
By letter dated June 27, 2005, the employing establishment advised the Office that
appellant resigned from his position as a consular officer effective March 30, 2004. Appellant
was a GS 9, step 4 and his annual base salary as of January 2003 was $42,830.00 and it was
$44,500.00 as of January 2004. The employing establishment stated that he did not receive any
premium pay. A Notice of Personnel Action (SF-50 Form) indicated that appellant’s total annual
pay rate at the time of his retirement on March 30, 2004 was $44,500.00.
On June 30, 2005 appellant filed a claim for a schedule award. A July 2, 2005 medical
report of Dr. Jose A. Alicea, a Board-certified orthopedic surgeon, provided a history that
appellant underwent arthroscopic surgery in March 2004 for a work-related left knee injury.
Dr. Alicea stated that appellant reached maximum medical improvement on June 29, 2005. He
noted that the partial medial meniscectomy constituted a one percent impairment of the whole
person and his degenerative changes at the time of the arthroscopic surgery constituted a three
percent impairment of the whole person based on Tables 17-33 and 17-31 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001). Dr. Alicea combined these impairment ratings to conclude that appellant had a four
percent impairment of the whole person which constituted a nine percent impairment to the left
lower extremity.
On April 7, 2006 an Office medical adviser reviewed the medical records and found that
appellant reached maximum medical improvement on July 2, 2005. He determined that a partial
medial meniscectomy constituted a two percent impairment of the left lower extremity (A.M.A.,
Guides 546, Table 17-33). The medical adviser further determined that appellant was not
entitled to additional impairment for degenerative arthritis. He stated that Dr. Alicea’s reliance
on Table 17-31 on page 544 of the A.M.A., Guides was incorrect because the A.M.A., Guides
provided impairment for degenerative changes that were quantified based on cartilage intervals
as demonstrated by x-ray and not on intra-articular observations during surgery.
By decision dated March 30, 2007, the Office granted appellant a schedule award for a
two percent impairment of the left lower extremity for 5.76 weeks of compensation for the
period July 2 through August 11, 2005, based on a weekly pay rate of $839.60 effective
March 30, 2004.3

1

Docket No. 05-531 (issued June 20, 2005).

2

On December 23, 2003 appellant, then a 48-year-old consular officer, filed a traumatic injury claim. He hurt his
left knee on August 21, 2003 when he stepped off a platform at work. By letter dated March 12, 2004, the Office
accepted appellant’s claim for a medial meniscus tear of the left knee and authorized arthroscopic surgery which was
performed on March 29, 2004.
3

The Board notes that appellant’s weekly pay rate of $839.60 was based on an annual salary of $43,659.00.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.6 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.7
The A.M.A., Guides provides in pertinent part:
“The best roentgenographic indicator of disease stage and impairment for a
person with arthritis is the cartilage interval or joint space. The hallmark of all
types of arthritis is thinning of the articular cartilage; this correlates well with
disease progression.
“The need for joint replacement or major reconstruction usually corresponds with
complete loss of the articular surface (joint space). The impairment estimates in a
person with arthritis (Table 17-31) are based on standard x-rays taken with the
individual standing, if possible. The ideal film-to-camera distance is 90
[centimeters] (36 inches), and the beam should be at the level of and parallel to
the joint surface. The estimate for the patellofemoral joint is based on a ‘sunrise
view’ taken at 40 degrees flexion or on a true lateral view.
“In the case of the knee, the joint must be in the neutral flexion-extension position
(zero degrees) to evaluate the x-rays.”8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a medial meniscus tear of the left knee and
underwent a partial medial meniscectomy. He filed a claim for a schedule award on June 30,
2005 and submitted Dr. Alicea’s July 2, 2005 impairment evaluation. Dr. Alicea opined that
appellant reached maximum medical improvement on June 29, 2005. He determined that his
partial medial meniscectomy constituted a one percent impairment of the whole person (A.M.A.,
Guides 546, Table 17-33). Dr. Alicea further determined that appellant had a three percent
impairment of the whole person for his degenerative changes at the time of the arthroscopic
4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107(c)(19).

7

See note 5, supra.

8

A.M.A., Guides 544.

3

surgery (A.M.A., Guides 544, Table 17-31). He combined the one percent impairment for the
partial medial meniscectomy and the two percent impairment for arthritis to conclude that
appellant had a four percent impairment of the whole person which constituted a nine percent
impairment of the lower extremity. However, Dr. Alicea did not provide a cartilage level
measurement obtained by x-ray in support of his impairment rating for arthritis as required for
application of Table 17-31. Therefore, his determination of appellant’s permanent impairment of
the left lower extremity is not based on correct application of the A.M.A., Guides. The Board
finds that Dr. Alicea’s July 2, 2005 impairment rating is of diminished probative value.
The Office medical adviser reviewed Dr. Alicea’s findings, rating impairment based on
the A.M.A., Guides. He opined that appellant reached maximum medical improvement on
July 2, 2005. The medical adviser determined that a partial medial meniscectomy constituted a
two percent impairment of the left lower extremity (A.M.A., Guides 546, Table 17-33). He
further determined that appellant was not entitled to additional impairment for degenerative
arthritis. The medical adviser explained that Dr. Alicea’s reliance on Table 17-31 on page 544 of
the A.M.A., Guides was incorrect because the A.M.A., Guides provided impairment for
degenerative changes that are quantified based on cartilage intervals as demonstrated by x-ray
and not on intra-articular observations. As noted, Dr. Alicea did not obtain any x-ray to
determine appellant’s arthritis impairment. The Office medical adviser properly applied the
A.M.A., Guides and provided rationale for rating a two percent impairment of the left lower
extremity. The Board finds that the opinion of the medical adviser represents the weight of the
medical opinion evidence of record. Appellant has no more than a two percent impairment of
the left lower extremity. There is no discretion on the part of the Office or Board to grant
additional compensation for such losses.9
On appeal, appellant contends that the period of the schedule award, the number of weeks
of compensation and the effective date of his pay rate used for the award did not apply to his
case. Under the Act, the maximum award for an impairment of the leg is 288 weeks of
compensation.10 The two percent impairment of the left leg entitled appellant to two percent of
288 weeks or 5.76 weeks of compensation. The Board finds that the Office correctly determined
appellant’s schedule award to be 5.76 weeks of compensation. He is entitled to no more under
the Act.
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from residuals of the employment
injury.11 Maximum improvement means that the physical condition of the injured member of the
body has stabilized and will not improve further.12 In this case, the Office medical adviser
properly found that appellant reached maximum medical improvement on July 2, 2005, the date
of examination by Dr. Alicea. The Board, therefore, finds that the schedule award properly runs
for 5.76 weeks commencing on July 2, 2005.
9

Donald Mueller, 32 ECAB 33 (1980).

10

5 U.S.C. § 8107(c)(2).

11

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

12

Adela Hernandez-Piris, 35 ECAB 839 (1984); James T. Rogers, 33 ECAB 347 (1981).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Act13 provides that compensation for a schedule award shall be based
on the employee’s monthly pay.14 Section 8105(a) of the Act provides: If the disability is total,
the United States shall pay the employee during the disability monthly monetary compensation
equal to 66 2/3 percent of his monthly pay, which is known as his basic compensation for total
disability.15
Section 8101(4) of the Act defines monthly pay for purposes of computing compensation
benefits as follows: The monthly pay at the time of injury or the monthly pay at the time
disability begins or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after the injured employee resumes regular full-time employment
with the United States, whichever is greater.16 Office regulations provide that a recurrence of
disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition resulting from a previous injury or illness without a
new or intervening injury.17
In applying section 8101(4), the statute requires the Office to determine monthly pay by
determining the date of the greater pay rate, based on the date of injury, date of disability or the
date of recurrent disability. The Board has held that rate of pay for schedule award purposes is
the highest rate which satisfies the terms of section 8101(4).18
ANALYSIS -- ISSUE 2
On appeal, appellant contends that the pay rate for his schedule award should have been
based on his salary at the time his traumatic injury claim was approved by the Office on
March 12, 2004. The Board finds that this contention is without merit. In determining
appellant’s schedule award pay rate, the Office utilized the pay rate effective March 30, 2004,
the date he retired, $43,659.00 annually or $839.60 per week. This date also represents the date
disability began as appellant underwent authorized left knee surgery on March 29, 2004. Based
on the provisions of 5 U.S.C. § 8101(4), the Board finds that the Office properly determined that
the applicable date for determining appellant’s pay rate was March 30, 2004. The Board,
however, finds that the Office used the incorrect pay rate in calculating appellant’s schedule
award. The employing establishment stated that appellant’s pay rate as of January 2004 was
13

5 U.S.C. §§ 8101-8193.

14

5 U.S.C. § 8107.

15

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
16

5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623,
626 (2002).
17

20 C.F.R. § 10.5(x).

18

Robert A. Flint, 57 ECAB ___ (Docket No. 05-1106, issued February 7, 2006).

5

$44,500.00 annually or $855.77 per week. It also stated that he did not receive premium pay.
Further, the SF-50 form found in the case record indicated that the pay rate effective March 30,
2004 was $44,500.00 annually or $855.77 per week. The Board finds that appellant is entitled to
a schedule award based on an annual salary of $44,500.00 or $855.77 per week.
CONCLUSION
The Board finds that appellant has no more than a two percent impairment of the left
lower extremity. The Board further finds that appellant is entitled to a schedule award based on
the $855.77 weekly pay rate effective March 30, 2004. This case is remanded to the Office to
calculate the additional amount of compensation to which appellant is entitled (the difference
between the $839.60 per week previously paid and the correct weekly pay rate of $855.77).
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part with respect to the percentage of
impairment of the left lower extremity. The case is remanded in part for the recomputation of
the schedule award based on the correct rate of pay.
Issued: November 14, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI BULK
MAIL CENTER, Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-250
Issued: May 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2007 appellant filed a timely appeal from the March 13 and October 2,
2007 decisions of the Office of Workers’ Compensation Programs which denied her claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
back condition causally related to factors of her federal employment.
FACTUAL HISTORY
On November 27, 2006 appellant, then a 51-year-old mail handler, filed a Form CA-2,
occupational disease claim, alleging that factors of her federal employment caused a lumbosacral
strain with sciatica, degenerative changes and a right disc protrusion at L4-5. She did not stop
work. In an attached statement, appellant advised that, under Office file number 090397173, she
had an accepted lumbosacral strain with sciatica, under file number 090445297, an accepted
traumatic injury to the back, and under file number 092014031, an accepted claim for mild

degenerative changes and a protruding disc at L4-5.1 Following back surgery in February 2004,
she returned to limited duty. At the present, appellant was working full time with lifting
restrictions of 10 pounds continually and 20 pounds intermittently but contended that she
sometimes worked outside her restrictions and did not have ergonomically correct seating. This
aggravated her back condition, causing constant back pain that radiated into her leg and foot.
Appellant noted that she only worked between 24 and 32 hours per week. In a February 15,
2007 letter, she reiterated that she had a nonergonomic chair and could not work an entire pay
period due to back pain. Appellant described her medications and noted that she attended school
three nights a week studying criminal justice.
In reports dated November 7, 2005 to January 5, 2007, Dr. Stephen D. Heis, an attending
Board-certified physiatrist, reported appellant’s treatment regimen and that she was working
light duty. In a February 21, 2006 report, he noted her complaint of increased pain in the right
low back radiating into the right buttock with a trigger point in the right L5 area. On March 21,
2006 Dr. Heis advised that a magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated postoperative changes and her report that her back was aggravated by bending and
lifting. On May 23, 2006 he provided lifting restrictions of 20 pounds occasionally and 10
pounds frequently with partial restrictions on pulling, pushing, standing, walking, etc. until
November 23, 2006. In an August 22, 2006 report, Dr. Heis stated that appellant told him she
could not continue her occupation because of her radiating back pain. On November 3, 2006 he
advised that examination revealed normal strength and reflexes on the right with right L5
paraspinal tenderness. Dr. Heis stated that appellant’s chair was not supportive and that she
reported that she had to regularly lift trays of mail that weighed 20 to 30 pounds. He stated that
no large disc herniation was seen on the MRI scan reported earlier. Dr. Heis provided a duty
status report dated January 5, 2007 with restrictions of two to four hours sitting and reaching
above the shoulder, one to two hours standing, bending and twisting, eight hours of walking, four
hours of pulling/pushing, six to eight hours of simple grasping, four to six hours of fine
manipulation and a weight restriction of 15 pounds continuously and 20 pounds intermittently.
He noted that appellant planned to retire and concentrate on going to school full time.
The employing establishment advised that appellant did not have to pick up tubs of mail
and had never requested a different chair. A modified-duty assignment accepted by appellant on
August 19, 2006 provided that she was to flip-flop letters for eight hours, lifting one at a time
with a five-pound lifting restriction and no prolonged sitting. A modified-duty assignment
accepted by appellant on January 12, 2007 provided that she would flip-flop letters for six to
eight hours, place mail into trays for eight hours with lifting restrictions of 15 pounds
continuously and 20 pounds intermittently. Bending and stooping were limited to one to two
hours and twisting to two hours. In a February 27, 2007 statement, William N. Watts, supervisor
of distribution and operations, stated that he had read appellant’s February 15, 2007 letter and
concurred with her narrative regarding the job activities that she believed contributed to her
condition.

1

Appellant also reported that under file number 092029350 her claim was not approved. By decision dated
July 6, 2006, Docket Number 06-524, the Board affirmed a December 8, 2005 Office decision finding that appellant
had not sustained a back injury in January 2003 causally related to factors of her federal employment.

2

By decision dated March 13, 2007, the Office denied the claim on the grounds that
appellant submitted no medical evidence that provided a definitive diagnosis in support of her
claimed low back condition.
On April 12, 2007 appellant, through her attorney, requested a hearing. In a June 1, 2007
report, Dr. Martin Fritzhand, a Board-certified urologist, reported that appellant had sustained
multiple low back injuries at work with accepted conditions of mild degenerative changes at
L4-5 and a right disc protrusion at L4-5 with back surgery in February 2005. He advised that her
symptoms resulted in an inability to maintain employment and that she had retired. Physical
findings included diminished range of motion and evidence of nerve root damage with strength
and sensory loss involving the right lower extremity. Dr. Fritzhand also provided an impairment
analysis and concluded:
“It is not medically possible to segregate her complaints and findings into each
specific claim. Symptoms and physical findings are clearly related to the
degenerative changes and allowed conditions for which she did undergo operative
intervention. And, any activity which would exacerbate her underlying
musculoskeletal distress would result in symptoms of low back pain. Any
remunerative employment would only result in ongoing low back pain. Her
symptoms would certainly prevent her from maintaining remunerative
employment.”
At the hearing, held on August 7, 2007, her attorney argued that Dr. Fritzhand’s opinion
established causal relationship. By decision dated October 2, 2007, an Office hearing
representative affirmed the March 13, 2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”4 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee).

3

existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she has a
diagnosed back condition causally related to factors of her federal employment. At the time she
filed her claim on November 27, 2006, her modified position required that she flip letters for
eight hours a day with a five-pound lifting restriction and no prolonged sitting. Appellant’s
attending physiatrist, Dr. Heis, advised on May 23, 2006 that she could lift 10 pounds frequently
and 20 pounds occasionally. While appellant alleged that her back condition was caused by not
having an ergonomic chair, the employing establishment advised that neither she nor Dr. Heis
had ever requested one. Dr. Heis merely commented that her chair was not supportive. He did
not address how the chair contributed to appellant’s back condition, noting that she reported
increased pain and stated that she planned to retire so that she could attend school full time.
Dr. Heis also advised that appellant reported that she had to regularly lift mail trays weighing 20
to 30 pounds but did not otherwise discuss appellant’s modified job duties. The employing
establishment, however, advised that appellant did not have to lift mail tubs.
Dr. Fritzhand noted appellant’s history of back injuries at work and the MRI scan
findings of mild degenerative changes and a right disc protrusion at L4-5. He advised that “any
remunerative employment would only result in symptoms of low back pain” which would
5

Solomon Polen, 51 ECAB 341 (2000).

6

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

7

Id.

8

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

4

prevent employment. Dr. Fritzhand exhibited no knowledge of appellant’s modified job duties.
He did not address how her diagnosed back condition related to her employment activities.
The fact that work activities produced pain or discomfort revelatory of an underlying
condition does not raise an inference of causal relationship,9 and a diagnosis of “pain” does not
constitute the basis for payment of compensation.10 Likewise, the fear of future injury is not
compensable under the Act.11 While the medical opinion of a physician supporting causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute
certainty, neither can such opinion be speculative or equivocal. The opinion of a physician
supporting causal relationship must be one of reasonable medical certainty that the condition for
which compensation is claimed is causally related to federal employment and such relationship
must be supported with affirmative evidence, explained by medical rationale and be based upon
a complete and accurate medical and factual background of the claimant.12
The Board finds that the reports of Dr. Heis and Dr. Fritzhand are not sufficiently
rationalized to establish that appellant has an employment-related back condition caused by
factors of her federal employment in November 2006. Neither physician provided a clear
opinion that appellant’s diagnosed condition was due to work factors, did not provide a sufficient
description of her modified work duties or otherwise provide medical rationale explaining how
her back condition was caused by her federal employment in November 2006 rather than other
factors such as a continuation of the accepted back condition under other claims.13
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related back condition in November 2006.

9

Jimmie H. Duckett, 52 ECAB 332 (2001).

10

Robert Broome, 55 ECAB 339 (2004).

11

Manuel Gill, 52 ECAB 282 (2001).

12

Patricia J. Glenn, 53 ECAB 159 (2001).

13

Robert Broome, supra note 10.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 2, 2007 be affirmed.
Issued: May 5, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6