United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.Q., Appellant
and
U.S. POSTAL SERVICE, POSTAL ANNEX,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1782
Issued: December 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant, through his attorney, filed a timely appeal from a June 6,
2014 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish left ankle and right
knee injuries on April 10, 2013 while in the performance of duty.
FACTUAL HISTORY
On April 16, 2013 appellant, then a 36-year-old city carrier assistant, filed a traumatic
injury claim alleging that he experienced left ankle pain when he finished his route on
April 10, 2013. He stopped work on April 11, 2013.
1

5 U.S.C. § 8101 et seq.

In an April 16, 2013 duty status form report, Dr. Caio N. Goncalves, a Board-certified
family practitioner, provided a history that appellant injured his left ankle on April 10, 2013. He
also provided findings on physical examination and diagnosed a sprained left ankle and right
knee due to the April 10, 2013 incident. Dr. Goncalves advised that appellant could return to
work with limitations. He reiterated his diagnoses and physical limitations in an April 16, 2013
Florida workers’ compensation form report.
In an April 23, 2013 medical report, Dr. John D. Baldino, a cardiovascular disease
specialist, indicated that appellant’s ankle was being rechecked following treatment in an
emergency room seven days ago. He provided a history of his medical treatment, social and
family background. Dr. Baldino listed findings on physical and x-ray examination and provided
a clinical impression of sprain check. In another report dated April 23, 2013, he referred
appellant to an orthopedist/podiatrist. Dr. Baldino advised that he had not reached maximum
medical improvement. Appellant could not work until he was cleared by the specialist.
By letters and an e-mail dated April 16, 2013, employing establishment supervisors
controverted appellant’s claim, contending that he did not report his injury to them prior to that
day.
By letter dated April 25, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It notified him of the deficiencies of his claim and afforded
him 30 days to submit additional medical evidence. OWCP also requested that the employing
establishment submit medical evidence, if appellant had been treated at its medical facility.
In an April 16, 2013 narrative report, Dr. Goncalves provided a history that appellant
sustained a twisting injury while possibly walking at work three days ago. He reported a history
of his medical and social background. Dr. Goncalves listed findings on physical and x-ray
examination and reiterated his prior diagnoses of sprained right knee and left ankle.
In an April 16, 2013 right knee x-ray report, Dr. Leon Adler, a radiologist, found no acute
process. In a left ankle x-ray report also dated April 16, 2013, he found no evidence of fracture
or dislocation.
Unsigned reports dated April 16 and 23, 2013 contained the printed name of Anisleydi
Padron, a registered nurse, and provided physical examination findings and discharge
instructions related to appellant’s right knee and left ankle conditions.
Hospital instructions signed on April 23, 2013 by a registered nurse whose signature is
illegible indicated that appellant was evaluated by Dr. Baldino for a sprain check and that he
underwent diagnostic studies and a pulse oximetry on that day. The instructions listed his
medications and recommended that he follow up with an orthopedic surgeon or podiatrist.
In a June 7, 2013 decision, OWCP accepted that the April 10, 2013 incident occurred as
alleged. It denied appellant’s claim, however, finding that the medical evidence of record failed
to establish that his left ankle and right knee conditions were causally related to the accepted
employment incident.

2

On June 25, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
An April 16, 2013 form report cosigned by the same nurse whose signature is illegible
and Dr. Goncalves addressed the treatment of appellant’s left ankle and right knee conditions.
In a May 8, 2013 report, Dr. Jorge M. Cabrera, a Board-certified orthopedic surgeon,
provided a history of the April 10, 2013 employment incident, and appellant’s medical treatment,
social and family background. He listed findings on physical and x-ray examination and
provided an impression of left ankle sprain.
By letter dated November 8, 2013, appellant’s attorney requested a telephone hearing
rather than an oral hearing with an OWCP hearing representative.
In a February 10, 2014 decision, an OWCP hearing representative affirmed the June 7,
2013 decision. She found that the medical evidence of record was not sufficiently rationalized to
establish that appellant sustained an injury causally related to the accepted April 10, 2013
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
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.5
There are two components involved in establishing the fact of injury. 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.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

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

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).

3

medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
OWCP accepted that the April 10, 2013 incident occurred while appellant was in the
performance of duty but it found that the medical evidence failed to establish injuries as a result
of the accepted employment incident. The Board finds that appellant failed to provide sufficient
medical evidence to establish left ankle and right knee injuries causally related to the accepted
April 10, 2013 employment incident.
Dr. Goncalves’ April 16, 2013 duty status form report found that appellant sustained a
sprained left ankle and right knee due to the April 10, 2013 employment incident. Dr. Goncalves
did not explain how the accepted employment incident caused or contributed to appellant’s right
knee and left ankle conditions. The Board has found that medical opinion not based and not
fortified by medical rationale is of diminished probative value.10 Without medical rationale
explaining how the accepted employment incident supported Dr. Gonclaves’ opinion on causal
relationship, the Board finds that his April 16, 2013 report is insufficient to establish appellant’s
claim. The remaining reports from Dr. Goncalves reiterated his diagnoses of sprained right knee
and left ankle. The history of injury he provided was speculative. Dr. Gonclaves provided
findings on examination and addressed appellant’s medical treatment. However, he did not
opine that his conditions were causally related to the accepted April 10, 2013 employment
incident. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.11 The Board finds that Dr. Gonclaves’
reports are insufficient to establish appellant’s claim.
Dr. Cabrera’s May 8, 2013 report found that appellant had a left ankle sprain. While he
provided a history of the April 10, 2013 employment incident, he failed to provide a medical
opinion addressing whether the accepted employment incident caused or contributed to the
diagnosed condition.12 The Board finds that Dr. Cabrera’s report is insufficient to establish
appellant’s claim.
Dr. Baldino’s April 23, 2013 reports found that appellant had an ankle sprain and that he
was disabled for work until he was cleared by a specialist to whom he referred him for
examination. However, he did not provide any history of injury,13 or offer a specific opinion as
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

10

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

11

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007); A.D., 58 ECAB
149 (2006).
12

Id.

13

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

4

to how the accepted employment incident caused or contributed to appellant’s condition.14
Consequently, the Board finds that Dr. Baldino’s reports are of limited probative value and do
not establish appellant’s claim.
Similarly, the diagnostic test results of Dr. Adler are insufficient to establish appellant’s
claim. Dr. Adler addressed appellant’s right knee and left ankle conditions, but failed to provide
an opinion addressing whether his diagnosed conditions were caused or contributed to by the
April 10, 2013 employment incident.15 The Board finds, therefore, that his reports are
insufficient to establish appellant’s claim.
The unsigned report which contained the printed name of Nurse Padron and hospital
instructions which contained the illegible signature of a registered nurse have no probative value
as a nurse is not a physician as defined under FECA.16 The Board finds that there is insufficient
medical evidence of record to establish that appellant sustained left ankle and right knee injuries
causally related to the accepted April 10, 2013 employment incident.
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 left ankle and
right knee injuries on April 10, 2013 while in the performance of duty.

14

See cases cited, supra note 11.

15

Id.

16

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. 5 U.S.C. § 8102(2); M.B.,
Docket No. 12-1695 (issued January 29, 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1811
Issued: April 12, 2010

Case Submitted on the Record

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

JURISDICTION
On July 9, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 12, 2009 merit decision concerning his wage-earning capacity.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
May 11, 2008 based on his capacity to earn wages as a unit clerk.
FACTUAL HISTORY
On May 21, 2004 appellant, then a 55-year-old distribution clerk, filed an occupational
disease claim alleging that he sustained a cervical condition as a result of his federal employment
activities. The Office accepted his claim for cervical radiculopathy and cervalgia; aggravation of

cervical degenerative disc disease; cervical spondylosis and cervical spinal stenosis.1 Appellant
returned to light-duty work in June 2005. On March 29, 2006 the Office accepted his recurrence
claim and placed him on the periodic rolls, when the employing establishment withdrew his
light-duty job. Appellant was referred for vocational rehabilitation.
Appellant was treated by Dr. Frederic Butler, a Board-certified internist. In a report
dated December 20, 2005, Dr. Butler provided a history of appellant’s injury and treatment. On
examination, he found atrophy involving the deltoid muscle. Appellant had posterior neck pain
with cervical extension. Axial rotation was 30 degrees bilaterally; however, it elicited pain that
radiated into appellant’s upper extremities bilaterally. Axial rotation of the cervical spine
produced complaints of paresthesias. Dr. Butler diagnosed bilateral cervical radiculopathy
involving the C5-C6 dermatomal distribution; limited paresthesias of the bilateral hands; and
status post anterior cervical discectomy with fusion of C5-C6 and C6-C7. He stated that
appellant had significant permanent upper extremity impairment as a result of his accepted
employment injury. Dr. Butler opined that appellant was able to work with maximum lifting,
pushing and pulling restrictions of 20 pounds.
On July 25, 2007 the Office asked Dr. Butler to provide an opinion as to whether
appellant’s current condition and work restrictions had changed since his December 20, 2005
report. In a September 5, 2007 report, Dr. Butler diagnosed: cervical radiculopathy; bilateral
paresthesias in the hands; brachial neuritis and cervical spondylosis. He opined that appellant
could return to work with restrictions, which included: no lifting greater than 20 pounds
continuously or intermittently for a maximum of four hours per day; no pushing greater than 20
pounds per day and no reaching above his shoulders greater than 5 pounds. Appellant was
permitted to sit a maximum of four hours per day; stand four hours per day intermittently; walk
intermittently up to eight hours per day; bend and stoop four hours per day; twist continuously up
to eight hours per day; and perform simple grasping tasks and fine manipulation eight hours per
day.
Appellant participated in vocational rehabilitation efforts. His vocational rehabilitation
counselor determined that he was vocationally and medically able to work as a health unit clerk
(Dictionary of Occupational Titles (DOT) 245.362-014). A labor market survey showed that the
position was reasonably available in appellant’s commuting area and that it paid an average
weekly wage of $400.00. The position involved preparing and compiling records in the nursing
unit of a hospital or medical facility; recording patient information; copying medical information
from nurses’ records onto patient’s medical records; preparing patient discharge notices;
requisitioning supplies; answers telephone calls; distributing mail, newspapers, and flowers to
patients and transporting patients in wheelchairs or conveyances to locations within the facility.
The physical activity level pursuant to DOT was classified as “light,” which was defined by a
20-pound lifting/pushing/pulling tolerance. The counselor stated that the position was in
compliance with Dr. Butler’s restrictions. In her November 15, 2007 closure report, the
rehabilitation counselor stated that appellant had not obtained a position as a unit clerk, despite a
significant level of assistance over a 90-day period.
1

Appellant’s October 27, 1999 traumatic injury claim (No. xxxxxx866) was accepted for cervical strain. The
Office consolidated File No. xxxxxx850 with File No. xxxxxx866, which became the master file.

2

In an April 4, 2008 letter, the Office advised appellant that it proposed to reduce his
compensation based on its determination that he had the capacity to earn wages as a unit clerk. It
indicated that appellant’s vocational rehabilitation counselor had determined that he was
vocationally able to work as a unit clerk and that the position was reasonably available in his
commuting area. The Office noted that the weight of the medical evidence regarding appellant’s
ability to work rested with the opinion of, Dr. Butler, his treating physician, and stated that his
work restrictions would not prevent appellant from performing the position.
Appellant submitted an April 1, 2008 report from Dr. Butler, which reiterated his work
restrictions precluding pushing, pulling or lifting more than 20 pounds.
In a May 5, 2008 decision, the Office reduced appellant’s compensation effective
May 11, 2008 based on his capacity to earn wages as a unit clerk. It indicated that it relied on
Dr. Butler’s work restrictions in determining his ability to perform the duties of the position.
Appellant requested a telephonic hearing. At the August 7, 2008 hearing, he testified that
he was unable to perform the duties of a unit clerk, noting that his 20-pound lifting, pulling and
pushing restriction would prevent him from pushing patients in wheelchairs, as required by the
position. Appellant’s counsel contended that the duties required of the unit clerk position,
specifically the requirement of pushing patients in wheelchairs and on gurneys, violated
appellant’s work restrictions.
In a March 12, 2009 decision, the Office hearing representative affirmed the Office’s
May 5, 2008 decision. He found that the position of unit clerk met appellant’s vocational and
physical limitations, and fairly and reasonably represented his wage-earning capacity.
LEGAL PRECEDENT
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.2 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.3
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, his wageearning 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
2

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

3

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

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

3

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
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’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to 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
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.7
ANALYSIS
The Board finds that the Office did not properly reduce appellant’s compensation based
on his ability to earn wages as a unit clerk. The medical evidence from Dr. Butler, appellant’s
attending physician, established that he was no longer totally disabled; thus, the Office properly
referred him for vocational rehabilitation. The rehabilitation counselor found that appellant had
the physical and vocational capacity to perform the duties of a unit clerk. On appeal, appellant
argues that he is unable to work as a unit clerk because the position requires him to push patients
in wheelchairs and gurneys, a requirement that exceeds his 20-pound restriction.
The medical evidence is insufficient to support a finding that the position of unit clerk
was within appellant’s physical limitations. The issue of whether an employee has the physical
ability to perform a selected position is primarily a medical question that must be resolved by the
medical evidence.8 On July 25, 2007 Dr. Butler provided a history of appellant’s injury and
treatment and examination findings. He diagnosed bilateral cervical radiculopathy involving the
C5-C6 dermatomal distribution; limited paresthesias of the bilateral hands; and status post
anterior cervical discectomy with fusion of C5-C6 and C6-C7. Noting that appellant had
significant permanent upper extremity impairment as a result of his accepted employment injury,
he opined that appellant was able to work with maximum lifting, pushing and pulling restrictions
of 20 pounds.
The position of unit clerk is classified as “light,” with a 20-pound lifting/pushing/pulling
limitation, which would fall within the restrictions set forth by appellant’s attending physician.
However, the position also requires the employee to transport patients in wheelchairs or other
5

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

6

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
7

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
8

See Maurissa Mack, 50 ECAB 498 (1999); Robert Dickinson, 46 ECAB 1002 (1995).

4

conveyances to locations within the hospital. There is no factual evidence addressing how
pushing a heavy patient in a wheelchair correlates with pushing or pulling a stationary object.
There is also no medical evidence addressing whether appellant is capable, given his cervical and
upper extremity impairments, of pushing or pulling a wheelchair or bed, which might also
contain a patient or equipment on occasion. The Office has the burden of proof to justify
termination or modification of compensation benefits, and when a position is selected to
represent wage-earning capacity, the Office must show that a claimant has the physical ability to
perform the position.9 Although appellant’s treating physician noted his work restrictions, the
Office did not ask the physician to review the position description to determine whether
appellant could perform all the duties. As it is unclear whether appellant has the capacity to
work as a unit clerk, the Office has not met its burden of proof to reduce his compensation
benefits based on the selected position of unit clerk.
CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation effective
May 11, 2008 based on his capacity to earn wages as a unit clerk.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
March 12, 2009 decision is reversed.
Issued: April 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See supra notes 2 through 4 and accompanying text.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
CHICAGO FIELD OFFICE, Chicago, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0686
Issued: August 1, 2017

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 February 6, 2017 appellant, through counsel, filed a timely appeal from November 2,
2016 and January 30, 2017 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of 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 met his burden of proof to establish greater than the six
percent impairment of the left eye, for which he previously received a schedule award.
On appeal counsel asserts that, based on the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2009) (hereinafter A.M.A.,
Guides),3 appellant is also entitled to six percent visual impairment of the right eye because the
appropriate rating is for the visual system as a whole.
FACTUAL HISTORY
On March 31, 2004 appellant, then a 32-year-old civil aviation security specialist (air
marshal) injured his left eye during a training exercise. OWCP accepted left eye central serous
retinopathy. A treating Board-certified ophthalmologist, Dr. Stephen R. Kaufman, advised on
August 27, 2004 that appellant’s examination was stable and his visual acuity had improved. On
October 8, 2004 Dr. Philip J. Schaville, an optometrist, advised that appellant’s visual acuity had
improved to 20/20 in the left eye. He recommended annual observation.
On November 17, 2015 appellant, through counsel, filed a schedule award claim (Form
CA-7).
In a November 12, 2015 report, Dr. Neil Allen, Board-certified in internal medicine and
neurology, noted examining appellant on October 30, 2015. He described the history of injury,
appellant’s subsequent eye treatment, and noted current symptoms of reduced vision in the left
eye. Dr. Allen indicated that appellant denied using prescription or corrective devices including
glasses or contact lenses. Bilateral ophthalmic examination demonstrated no flame hemorrhages
or arteriovenous nicking. The macula and optic discs were within normal limits. Examination
with the traditional Snellen chart viewed at 20 feet demonstrated right eye 20/13, left eye 20/80,
and both eyes together 20/10. Dr. Allen noted that the findings yielded visual acuity scores
(VAS) of 110, 70, and 110 respectively, found in Table 12-2, Impairment of Visual Acuity, of
the sixth edition of the A.M.A., Guides. Dr. Allen then applied the formula found in Table 12-3
of the A.M.A., Guides used to calculate acuity-related impairment.4 He found that the sum of
appellant’s visual acuity scores (110 + 70 + 110 x 3 or 330) was 470. Dr. Allen then divided this
by 5 to yield a functional acuity score (FAS) of 94. In accordance with Table 12-3, he subtracted
appellant’s FAS of 94 from 100 and concluded that appellant had a whole person permanent
impairment of six percent.
On May 23, 2016 Dr. Kevin Yuhan, a Board-certified ophthalmologist and OWCP
medical adviser, noted his review of a statement of accepted facts and the medical record. He
indicated that there was no medical evidence between 2004 and 2015 when appellant reported a
change in his visual condition. Dr. Yuhan advised that, since the first documentation of severe
3

A.M.A., Guides (6th ed. 2009).

4

The formula indicates that VAS of the right eye, VAS of the left eye, and binocular VAS times 3 are added,
with the sum and divided by 5 to yield a functional visual acuity score. Id. at 289.

2

visual acuity impairment in the left eye was on November 12, 2015, that was the date maximum
medical improvement occurred. Regarding appellant’s impairment, he noted Dr. Allen’s acuity
examination findings for both eyes. Dr. Yuhan agreed with Dr. Allen’s conclusion that appellant
had a functional visual acuity score of 94 and that appellant had six percent permanent
impairment. He found that maximum medical improvement was reached on November 12,
2015, the date of Dr. Allen’s report.
On July 28, 2016 appellant was granted a schedule award for six percent permanent loss
of use of the visual acuity of his left eye, for 9.6 weeks of compensation, to run from
November 12, 2015 to January 18, 2016.
Appellant, through counsel, requested reconsideration on November 7, 2016. He asserted
that, based on the A.M.A., Guides, appellant was entitled to a rating for both eyes.
In a December 1, 2016 report, Dr. Yuhan repeated his impairment calculation. He further
advised that, following review of counsel’s November 7, 2016 correspondence, although
appellant’s only problem was with his left eye and the right eye was within normal limits, the six
percent impairment was for the entire visual system as computed using the rating system found
in the A.M.A., Guides. Dr. Yuhan noted that the system in the A.M.A., Guides required him to
incorporate visual findings for both eyes in reaching his conclusion that appellant had six percent
visual impairment. He concluded that since the impairment rating was computed using
measurements for both eyes and visual fields in the overall calculation, there was no separate
impairment for the right eye because the six percent impairment awarded was for the entire
visual system involving both eyes.
In a merit decision dated January 30, 2017, OWCP denied modification of its prior
decision. It found that, based on the opinion of its medical adviser, Dr. Yuhan, appellant was not
entitled to additional impairment of his eyes.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of any employment injury.5
The schedule award provision of FECA6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued
5

See Tammy L. Meehan, 53 ECAB 229 (2001).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

3

after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
Chapter 12 of the sixth edition is to be utilized in assessing visual impairment.
For 100 percent loss of an eye, as with blindness, FECA provides a maximum 160 weeks
of compensation.10 A loss of 80 percent or more of the vision of an eye is the same as for loss of
the eye.11 Partial losses are compensated proportionately.12 Although the A.M.A., Guides
provides that impairment ratings should be based on the best-corrected visual acuity,13 FECA
mandates that the degree of loss of vision must be determined without regard to correction.14
Neither FECA nor OWCP regulations provide for the payment of a schedule award for a whole
person. A claimant is not entitled to such an award.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.16
ANALYSIS
The Board finds this case is not in posture for decision. On November 2, 2016 OWCP
granted appellant a schedule award for six percent permanent impairment of the left eye, based
on the calculations provided by Dr. Allen, an attending neurologist, as reviewed by its medical
adviser, Dr. Yuhan, an ophthalmologist. The physicians agreed that appellant had six percent
visual impairment. However, the Board finds that Dr. Allen’s report, which was relied upon by
Dr. Yuhan, contains a computation error.
Dr. Allen noted that appellant denied using corrective glasses or contact lenses. He
applied Snellen chart findings of appellant’s vision in each eye and his binocular function to
Table 12-2, Impairment of Visual Acuity.17 Dr. Allen properly found that, based on appellant’s
Snellen chart findings, he had a VAS of 110 in the right eye, 70 in the left eye, and 110 in both
eyes. He then calculated appellant’s acuity-related impairment using the formula found in Table
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

Supra note 6 at § 8107(c)(5).

11

Id. at § 8107(c)(14).

12

Id. at § 8107(c)(19).

13

Supra note 3 at Chapter 12.2b, page 286.

14

Supra note 12.

15

S.K., Docket No. 08-848 (issued January 26, 2009).

16

See supra note 9 at Chapter 2.808.6(f) (February 2013).

17

Supra note 3 at 288.

4

12-3,18 using appellant’s VAS findings. The formula indicates that the VAS of 110 in the right
eye is to be added to the VAS of 70 in the left eye which is added to the VAS in both eyes of 110
times three (or 330). Dr. Allen found a total VAS score of 470, which as provided in Table 12-3,
he then divided by 5 to find a FAS of 94. However, adding 110 plus 70 plus 330 yields 510 not
470. 510 divided by 5 yields a FAS score of 102. Table 12-3 then indicates that the VAS score
is deducted from 100 to determine the degree of impairment. Dr. Allen deducted appellant’s
FAS of 94 from 100 to find six percent impairment. However, deducting 102 from 100 yields 0
impairment. Dr. Yuhan merely adopted Dr. Allen’s finding without further explanation. As
there is a computation error, the case must be remanded to OWCP for further development.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.19
Once it undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.20 Herein, appellant submitted medical
evidence from Dr. Allen in support of his schedule award claim. OWCP began to develop the
evidence by seeking an opinion from Dr. Yuhan, its medical adviser. As noted, the schedule
award granted in this case was based on an incorrect calculation.
On remand, OWCP should further develop the medical evidence of record by requesting
its medical adviser to provide a reasoned opinion regarding appellant’s left eye impairment,
explaining the basis of impairment under the sixth edition of the A.M.A., Guides. If its medical
adviser is unable to render a reasoned opinion fully explaining the application of the A.M.A.,
Guides, OWCP shall refer appellant to an appropriate Board-certified specialist for a second
opinion regarding the extent of appellant’s eye impairment. Following this and further
development deemed necessary, OWCP shall issue an appropriate merit decision on appellant’s
schedule award claim.21
CONCLUSION
The Board finds this case is not in posture for decision regarding appellant’s impairment
for visual acuity loss.

18

Id. at 289.

19

Phillip L. Barnes, 55 ECAB 426 (2004).

20

L.P., Docket No. 12-168 (issued August 22, 2012).

21

As to counsel’s assertion on appeal that appellant was entitled to an additional award for the right eye, there is
nothing in the A.M.A., Guides to support his assertion. While the impairment calculation under Table 12-3 is for
total visual acuity loss, the formula used to calculate impairment contains specific visual values for each eye in
reaching the total impairment. Therefore, although a visual impairment could be for a single eye, as in appellant’s
case, the visual impairment found under Table 12-3 is for total visual impairment, taking into consideration vision
measurements found for each eye.

5

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2017 and November 2, 2016
decisions of the Office of Workers’ Compensation Programs are set aside, and the case is
remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: August 1, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
CUSTOMS & BORDER PROTECTION,
)
Jamaica, NY, Employer
)
___________________________________________ )
D.C., Appellant

Appearances:
Thomas Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-996
Issued: January 13, 2010

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 March 10, 2009 appellant filed a timely appeal from the December 8, 2008 decision
of the Office of Workers’ Compensation Programs, which denied her request for reconsideration.
Because more than one year has elapsed between the last merit decision dated July 18, 2007 and
the filing of this appeal, the Board lacks jurisdiction to review the merits of this claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 29, 2005 appellant, then a 48-year-old import specialist, sprained her left foot
and ankle while in the performance of duty. She stopped work on March 29, 2005. On June 21,
2005 the Office accepted her claim for sprain/strain of the left ankle, chondromalacia of the left

patella and sprain/strain of the left calcaneofibular. Appellant was placed on the periodic rolls
and received wage-loss compensation benefits. On September 12, 2005 she returned to work
part time with limitations.
In a June 19, 2006 report, Dr. Howard Adelglass, a Board-certified physiatrist and a
treating physician, noted that appellant had epidural blocks on April 6 and 17, 2006 to alleviate
her left lower extremity sympathetic dystrophy. He noted that this only improved her pain and
swelling momentarily. Dr. Adelglass recommended that appellant continue part-time work. He
also included nerve conduction studies (NCS) from July 29 and August 1, 2005, which were
normal.
On June 22, 2006 the Office referred appellant for a second opinion to Dr. Wayne
Kerness, a Board-certified orthopedic surgeon. In a July 27, 2006 report, Dr. Kerness reviewed
appellant’s history of injury and treatment and examined her. He diagnosed chondromalacia
patella left knee resolved and post left ankle sprain resolved. Dr. Kerness determined that
appellant was fully recovered and had reached maximum medical improvement. He indicated
that physical therapy was no longer warranted.
In a September 15, 2006 report, Dr. Adelglass opined that appellant was unable to work
as a result of a nonwork-related injury in which she sustained a cervical lumbar sprain and
whiplash injury. He noted that previously she was unable to work due to her work-related foot,
ankle and leg injury. Dr. Adelglass indicated that appellant was still receiving physical therapy
because of her pain when weight bearing.
The Office found a conflict in medical opinion between Dr. Adelglass and Dr. Kerness
regarding the resolution of her accepted conditions and work restrictions. On November 1, 2006
it referred appellant, together with a statement of accepted facts and the medical record, to
Dr. Donald Forman, a Board-certified orthopedic surgeon, for an impartial medical evaluation.
In a November 14, 2006 report, Dr. Forman reviewed appellant’s history and medical treatment.
He advised that she was post left ankle sprain and left knee sprain. Dr. Forman found that
appellant could return to regular duty. He did not find any evidence of nerve damage in the left
lower extremity or of post-traumatic reflex sympathetic dystrophy.
By letter dated May 25, 2007, the Office requested that Dr. Forman clarify his report as
to whether the accepted condition had resolved. In a May 30, 2007 addendum, Dr. Forman noted
that when he saw appellant on November 13, 2006 she had subjective complaints of pain in her
left ankle, left thigh and left knee. However, he found no objective physical evidence to
substantiate her complaints. Dr. Forman opined that appellant was capable of returning to her
regular occupation as an import specialist without any employment limitations.
On June 14, 2007 the Office proposed to terminate appellant’s compensation for wage
loss and medical benefits on the basis that the medical evidence, as represented by the opinion of
Dr. Forman, established that she had no continuing work-related disability as a result of her
March 29, 2005 work injury.
The Office received reports dated June 29 and July 1, 2007 from Dr. Adelglass, who
opined that appellant was unable to work due to a nonwork-related injury. Dr. Adelglass stated

2

that she was experiencing radiculopathy of the cervical and lumbar spines. Prior to the neck and
back injury, appellant was working part time due to her foot, ankle and leg injury, which was
worked related. Dr. Adelglass advised that she was continuing to receive physical therapy for
her left ankle, foot and leg injury and had pain with weight bearing. He stated that appellant was
unable to work until September 31, 2007.
By decision dated July 18, 2007, the Office terminated appellant’s compensation benefits
effective that day. It found that the weight of the medical evidence established that her
injury-related disability and residuals ceased.
In a letter dated July 5, 2008, appellant’s representative requested reconsideration,
contending that the Office did not accept all of the injuries sustained by appellant on March 29,
2005 and that her claim should be expanded. He argued that the Office did not meet its burden
to terminate appellant’s compensation benefits and that Dr. Adelglass provided a rationalized
opinion that she continued to have residuals from her work-related injuries. Appellant’s
representative also alleged that the reports of Drs. Kerness and Forman were not sufficient as
they did not consider her left personal neuropathy/causalgia/neuropraxia, as related to her
March 29, 2005 employment injury.
In a February 25, 2008 report, Dr. Adelglass repeated appellant’s history of injury and
treatment, including that she sustained a nonwork-related motor vehicle accident. He diagnosed
left peroneal neuropathy, causalgia/neuropraxia, status post ankle sprain and cervical/lumbar
radiculopathy, which was not work related. Dr. Adelglass indicated that appellant had a
permanent moderate disability with limited use of her left leg, ankle and foot. Appellant could
work in a restricted-duty position but her nonwork-related injury prohibited her from returning to
work.
In an August 21, 2008 letter, the Office advised appellant that it received a
reconsideration request but the basis of the request was unclear. Appellant was advised that no
further action would be taken. She was advised of the type of evidence or argument needed to
support a reconsideration request.
On August 26, 2008 appellant’s representative repeated his request for reconsideration.
He reiterated his request for reconsideration on October 30 and November 20, 2008. Counsel
also repeated that additional evidence accompanied his request. However, there was no
additional evidence with his request.
By decision dated December 8, 2008, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that her request neither raised
substantial legal questions nor included new and relevant evidence and, thus, it was insufficient
to warrant review of its prior decision.

3

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,1 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provides that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, set forth arguments and contains evidence that: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; and (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.2
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.3
ANALYSIS
Appellant disagreed with the termination of her compensation benefits and requested
reconsideration. The underlying issue on reconsideration was whether the Office properly
terminated her compensation benefits on July 17, 2007 finding that she no longer suffered from
her injury-related disability. However, appellant did not provide any relevant or pertinent new
evidence relevant to the issue.
On reconsideration appellant contended that the Office did not accept all of the injuries
she sustained on March 29, 2005. The Board notes that this argument is not directly relevant or
pertinent to the issue of whether the Office properly terminated her compensation benefits
effective July 18, 2007. Appellant also alleged that the Office did not meet its burden to
terminate appellant’s compensation benefits, as she continued to have residuals of the March 29,
2005 injury and that the reports of Drs. Kerness and Forman did not consider her left peroneal
neuropathy/causalgia/neuropraxia as related to her March 29, 2005 employment injury.
However, this was not an accepted condition. Additionally, the issue of whether other medical
conditions are work related is a medical issue which must be shown by the medical evidence and

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b).

3

Id. at § 10.608(b).

4

not lay assertions.4 These arguments are not sufficient to require the Office to review the merits
of appellant’s claim.
The February 25, 2008 medical report from Dr. Adelglass is insufficient to require the
Office to review the merits of his claim, as it is cumulative. He essentially repeated his previous
findings and conclusions. The record contains NCS which were previously of record. The
submission of evidence which repeats or duplicates evidence that is already in the case record
does not constitute a basis for reopening a case for merit review.5 The Board also notes that
Dr. Adelglass indicated that appellant’s nonwork-related injury prohibited her from returning to
work, which would not support continued work-related residuals or disability. Appellant did not
provide any relevant and pertinent new evidence sufficient to require the Office to reopen her
claim for a merit review.
The evidence and argument raised by appellant on reconsideration do not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant new
argument not previously considered and does not constitute relevant and pertinent new evidence
not previously considered by the Office. Therefore, the Office properly denied her request for
reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

4

Causal relationship is a medical issue and the medical evidence generally required to establish causal
relationship is rationalized medical opinion evidence. Y.J., 60 ECAB ___ (Docket No. 08-1167, issued
October 7, 2008).
5

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald,
50 ECAB 185 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs December 8, 2008 is affirmed.
Issued: January 13, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HEALTH ADMINISTRATION CENTER,
Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1741
Issued: November 23, 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 June 19, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated May 29, 2007 finding that she had not established an injury
causally related to her federal employment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a right eye condition in the performance of duty.
FACTUAL HISTORY
On November 22, 2006 appellant, then a 38-year-old program analyst, filed a traumatic
injury alleging on November 20, 2006, while sitting at her desk, something fell from the ceiling
into her right eye. She sought aid from coworkers, Elain Neloms and Paradise Stewart, who
were unable to remove the foreign body from her eye. Appellant sought treatment at a local

emergency room. Ms. Neloms completed a witness statement noting that appellant asked her to
examine her eye, her eye was red and swollen and that she attempted to blow into appellant’s eye
to remove the foreign body. She noted that Ms. Stewart tried to flush appellant’s eye with
eyeclear. In an additional statement, appellant noted that something fell in her eye on
November 20, 2006. She sought treatment from the local emergency room and was diagnosed
with a cornea scratch, treated with antibiotics and eye drops and released. Appellant consulted
with her optometrist on November 27, 2006 who stated that her eye was inflamed and ridged and
prescribed additional eye drops. She returned on November 29, 2006 and the optometrist could
not identify the cause of her discomfort. Appellant sought treatment from a different physician
on December 8, 2006.
Appellant submitted instructions regarding care of her right eye corneal abrasion on
November 20, 2006 from the North Suburban Medical Center.1 Dr. Kurt Kuskie, an optometrist,
completed a form report on November 27, 2006 and listed appellant’s date of injury as
November 21, 2006. He stated that appellant had a foreign body sensation in her right eye and
that she removed the foreign body the morning of November 27, 2006. Dr. Kuskie diagnosed a
kerititis and stated that no foreign body was found in appellant’s eye. He indicated with a
checkmark “no” that appellant’s condition was not caused or aggravated by an employment
activity.
In a report dated January 8, 2007, Dr. James Weingart, a Board-certified family
practitioner, stated that he examined appellant on December 14, 2006 and diagnosed a
hordeolum in her left upper eyelid. He noted appellant’s history of a foreign body in her eye and
prior diagnosis of corneal abrasion. Dr. Weingart prescribed medication. Appellant returned to
the doctor’s office on December 28, 2006 and received an additional prescription and referral to
an additional ophthalmologist.
In a note dated February 16, 2007, Dr. William G. Self, Jr., a Board-certified
ophthalmologist, noted a bump under appellant’s left upper eyelid. He noted that appellant’s
visual acuity was normal for her and stated that she had not worn her contact lens since the bump
started.
The Office requested additional factual and medical evidence regarding appellant’s claim
on April 24, 2007. The Office allowed 30 days for a response. In a report dated February 14,
2007, Dr. Weingart clarified his January 8, 2007 report noting that appellant’s original injury
was to her right eye and that she subsequently developed problems in her left eye.
Appellant completed a claim for compensation for leave without pay usage from
January 19 to May 12, 2007. Dr. Self completed an additional report on May 24, 2007 and
diagnosed a chalazion in the middle third of the left upper lid. He stated: “This is a lesion that
comes from a variety of different reasons but most often that could not be discerned. I do not
think this is related to any kind of industrial or work-related situation.”

1

These instructions were not signed by a physician.

2

By decision dated May 29, 2007, the Office denied appellant’s claim for right eye injury.
The Office stated that appellant had not submitted sufficient medical evidence to establish that
her right eye condition resulted from the accepted work events on November 20, 2006.
LEGAL PRECEDENT
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.2 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.3 This medical opinion must be based
upon a complete factual and medical background with an accurate history of appellant’s
employment injury. The weight of the medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.4
ANALYSIS
The Office accepted that appellant sustained the employment incident alleged at the time,
place and in the manner alleged. However, it found that appellant had not submitted the
necessary medical opinion evidence to establish a medical condition arising from this
employment incident. The Board finds that appellant has not submitted probative medical
evidence to establish that the employment incident on November 20, 2006 caused any personal
injury.
The Office advised appellant of the evidence required to establish her claim, however,
appellant failed to submit such evidence. Appellant submitted emergency room discharge
instructions regarding a corneal scratch of her eye, however, these instructions were not signed
by a physician. It is well established that, to constitute competent medical opinion evidence, the
medical evidence submitted must be signed by a qualified physician.5 As these instructions were
not signed, there is no medical diagnosis of a corneal scratch.

2

20 C.F.R. § 10.5(ee).

3

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

4

James Mack, 43 ECAB 321, 328-29 (1991).

5

Vickey C. Randall, 51 ECAB 357, 360 (2000); Arnold A. Alley, 44 ECAB 912, 921 (1993). Merton J. Sills,
39 ECAB 572, 575 (1988).

3

Appellant submitted a November 27, 2006 form report from Dr. Kuskie, an optometrist,
diagnosing kerititis of the right eye and indicating that this condition was not due to her
employment. Dr. Weingart, a Board-certified family practitioner, and Dr. Self, a Board-certified
ophthalmologist, diagnosed left eye conditions. Dr. Self indicated in his May 24, 2007 report
that appellant’s left eye condition was not employment related. The medical evidence of record
negates appellant’s claim for an employment-related eye condition. Appellant has failed to
submit any probative medical evidence establishing that she sustained an injury in the
performance of duty and the Office properly denied appellant’s claim for compensation.6
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that she sustained an eye condition as a result of her November 20, 2006
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 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

J.Z. 58 ECAB ___ (Docket No. 07-531, issued May 11, 2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Belmar, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1592
Issued: December 27, 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 August 1, 2016 appellant, through counsel, filed a timely appeal from an April 26,
2016 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted December 14, 2013 employment incident.
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.

FACTUAL HISTORY
On December 27, 2013 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries in a motor vehicle accident on
December 14, 2013 while in the performance of duty. He reported on the claim form that he was
rear-ended by another vehicle. The record indicates that appellant returned to work on
December 17, 2013, and then was off work from January 7 to May 18, 2014.
OWCP advised appellant on January 9, 2014 that medical evidence was necessary to
substantiate his claim. It requested that he submit a narrative report from his treating physician
which provided a diagnosis and established causal relationship between the diagnosed condition
and the employment incident. Appellant was afforded 30 days to submit this additional
evidence.
Appellant received emergency room treatment on December 14, 2013.3 Diagnostic tests
included a left shoulder x-ray that was reported as normal by Dr. Leonard Zawodniak, a
radiologist, and a cervical spine x-ray that Dr. Zawodniak indicated showed degenerative
changes with no fracture.
In a report dated January 7, 2014, Dr. David Dickerson, a Board-certified orthopedic
surgeon, reported that appellant was involved in a motor vehicle accident and his left shoulder hit
the seat. He reported that appellant had pain in the left shoulder, and left side of the neck, with
paresthesia in the arm. Dr. Dickerson provided results on examination and diagnosed brachial
neuritis or radiculitis, and cervical disc degeneration. He also completed a duty status report
(Form CA-17) indicating appellant was totally disabled for work.
By decision dated February 11, 2014, OWCP denied the claim for compensation. It
accepted that a motor vehicle accident occurred as alleged, but found the medical evidence was
insufficient to establish a diagnosed injury causally related to the December 14, 2013
employment incident.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on March 11, 2014. A hearing was held on September 12, 2014.
The medical evidence submitted included a February 17, 2014 report from Dr. John
Coccaro, a Board-certified anesthesiologist, who indicated that appellant was involved in a motor
vehicle accident on December 14, 2013. Dr. Coccaro provided results on examination and
diagnosed cervical radiculitis, displaced cervical disc without myelopathy, and cervical spinal
stenosis.
Appellant also submitted treatment reports from March 11 to June 20, 2014 from
Dr. Kulbir Walia, Board-certified in pain medicine. In the March 11, 2014 report, Dr. Walia
provided a history that appellant was rear-ended at work three months earlier and now reported
left neck pain radiating down the left arm. He indicated that a magnetic resonance imaging
(MRI) scan dated January 18, 2014 had shown disc osteophyte complex at C3-7. Dr. Walia
3

There is a hospital form report that is difficult to read and provides an illegible signature.

2

provided results on examination and diagnosed cervical herniated nucleus pulposus (HNP) and
cervical radiculopathy.
By decision dated November 3, 2014, a hearing representative4 affirmed the February 11,
2014 decision. The hearing representative found the medical evidence was insufficient to
establish the claim for compensation.
Appellant, through counsel, requested reconsideration on April 9, 2015. Counsel noted
that the November 3, 2014 decision was issued by a different hearing representative. As to the
medical evidence, appellant submitted a March 1, 2015 report from Dr. Walia, who reviewed
appellant’s treatment and the diagnostic studies. Dr. Walia diagnosed cervical HNP, cervical
radiculopathy, myalgia, and myositis. He opined that “the causality of neck pain radiating down
the left arm involving the left first and second digits is established to the motor vehicle accident”
of December 14, 2013, noting that appellant denied having prior symptoms. Dr. Walia further
opined:
“The acceleration and deceleration forces suffered by the neck and spine at the
time of the impact led to the development of pain secondary to trauma to the soft
tissue as well as spine. As documented, [appellant] suffered from myofascial
pain, cervical facet joint[-]related pain, and cervical radicular pain secondary to
cervical spine disc pathology. Even though MRI of the cervical spine completed
on [January 18, 2014] revealed multilevel loss of normal disc height, [appellant]
had not sought medical opinion and care for neck and left upper extremity
symptoms until after the motor vehicle accident of review.”
Dr. Walia indicated that appellant’s injuries were fixed and permanent, with periodic pain
and discomfort, limitations, and restrictions of the cervical region. He noted that appellant’s
condition would worsen with age, and future medical treatment may include physical therapy
and possible surgery.
By decision dated April 17, 2015, OWCP reviewed the merits and denied modification.
It found the medical evidence was not sufficiently rationalized to establish the claim.
On August 18, 2015 appellant, through counsel, requested reconsideration. He submitted
a May 29, 2015 report from Dr. Casey Lee, a Board-certified orthopedic surgeon. Dr. Lee
provided a history of a December 14, 2013 motor vehicle accident where appellant was rearended and there was a whiplash-type movement of the back and neck. He provided results on
examination and diagnosed cervical spondylosis with left-side radiculopathy. In a note dated
June 9, 2015, Dr. Lee reported that December 15, 2013 x-rays showed no significant abnormality
of the cervical spine except flattened cervical lordosis. He also indicated that a cervical spine
MRI scan dated January 18, 2014 showed mild degenerative changes.

4

The decision indicated the hearing representative who presided over the September 12, 2014 hearing was no
longer with the Branch of Hearings and Review, and the decision was written by another hearing representative.

3

In a decision dated November 16, 2015, OWCP reviewed the case on its merits and
denied modification. It found the medical evidence was insufficient to establish the claim for
compensation.
Appellant, through counsel, again requested reconsideration on February 12, 2016. He
submitted a February 2, 2016 report from Dr. Lee. Dr. Lee opined, “this patient’s symptoms of
neck pain and radicular symptoms to his arm are causally related to the accident of
December 14, 2013. This patient has degenerative changes of the disc at C5-6 with bilateral
neuroforaminal narrowing and moderate central canal narrowing. It is probable that this patient
had some degenerative changes of the cervical spine prior to the accident, but the patient’s
current symptoms are precipitated and aggravated by the accident.”
By decision dated April 26, 2016, OWCP reviewed the merits and denied modification.
It found the medical evidence was not sufficient to establish the claim for compensation.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish that he or
she sustained an injury while in the performance of duty.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. The second component is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.6
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
In the present case, appellant filed a traumatic injury claim alleging that he sustained
injuries in a December 14, 2013 motor vehicle accident. He alleged that he was rear-ended by
another vehicle while in the performance of duty OWCP has accepted that the incident occurred
as alleged.
The issue is whether the medical evidence is sufficient to establish an injury causally
related to the December 14, 2013 motor vehicle accident. The Board has reviewed the medical
5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

4

evidence and finds it is sufficient to require further development. Appellant received emergency
room medical treatment on December 14, 2013. Dr. Dickerson treated appellant on January 7,
2014 and reported a history of the motor vehicle accident and diagnosed a brachial neuritis and
cervical disc degeneration. In a February 17, 2014 report, Dr. Coccaro provided a history of the
December 14, 2013 accident and diagnosed cervical radiculitis, displaced cervical disc without
myelopathy, and cervical spinal stenosis.
Appellant received treatment from Dr. Walia as of March 11, 2014. In a March 1, 2015
report, Dr. Walia provided a history of treatment and opined that appellant had sustained cervical
injuries with radiculopathy from the December 14, 2013 motor vehicle accident, noting
acceleration and deceleration forces to the neck and spine. In a May 29, 2015 report, Dr. Lee
noted a whiplash-type movement occurred with the December 14, 2013 accident and he
diagnosed cervical spondylosis with left-side radiculopathy. In his February 2, 2016 report,
Dr. Lee opined that the motor vehicle accident had aggravated the cervical degenerative
condition.
The medical record provides sufficient evidence supporting a cervical injury resulting
from the December 14, 2013 motor vehicle accident to require OWCP to further develop the
medical evidence on the issue of a diagnosed condition causally related to the employment
incident.8 Although appellant has the burden of proof to establish the essential elements of his
claim, OWCP shares responsibility in the development of the evidence.9 On remand OWCP
should further develop the medical evidence as necessary on the issue of causal relationship.
After such further development as it deems appropriate, OWCP should issue a de novo decision
with respect to appellant’s claim.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
further development of the medical evidence.

8

See J.S., Docket No. 15-0282 (issued March 23, 2015) (medical evidence supporting an injury from a motor
vehicle accident sufficient to require further development); B.G., Docket No. 12-1944 (issued April 9, 2013)
(uncontroverted evidence supported causal relationship between motor vehicle accident and spinal conditions
required further development of the evidence).
9

See Udella Billups, 41 ECAB 260, 269 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 26, 2016 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: December 27, 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

6