United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF DEFENSE, COMMISSARY, )
Tobyhanna, PA, Employer
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__________________________________________ )
A.B., Appellant

Appearances:
Ronald J. Mishkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2508
Issued: July 10, 2009

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 September 19, 2008 appellant, through her attorney, filed a timely appeal of the
Office of Workers’ Compensation Programs’ merit decision dated July 1, 2008. 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 met her burden of proof to establish that she developed an
emotional condition due to factors of her federal employment.
FACTUAL HISTORY
On October 10, 2007 appellant, then a 42-year-old commissary support clerk, filed a
occupational disease claim alleging that she developed excessive daytime sleepiness, inability to
drive, sleep apnea, depression, stress, blurred vision, carpal tunnel, severe back pain, diabetes
and high blood pressure due to her employment duties. Her job duties including performing
back-up for bank runs, changing prices, running labels, produce pricing as well as placing orders
in a timely manner, performing inventory, billing for utilities and processing the vendor credit

memos. Appellant noted that the employing establishment was undergoing renovation and that a
coworker had retired increasing the pressure. She noted that formally four employees worked in
her office and that she and a coworker currently performed all the duties. She stated, “The
overwhelming pressure of these things to be done is extremely stressful….”
In a report dated August 30, 2007, Dr. Steven Gold, an internist, stated that appellant was
depressed and suffering from significant stress at work and home rendering her totally disabled.
Appellant also submitted a series of work release notes from Dr. Gold, dated August 3 through
November 15, 2007 indicating that she was disabled due to depression. On October 11, 2007
Dr. Corazon A. Guerra, a psychiatrist diagnosed severe depression.
Jerry Durham, appellant’s supervisor, completed a statement on October 23, 2007, stating
that appellant had never reported stress at work or requested accommodation. He noted that she
had stated that she felt that she was doing the work of four people. Mr. Durham asserted that the
employing establishment employed five people in the commissary five years previously when
additional work was performed in the store. He further stated that the renovations did not impact
appellant’s work.
In a letter dated November 13, 2007, the Office requested additional factual and medical
evidence from appellant. On December 3, 2007 appellant responded and noted that her blood
pressure was elevated due to on-the-job stress. She stated, “Doing the work and duties as
assigned which has caused me to be in the state I’m in now, totally disabled.”
Mr. Durham completed an additional statement on December 12, 2007.
After
January 2007, appellant’s duties were increased to include helping with the bank run. However,
her duties did not increase due to the renovation. Mr. Durham stated that the shortage of staff
did not affect appellant and noted that she had received outstanding performance ratings for the
last two years. Although she stated that she was doing the work of four or five people, the
workload had been transferred to headquarters.
On December 3, 2007 Dr. Guerra diagnosed major depression, panic disorder and
post-traumatic stress disorder with severe work stress. In a form report dated December 4, 2007,
she diagnosed major depression and indicated with a checkmark “yes” that the condition was
caused or aggravated by an employment activity.
By decision dated January 17, 2008, the Office accepted as a compensable factor that
appellant had an additional duty of helping with the bank run. However, it denied her claim
finding, that the medical evidence was not sufficient to establish a causal relationship between
the accepted factor and her diagnosed condition.
Appellant’s attorney requested reconsideration on March 11, 2008 and alleged that the
acceptance of appellant’s claim by the Office of Personnel Management should be considered by
the Office. Appellant submitted a decision by the Merit System Protection Board denying her
claim on the grounds that she had not established that the employing establishment retaliated
against her because she engaged in protected activities. She contended that she received a lower
performance evaluation after she filed a complaint alleging race and gender discrimination.
Appellant alleged that the employing establishment discriminated against her when her

2

supervisor charged her with being absent without leave from December 18, 2001 through
January 14, 2002. She alleged that her supervisor made a disclosure of an abuse of authority.
On January 16, 2008 the Office of Personnel Management approved appellant’s application for
disability retirement due to a mental condition.
On October 7, 2002 appellant alleged that her supervisor had observed employees
through the security cameras. She alleged that the cameras were installed to prevent customer
theft and not for employee surveillance. Appellant found it unsettling to be observed by camera
and indicated that this situation was stressful.
In a form report dated January 21, 2008, Dr. Guerra diagnosed depression and severe
anxiety. Appellant attributed her condition to the workload given by her supervisor. Dr. Maribel
Garcia-Jones, a clinical psychiatrist, noted that she experienced prejudice and harassment for the
duration of her job. On November 27, 2007 appellant stated that discussion of work seemed to
cause a panic reaction as she feared a breakdown at work. Dr. Garcia-Jones diagnosed extreme
depression, anxiety and fear.
In a report dated November 30, 2007, Dr. Gold noted that appellant felt pressure at work
due to the requirements of her job, the difficulties of her work circumstances and the pressure
from her supervisor. He diagnosed anxious depression and stated that she was totally disabled.
Dr. Gold opined that the cause of appellant’s psychiatric breakdown was work-related stressors.
Appellant’s attorney requested clarification from Dr. Gold on February 13, 2008 and
mentioned her work duty of helping with bank runs and the decreased staff. In a March 6, 2008
note, Dr. Gold stated that appellant reported an escalation of her job duties prior to her emotional
condition.
By decision dated July 1, 2008, the Office denied appellant’s claim for an emotional
condition. It found that she had not substantiated any additional employment factors and that the
medical evidence was not sufficient to establish that the accepted factor caused or contributed to
her diagnosed emotional condition.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of worker’s compensation. Where the disability results from an employee’s emotional
reaction to her regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an

1

5 U.S.C. §§ 8101-8193.

3

employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Generally, actions of the employing establishment in administrative or personnel matters
unrelated to the employee’s regular or specially assigned work duties, do not fall with the
coverage of the Act.3 While an administrative or personnel matter will be considered an
employment factor where the evidence discloses error abuse on the part of the employing
establishment, mere perceptions are insufficient. In determining whether the employing
establishment erred or acted abusively, the Board determines whether the employing
establishment acted reasonably.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6 Such opinion of the physician must be one of reasonable
medical certainty and must be supported by medical reasoning explaining the nature of the
relationship between the diagnosed condition and the employment.7
ANALYSIS
Appellant alleged that she developed an emotional condition as a result of her
employment duties, due to harassment and discrimination, overwork and excessive supervisor
pressure and observation. By decision dated July 1, 2008, the Office denied her emotional
condition claim finding that she had established an employment factor, the increased work duty
of making bank runs. However, the medical evidence did not establish that appellant’s
emotional condition was due to this factor. The Board must initially review whether the alleged
employment activities are covered factors under the Act.
Appellant attributed her emotional condition to work-related stress. Specifically, she
listed her employment duties and stated that the overwhelming pressure of those activities was
2

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
3

James E. Norris, 52 ECAB 93, 100 (2000).

4

Bonnie Goodman, 50 ECAB 139, 143-44 (1998).

5

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

6

Id.

7

Leslie C. Moore, 52 ECAB 132, 134 (2000).

4

stressful. Appellant further stated that doing her work and assigned duties caused her emotional
condition. She has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.8 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.9 Appellant did not offer
a detailed explanation of her listed employment duties she believed caused or contributed to her
emotional condition. She made only general references to becoming overwhelmed by her work.
Therefore, appellant has not substantiated that her employment duties singularly or in their
entirety caused or contributed to her emotional condition.
Appellant alleged that she was overworked as she and a coworker were performing duties
which formally required four employees. Her supervisor disagreed with this allegation and noted
that much of the work performed by the additional employees had been transferred from the
employing establishment to headquarters. Appellant has not submitted any witness statements or
other evidence to establish that she was in fact overworked and has not substantiated a
compensable factor of employment.
Appellant alleged that her supervisor improperly utilized the security camera to observe
employees at work. The Board has held that the manner in which a supervisor exercises his or
her discretion falls outside the coverage of the Act. This principal recognizes that a supervisor or
manager must be allowed to perform their duties and that employee’s will at times disagree with
actions taken. Mere disagreement with or dislike of actions taken by a supervisor or manager
will not be compensable absent evidence establishing error or abuse.10 Appellant’s disagreement
with the use of the security camera does not establish error or abuse on the part of her supervisor.
Appellant submitted a decision from the Merit System Protection Board finding that she
was not subjected to discrimination and retaliation at the employing establishment. For
discrimination to give rise to a compensable disability, there must be evidence which establishes
that the acts alleged or implicated by the employee did, in fact, occur. Mere perceptions of
discrimination are not compensable under the Act.11
Unsubstantiated allegations of
discrimination are not determinative of whether such discrimination occurred.12 A claimant must
establish a factual basis for his or her allegations of discrimination with probative and reliable
evidence.13 Appellant did not submit sufficient factual information in support of her allegations
of discrimination and retaliation. Therefore, she has not substantiated a compensable factor of
employment.
8

Pamela R. Rice, 38 ECAB 838, 841 (1947).

9

Effie O. Morris, 44 ECAB 470 473-74 (1993).

10

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

11

Reco Roncoglione, 52 ECAB 454, 456 (2001).

12

Penelope C. Owens, 54 ECAB 684, 686 (2003).

13

Beverly R. Jones, 55 ECAB 411, 417 (2004).

5

The Office accepted that appellant was assigned the work duty of making bank runs. As
appellant has substantiated a compensable work factor, the Board must review the medical
evidence to determine if this factor caused or contributed to her diagnosed emotional conditions.
Dr. Gold, an internist, attributed appellant’s depression to stress at work on
August 30, 2007. A November 30, 2007 report provided a brief summary of treatment and
attributed her emotional condition to her job requirements and supervisory pressure. Dr. Gold
did not mention the accepted employment factor of making trips to the bank. Appellant’s
attorney requested clarification from Dr. Gold on February 13, 2008 and mentioned the accepted
factor of making bank runs. In a March 6, 2008 note, Dr. Gold again failed to mention the
accepted factor and briefly stated that appellant had an escalation of her job duties prior to the on
set of her emotional condition. These reports are not sufficient to meet appellant’s burden of
proof as Dr. Gold provided a rationalized medical opinion addressing how the accepted
employment factor would cause or aggravate her diagnosed depression.
Dr. Guerra, a psychiatrist, attributed appellant’s major depression, panic disorder and
post-traumatic stress disorder to work activities with a checkmark “yes” on December 4, 2007.
She did not specifically mention the accepted employment factor as causing or contributing to
appellant’s condition. The Board has held that an opinion on causal relationship which consists
only of a physician checking “yes” to a medical form report question on whether a claimant’s
condition is related to employment activity is of diminished probative value. Without any
explanation or rationale for the conclusion reached, such a report is insufficient to establish
causal relationship.14 In a form report dated January 21, 2008, Dr. Guerra again diagnosed
depression and attributed the condition to appellant’s workload. She again failed to identify the
accepted employment factor and failed to provide any rationalized explanation of how this factor
caused or contributed to appellant’s diagnosed medical condition. Similarly, the reports of
Dr. Garcia-Jones addressed appellant’s treatment for depression and hospitalization in
October 2007. However, she did not provide an explanation of how appellant’s condition and
need for treatment was caused or contributed to by the accepted factor.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish that her diagnosed emotional condition was caused or contributed to by the accepted
employment factor of making bank runs.

14

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

6

ORDER
IT IS HEREBY ORDERED THAT the July 1, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 10, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY,
WATERVLIET ARSENAL, Watervliet, NY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1444
Issued: December 2, 2013

Case Submitted on the Record

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

On June 4, 2013 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated April 23, 2013 which denied his request for
reconsideration without conducting a merit review.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that,
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following a March 26, 2013
decision that denied appellant’s claim for a traumatic injury on the grounds that he failed to
submit medical evidence, appellant requested reconsideration on April 16, 2013 and submitted
additional medical evidence. This included a new April 11, 2013 report from Dr. Leonard E.
Goldstock, an orthopedist. This report was received by OWCP on April 23, 2013. In its
April 23, 2013 decision, OWCP denied appellant’s reconsideration request. It noted receipt of a
statement signed by two witnesses on April 2 and 4, 2013 and appellant’s undated statement
received on April 16, 2013 and noted that it had received no new medical evidence.

1

41 ECAB 548 (1990).

The Board finds that OWCP, in its April 23, 2013 decision, did not review the April 11,
2013 report from Dr. Goldstock that was received by OWCP on April 23, 2013.2 For this reason,
the case will be remanded to OWCP to enable it to properly consider all the evidence submitted
at the time of the April 23, 2013 decision. Following such further development as OWCP deems
necessary, it shall issue an appropriate merit decision on the claim.
IT IS HEREBY ORDERED THAT the April 23, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case recorded remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: December 2, 2013
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

2

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by OWCP prior to issuance of its final decision and noted that this
principal applies with equal force when evidence is received by OWCP the same day a final decision is issued).

2


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

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

Docket No. 13-447
Issued: August 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 18, 2012 appellant filed a timely appeal of a November 9, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee injury in the performance of duty.
FACTUAL HISTORY
On July 10, 2012 appellant, then a 55-year-old letter carrier, filed a traumatic injury claim
alleging that he sustained a swollen right knee that day when a box fell on it. The employing

1

5 U.S.C. § 8101 et seq.

establishment stated that on July 10, 2012 he was injured while delivering mail when a wall box
fell out of the wall striking him on his right knee.
Dr. Matthew Fields, an emergency room physician, diagnosed knee contusion on
July 12, 2012. Dr. Peter F. Sharkey, a Board-certified orthopedic surgeon, completed a report on
August 9, 2012 and listed a history that appellant underwent right knee total replacement in
March 2007. He noted that a box fell on appellant’s right knee on July 10, 2012 while at work.
Since then, appellant had significant pain and swelling in his knee. Dr. Sharkey stated that
appellant had a very large effusion of the right knee and recommended physical therapy for
“what appears to be post-traumatic synovitis of the right knee.” He indicated that appellant was
totally disabled. Dr. Sharkey completed an authorization for treatment on August 13, 2012. He
noted that appellant’s right knee developed a large effusion due to what “appears to be posttraumatic synovitis.” Dr. Sharkey stated that on July 10, 2012 a box fell on appellant’s right
knee at work resulting in pain and swelling. He diagnosed post-traumatic synovitis of the right
knee. Dr. Sharkey indicated with a checkmark “yes” that appellant’s condition was caused or
aggravated by the employment activity. On September 7, 2012 he stated that appellant could
return to work on October 1, 2012.
In a letter dated September 25, 2012, OWCP requested additional factual and medical
evidence in support of appellant’s claim.
By decision dated November 9, 2012, OWCP denied appellant’s claim finding that
Dr. Sharkey stated that appellant’s condition appeared to be post-traumatic synovitis of the right
knee. It found that Dr. Sharkey failed to provide an explanation as to how the claimed
employment incident of July 10, 2012 caused or aggravated a preexisting right knee medical
condition. OWCP found that the hospital records were not sufficient to establish a knee
contusion resulting from appellant’s accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 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.4
OWCP defines 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
2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

2

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.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.8 Medical rationale includes a physician’s opinion on the issue
of whether these is a causal relationship between the claimant’s diagnosed condition and the
implicated employment activity. The opinion of the physician must be based on a complete
factual and medical background of the claim, must be one of reasonable medical certainty, and
must be supported by medical reasoning explaining the nature of the relationship between the
diagnosed condition and specific employment activity or factors identified by the claimant.9
ANALYSIS
Appellant filed a traumatic injury claim after a box fell on his right knee in the
performance of duty on July 10, 2012. OWCP accepted that the traumatic incident occurred as
alleged. It found that appellant failed to submit the sufficient medical opinion evidence to
establish an injury as a result of this incident.
The Board finds that appellant has not submitted adequate medical evidence to establish a
right knee condition, including post-traumatic synovitis, as diagnosed by Dr. Sharkey who first
examined appellant on August 9, 2012 and noted appellant’s history of a prior right knee total
replacement in March 2007. Dr. Sharkey described the incident of July 10, 2012 and stated that
appellant experienced pain and swelling in his knee with a very large effusion. He diagnosed
“what appears to be post-traumatic synovitis of the right knee.” Without any explanation or
rationale for the conclusion reached, such report is insufficient to establish causal relationship.10
Although Dr. Sharkey diagnosed possible post-traumatic synovitis of the right knee, his
reports are speculative as to the nature of the diagnosis and are insufficient to establish a causal
relationship to the July 10, 2012 incident. He did not explain how the employment incident
would result in synovitis. Without a detailed medical report describing the July 10, 2011
5

20 C.F.R. § 10.5(ee).

6

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

7

J.Z., 58 ECAB 529 (2007).

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

10

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

3

employment injury and explaining how this incident resulted in a diagnosed condition, appellant
has not met his burden of proof.
On August 13, 2012 Dr. Sharkey completed a form report and stated that on July 10,
2012 a box fell on appellant’s right knee at work resulting in pain and swelling. He again stated
that appellant developed a large effusion on his right knee due what “appears to be posttraumatic synovitis.” Dr. Sharkey diagnosed post-traumatic synovitis of the right knee. He
indicated with a checkmark “yes” that this condition was caused or aggravated by the July 10,
2012 employment incident. The Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s condition was related to the history given is of little probative value.
CONCLUSION
The Board finds that appellant failed to submit sufficient medical evidence to establish a
right knee injury in the performance of duty on July 10, 2012, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the a November 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


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

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

Docket No. 07-60
Issued: May 10, 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 October 12, 2006 appellant filed a timely appeal from a September 27, 2006 Office of
Workers’ Compensation Programs’ merit decision, denying modification of its termination of
appellant’s compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits.

FACTUAL HISTORY
This is the fourth appeal to the Board. On October 29, 2004 and December 1, 2005 the
Board remanded the case for further development on the issue of whether the Office properly
followed its procedures in selecting the impartial medical specialist.1 The Board instructed the
Office to issue an appropriate merit decision in order to preserve appellant’s appeal rights. The
Board set aside Office decisions dated June 9, 2003 and June 3, 2005 that denied modification of
its termination of appellant’s compensation and medical benefits. On July 16, 2003 the Board
remanded the case for reconstruction of the case record.2 The October 29, 2004 and
December 1, 2005 orders of the Board are herein incorporated by reference.
By decision dated September 27, 2006, the Office denied modification of its termination
of appellant’s compensation and medical benefits. The Office found that it had acted in
accordance with the Physicians’ Directory System (PDS) procedures in selecting Dr. Dara
Jamieson to perform the impartial medical specialist examination in this case.3 The Office stated
that the record revealed that the Office medical scheduler had contacted eight physicians in
appellant’s zip code and indicated the reason that a particular physician was bypassed, i.e., the
reason that the Office was not able to schedule an examination with that physician. The Office
advised that it had checked appellant’s list of physicians located in his zip code or adjacent zip
codes with the PDS list.4 The physicians in appellant’s zip code of 19013 who were listed in the
2002 PDS, Drs. Green, Grogan, Leopold and Stafford, were not available to examine appellant.
Dr. Green had retired. Dr. Grogan’s office advised that he did not perform impartial medical
examinations. However, there was no documentation that Dr. Leopold or Dr. Stafford were
contacted. A review of the PDS indicated that neither physician had performed an examination
for the Office and, “[t]herefore, it can be assumed that they were not being used at the time of the
scheduling attempt.” The Office stated that the medical scheduler attempted to schedule
appellant’s examination in neighboring zip codes, working her way north to Philadelphia. The
examination was ultimately scheduled with Dr. Jamieson in zip code 19107, 16.30 miles from
appellant’s residence.5
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.6 The Office may not terminate compensation without
1

Docket No. 05-1403 (issued December 1, 2005); Docket No. 04-330 (issued October 29, 2004). By decision
dated June 24, 2002, the Office terminated appellant’s compensation and medical benefits effective July 14, 2002.
2

Docket No. 03-1353 (issued July 16, 2003).

3

Dr. Jamieson’s April 30, 2002 report is of record at R 44-50.

4

Appellant had asserted that the Office improperly bypassed numerous physicians whose offices were located in
his zip code or zip codes that were closer to his home than the zip code of Dr. Jamieson.
5

In its June 3, 2005 decision, the Office indicated that Dr. Jamieson’s office was 17.6 miles from appellant’s
residence.
6

Barry Neutuch, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

2

establishing that the disability ceased or that it is no longer related to the employment.7 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.8 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that require further medical treatment.9
A physician selected by the Office to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. To achieve this, the
Office has developed specific procedures for the selection of impartial medical specialists
designed to provide safeguards against any possible appearance that the selected physician’s
opinion is biased or prejudiced. The procedures contemplate that impartial medical specialists
will be selected from Board-certified specialists in the appropriate geographical area on a strict
rotating basis in order to negate any appearance that preferential treatment exists between a
particular physician and the Office.10 The Federal (FECA) Procedure Manual provides that the
selection of referee physicians (impartial medical specialists) is made through a strict rotational
system using appropriate medical directories. The procedure manual provides that the PDS
should be used for this purpose wherever possible.11 The PDS is a set of stand-alone software
programs designed to support the scheduling of second opinion and referee examinations.12 The
PDS database of physicians is obtained from the American Board of Medical Specialties
Directory of Board-certified Medical Specialists (ABMS) which contains the names of
physicians who are Board-certified in certain specialties.
ANALYSIS
The Board finds that the Office did not follow the Board’s previous instructions in its
October 29, 2004 and December 1, 2005 orders. The Board instructed the Office to review
appellant’s list of Board-certified physicians, located in his zip code or adjacent zip codes, and
provide an explanation as to why any Board-certified physicians appearing both on his list and
the PDS list, if any, were bypassed before Dr. Jamieson was selected. As noted in the Board’s
orders, the record on appeal did not permit an informed adjudication by the Board on the issue of
whether the Office properly followed its procedures in selecting the impartial medical specialist
in this case or whether it improperly bypassed qualified physicians whose offices were closer to
appellant than Dr. Jamieson’s office.
7

Id.

8

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

9

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).
See also Willie M. Miller, 53 ECAB 697 (2002).
11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.7 (September
1995, May 2003).

3

The Office stated that the record revealed that the medical scheduler had contacted eight
physicians and indicated the reason that a particular physician was bypassed. The Office advised
that it checked appellant’s list of physicians located in his zip code or adjacent zip codes with the
PDS list. The physicians in appellant’s zip code of 19013 who were listed in the 2002 PDS,
Drs. Green, Grogan, Leopold and Stafford, were not available. Dr. Green had retired.
Dr. Grogan’s office advised that he did not perform impartial medical examinations. However,
there is no documentation that the Office contacted Dr. Leopold or Dr. Stafford. The Office
stated that a review of the PDS indicated that neither physician had performed an examination
for the Office and “[t]herefore, it can be assumed that they were not being used at the time of the
scheduling attempt.” However, the medical scheduler did not contact these physicians, whose
offices were in appellant’s zip code, to determine whether they would examine him. The
medical scheduler moved on to other zip codes before contacting the qualified physicians who
were nearest to appellant’s residence.13 The Office indicated that, on remand, following the
Board’s December 1, 2005 order, it checked appellant’s list of physicians in zip codes adjacent
to him with the PDS list. There is no documentation of record that the Office did this. There is
also no indication that the Office obtained a current PDS list before selection was made of
Dr. Jamieson.
The Board finds that the Office has failed to establish that the selection of Dr. Jamieson
was based on correct application of Office procedures. As noted, the procedures provide that
impartial medical specialists will be selected from Board-certified specialists in the appropriate
geographical area on a strict rotating basis in order to negate any appearance that preferential
treatment exists between a particular physician and the Office. As the Office has not established
that Dr. Jamieson’s selection as an impartial medical specialist was in accordance with Office
procedures and Board precedent, her report is not entitled to the special weight of an impartial
medical specialist. Therefore, the Office did not meet its burden of proof in terminating
appellant’s compensation and medical benefits.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof in terminating
appellant’s wage-loss compensation and medical benefits effective July 14, 2002. On remand
the Office should reinstate appellant’s compensation and medical benefits retroactive to
July 14, 2002.

13

The Office stated that the scheduler attempted to schedule appellant’s examination in neighboring zip codes,
working her way north to Philadelphia. A review of the record shows that only seven physicians outside of
appellant’s zip code were contacted before the medical scheduler selected Dr. Jamieson. Reasons for bypassing the
physicians were provided in five cases. The notation regarding Dr. Thomas Graham indicates that he had been
bypassed on two previous occasions. There is no indication as to why he was also bypassed regarding appellant’s
examination. Dr. Lee Harris was bypassed because his office was 33 miles from appellant’s residence.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 27, 2006 is reversed.
Issued: May 10, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Seattle, WA, Employer
__________________________________________

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

Docket No. 08-594
Issued: June 6, 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 December 18, 2007 appellant filed a timely appeal from the merit decisions of the
Office of Workers’ Compensation Programs dated May 9 and November 2, 2007 denying his
claim for a traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
January 31, 2007, as alleged.
FACTUAL HISTORY
On February 1, 2007 appellant, then a 42-year-old health technician, filed a traumatic
injury claim alleging that on January 31, 2007 she slipped and fell on a wet rubber mat in the
washroom and sustained injuries to her back, neck, right arm and left hip and a slight concussion.
She submitted a medical record from an emergency room visit on January 31, 2007.
Dr. Christine C. Bittner, a Board-certified internist, indicated that appellant fell in a washroom at

the employing establishment. She also noted that appellant was in a motor vehicle accident
several weeks earlier for which she was seeing a chiropractor. Dr. Bittner diagnosed “soft tissue
injuries 2/2 to fall this am.” Appellant also submitted a physician’s initial report, dated
February 1, 2007, from Dr. Steven T. Ryan, a chiropractor, who diagnosed lumbosacral radicular
syndrome, lumbar sprain, sacral subluxation and pelvic subluxation. He checked a box
indicating that the injury was caused by appellant’s work incident.
By letter dated April 6, 2007, the Office advised appellant that her chiropractor was not
considered a physician under the Federal Employees’ Compensation Act because he had not
diagnosed a subluxation by use of an x-ray. It informed appellant of the additional medical
information that was necessary for her to establish her claim. In response, she submitted
chiropractic notes dated from January 22 to March 26, 2007. In the January 26, 2007 note,
written before the January 31, 2007 injury, Dr. Ryan noted that appellant had “improved cervical
complaint middorsal myalgia.” On April 20, 2007 he indicated that no x-rays were obtained.
By decision dated May 9, 2007, the Office denied appellant’s claim.
By letter dated May 13, 2007, appellant’s attorney requested an oral hearing. At the
September 19, 2007 hearing, appellant’s counsel asked that the record be kept open for an
additional 30 days for the submission of further medical evidence. No additional evidence was
received by the Office within the 30-day period.
By decision dated November 2, 2007, the hearing representative affirmed the May 9,
2007 denial of benefits.
LEGAL PRECEDENT
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of her claim. When the employee claims injury in the performance of duty, she must
submit sufficient evidence to establish that she sustained a specific incident at the time, place and
in the manner alleged and that such incident caused an injury.2 The mere fact that a condition
manifests itself or worsens during a period of employment does not raise an inference of causal
relationship.3
To establish a causal relationship between an employee’s condition and an alleged
employment injury, appellant must submit rationalized medical opinion from a physician based
on a complete and accurate medical and factual background.4 The physician’s opinion must be
expressed in terms of reasonable medical certainty and must be supported by medical rationale

1

5 U.S.C. §§ 8101-8193.

2

See John W. Montoya, 54 ECAB 308 (2003).

3

See Louis T. Blair, 54 ECAB 348 (2003).

4

See Kathryn E. Demarsh, 56 ECAB 677 (2005).

2

explaining the nature of the relationship between the diagnosed condition and the claimant’s
employment factors.5
ANALYSIS
Appellant alleged that she sustained injuries to her back, neck, right arm and left hip
when she slipped on a wet rubber mat in the washroom while working at the employing
establishment. The Office accepted that the employment incident occurred as alleged. The issue
on appeal, therefore, is whether appellant submitted sufficient medical evidence to establish that
she sustained an injury as a result of this accepted incident.
Appellant has failed to submit sufficient medical evidence that establishes that she
sustained an injury as a result of the accepted employment incident. She did seek medical
attention at the emergency room on January 31, 2007, the date of the alleged incident.
Dr. Bittner, the attending physician at the emergency room, assessed appellant with soft tissue
injuries due to the fall. The vague reference to “soft tissue injuries” without more by way of
medical rationale is insufficient to establish a compensable diagnosis.
Appellant also sought treatment from Dr. Ryan, a chiropractor. Section 8101(2) of the
Act provides that chiropractors are considered physicians only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation to correct a
subluxation as demonstrated by x-ray to exist.6 While Dr. Ryan diagnosed sacral subluxation
and pelvic subluxation, he specifically indicated that no x-rays were taken. In the absence of a
diagnosis of subluxation based on x-rays, he is not a “physician” under the Act.7 Since Dr. Ryan
is not a physician, his reports are of no probative medical value to the claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
her belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.8 As appellant failed to submit such evidence, the Office
properly denied her claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury on January 31, 2007, as alleged.

5

See Charles W. Downey, 54 ECAB 421 (2003).

6

5 U.S.C. § 8101(2).

7

See Michelle Salazar, 54 ECAB 523 (2003).

8

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

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 2 and May 9, 2007 are affirmed.
Issued: June 6, 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

4


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

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

Docket No. 10-1108
Issued: December 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 15, 2010 appellant filed a timely appeal from a January 26, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On March 5, 2009 appellant, then a 34-year-old mail handler, filed an occupational
disease claim alleging that she sustained an aggravation of her neuroma and plantar fasciitis of
the left foot due to standing on a concrete floor while using a sorting machine.

In a May 22, 2009 letter, the Office notified appellant that the evidence submitted was
insufficient to establish her claim and advised her as to the evidence needed to establish her
claim.
In a May 26, 2009 note, Dr. Jacob Salomon, a surgeon, diagnosed recurrent plantar
fasciitis of the left foot. Appellant also provided May and June 2009 disability certificates from
Dr. Salomon advising that she was unable to work intermittently due to plantar fasciitis and “left
foot/heel and calf tendinitis.”
By decision dated July 15, 2009, the Office denied appellant’s claim on the grounds that
the medical evidence did not demonstrate that her claimed condition was caused by work-related
activity.
On August 12, 2009 appellant requested a review of the written record.
In a July 13, 2009 treatment note, Dr. Malcolm Herzog, a podiatrist, commented that
appellant pushed and unloaded 70-pound mail containers and bags at work in 2005 and was
diagnosed with plantar fasciitis of the left foot. Appellant underwent left foot neuroma surgery
on January 12, 2008 and continued to feel pain in the same area. She asserted that the pain
forced her to shift her bodyweight, leading to aggravated muscles and cramps in the calf.
Appellant did not work in the past two weeks.
A July 20, 2009 magnetic resonance imaging (MRI) scan of appellant’s left ankle joint
performed by Dr. Amjad Safvi, a Board-certified diagnostic radiologist, revealed a
predominantly intermediate signal abnormality measuring along the plantar aspect of the plantar
fascia at its calcaneal attachment, suggestive of plantar fibromatosis. A July 20, 2009 MRI scan
of appellant’s left foot performed by Dr. Safvi revealed marginal osteophyte formation from the
articular sides of the head of the first metatarsal and the adjacent base of proximal phalanx of the
great toe, suggestive of degenerative osteoarthritis.
In a July 30, 2009 treatment note, Dr. Herzog advised that appellant’s symptoms
continued and that she attributed the pain to a “stumped neuroma,” with secondary pain in the
plantar fascial area of the left foot. He commented that her left heel pain forced her to shift her
weight to the forefoot, which aggravated her forefoot and produced the neuroma that was
unsuccessfully treated by surgery. Dr. Herzog opined that appellant sustained a “repetitive
motion injury that may have precipitated her plantar fasciitis and neuroma due to weight shift as
a result of compensatory gait” and recommended exploratory procedure to remove the stump
neuroma from patient’s left foot. A subsequent revised version of his note added that her
condition was the result of repetitive injury “based upon the description of her job.”
In an August 11, 2009 report, Dr. Salomon noted that appellant presented on May 5, 2009
complaining of left foot pain and has received treatment for left foot pain secondary to traumatic
injuries she sustained while working at the employing establishment. He advised that she had
foot surgeries on October 14, 2005 for her plantar fasciitis and on January 12, 2008 for a
postoperative neuroma. Dr. Salomon stated that appellant has had chronic foot pain since the
January 12, 2008 surgery. He observed surgical scars on the left heel and between the third and
fourth toes and diagnosed her as having plantar fasciitis and recurrent neuroma of the left foot,

2

which made it impossible for her to bear weight while walking on the left foot. Dr. Salomon
concurred with Dr. Herzog’s evaluation that appellant had a stump on the previously operated
neuroma causing left foot pain and recurrent plantar fasciitis due to “the repetitive type of injury
that occurs at work while she is performing her job” aggravating the nerve in her third
interspace. He opined that appellant’s plantar fasciitis and the stump neuroma were caused and
aggravated by her employment.
In a September 11, 2009 disability certificate, Dr. Salomon advised that appellant was
unable to return to work due to a flare-up of her plantar fasciitis. An August 3, 2009 evaluation
from Dr. Abbey Graves, a clinical psychologist, noted that appellant reported job stress and
diagnosed major depression.
By decision dated January 26, 2010, an Office hearing representative affirmed the
July 15, 2009 decision, finding that Drs. Herzog and Salomon provided insufficient rationale to
support their opinion on causal relationship.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of 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 disabilities and/or specific conditions for which
compensation is claimed are causally related to the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6

1

The hearing representative noted that appellant previously filed an October 10, 2007 claim. This claim is not
before the Board on the present appeal.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

See S.P., 59 ECAB 184, 188 (2007).

6

See R.R., 60 ECAB ___ n.12 (Docket No. 08-2010, issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238,
241 (2005).

3

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The evidence supports that appellant stood on concrete floors when using a sorting
machine at work. However, she has not submitted sufficient medical evidence to establish that
this employment factor caused or aggravated her left foot condition.
Dr. Herzog’s treatment notes stated that appellant previously sustained plantar fasciitis of
the left foot in 2005. Subsequently appellant’s left heel pain forced her to shift her weight to the
forefoot, aggravating her forefoot and producing a neuroma for which she underwent an
unsuccessful operation on January 12, 2008. “Based upon the description of her job,” namely
pushing and unloading 70-pound mail containers and bags, Dr. Herzog concluded that appellant
sustained a repetitive motion injury when she shifted her weight. This precipitated both her
plantar fasciitis and a stump neuroma of the left foot. Although Dr. Herzog provided general
support for causal relationship, his opinion is insufficient to establish causal relationship between
the diagnosed conditions and employment factors. He did not offer medical rationale or
adequate reasoning explaining how shifting weight from one foot to another at work would cause
or aggravate appellant’s diagnosed conditions. Moreover, Dr. Herzog did not address how
standing while using a sorting machine, the employment factor identified by appellant, caused or
aggravated her condition.8 He did not provide a full explanation of appellant’s preexisting
condition or why appellant’s condition was not the result from her neuroma operation on
January 12, 2008. Medical reports providing little rationale on causal relation are of diminished
probative value and are generally insufficient to meet an employee’s burden of proof.9 The need
for medical rationale is particularly important where the evidence shows that appellant had
preexisting problems to the same foot for which she is claiming an employment injury.
Consequently, Dr. Herzog’s opinion is insufficient to establish appellant’s claim.
In an August 11, 2009 report, Dr. Salomon stated that appellant received treatment for
her left foot pain that was secondary to “traumatic injuries” she sustained at work. He concurred
with Dr. Herzog that appellant had a stump on the previously operated neuroma causing left foot
pain and recurrent plantar fasciitis due to “the repetitive type of injury that occurs at work while
she is performing her job” aggravating the nerve in her third interspace. Based on appellant’s
7

I.J., 59 ECAB 408, 415 (2008); Woodhams, supra note 4 at 352.

8

See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment
incident described by the claimant caused or contributed to diagnosed appellant’s medical condition).
9

S.S., 59 ECAB 315, 322 (2008).

4

surgical history, Dr. Herzog’s evaluation, and the July 20, 2009 MRI scans, Dr. Salomon
concluded that appellant’s left foot condition was “caused and aggravated by her job at the post
office.” While Dr. Salomon generally supported appellant’s claim, he did not explain the
pathophysiological process by which standing at work while using the sorting machine, or any
other specific repetitive activity, would cause or aggravate the diagnosed left foot condition. He
did not provide further opinion on the issue of causal relation noting that he relied in part on the
evaluation by Dr. Herzog. Dr. Salomon did not adequately explain why any such condition
would not have been the result of appellant’s preexisting left foot problems. Without such
medical rationale explaining the basis for his opinion, his report is insufficient to establish her
claim.
Other medical evidence submitted, including reports of diagnostic testing, do not
establish appellant’s claim as they offer no opinion regarding the cause of appellant’s condition
and are of limited probative value.10 Therefore, appellant did not meet her burden of proof in
establish her claim.
Appellant argues on appeal that the decision is contrary to fact and law. As noted the
Board finds that the medical evidence did not sufficiently explain how standing on a concrete
floor at work caused or contributed to appellant’s condition.
CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
in the performance of duty.

10

E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF THE NAVY,
Colts Neck, NJ, Employer
__________________________________________

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

Docket No. 09-1561
Issued: March 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 4, 2009 appellant filed a timely appeal from July 10, 2008 and February 24,
2009 decisions of the Office of Workers’ Compensation Programs adjudicating his claim for a
schedule award. 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 more than eight percent impairment to his right lower
extremity for which he received a schedule award.
FACTUAL HISTORY
On October 22, 1999 appellant, then a 46-year-old motor vehicle operator, filed a claim
for a traumatic injury on October 21, 1999 when he experienced sharp pain in his lower back
radiating to both legs when his tractor-trailer seat bounced up and down while he was driving.
The Office accepted his claim for aggravation of preexisting spondylolisthesis and preexisting

spondylosis. Appellant underwent lumbar spine surgery in April 2000. On September 15, 2004
he filed a claim for a schedule award.1
In a May 24, 2004 report, Dr. David Weiss, an osteopathic physician specializing in
orthopedic medicine, reviewed appellant’s medical history and provided findings on physical
examination. Appellant described low back pain and stiffness on a daily basis with radicular
pain in his right lower extremity. He had numbness and pins and needles sensations in his right
lower extremity. Appellant had difficulty with prolonged sitting, repetitive bending or lifting
weights greater than 35. He described his pain as ranging from 5 to 8 on a scale of 0 to 10.
Findings on physical examination included lumbar spine range of motion of 35 degrees forward
flexion, 15 degrees extension, left lateral flexion of 15 degrees and right lateral flexion of 15
degrees. All ranges of motion were carried through with pain at the extremes. The sitting root
sign was positive on the right at 35 degrees, producing radicular pain down the right lower
extremity. Straight leg raising was positive at 75 degrees above the horizontal and produced
midline low back pain on the right. The extensor hallucis longus muscle was graded at 5/5
bilaterally. Manual muscle strength testing of the lower extremities revealed the gastrocnemius
musculature at 4/5 on the right and hip flexor muscles at 3+/5. Sensory examination revealed a
perceived sensory deficit over the L4, L5 and S1 dermatomes involving the right lower
extremity. Deep tendon reflexes were +2 and symmetrical. The gastrocnemius circumferential
measurements were 37.5 centimeters (cm) on the right and left. Dr. Weiss found that appellant
had 37 percent impairment of the right lower extremity for pain, including 4 percent each, or 12
percent total, for sensory deficit of the L4, L5 and S1 nerve roots, based on Table 15-15 and 1518 at page 424 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides); 17 percent for Grade 4 motor strength
deficit of the gastrocnemius muscle (ankle plantar flexion) and 10 percent for Grade 3 motor
strength deficit of the hip flexors, based on Table 17-8 at page 532, and 3 percent for pain-related
impairment based on Figure 18-1 at page 574. Dr. Weiss noted that appellant reported that he
could not perform his previous employment as a truck driver and could not perform repetitive
bending or lift more than 35 pounds.
On June 1, 2005 Dr. Henry J. Magliato, a Board-certified orthopedic surgeon and an
Office medical adviser, reviewed Dr. Weiss’ report and found that the findings on physical
examination reflected 32 percent right lower extremity impairment. He found 3 percent
impairment for sensory deficit each of the L4, L5 and S1 nerve roots based on a Grade 3 deficit
from Table 15-15 (60 percent for Grade 3 multiplied by 5 percent maximum for each nerve root
from Table 15-18) equals 3 percent, or a total of 9 percent for sensory deficit. Dr. Magliato
noted that Dr. Weiss had not indicated a grade for sensory deficit from Table 15-15. He agreed
with the 17 percent and 10 percent impairment Dr. Weiss found for muscle weakness of the
gastrocnemius and hip flexor muscles, respectively. Dr. Magliato did not include three percent
for pain as Dr. Weiss did. He combined the impairment percentages according to the Combined
Values Chart at page 604 of the A.M.A., Guides in finding 32 percent total impairment (17

1

The earlier portion of the case record, in paper form, was lost en route to the Board and has not yet been
reconstructed by the Office. However, the imaged portion of the record contains all evidence relevant to
adjudication of appellant’s schedule award claim.

2

percent combined with 10 percent constitutes a 25 percent impairment based on the chart, 25
percent combined with 9 percent constitutes a 32 percent impairment).
The Office found a conflict in the medical opinion evidence between Dr. Weiss and
Dr. Magliato. On June 6, 2007 it referred appellant, together with a statement of accepted facts,
a list of questions and the medical record, to Dr. Ian Fries, a Board-certified orthopedic surgeon,
for an examination and an independent evaluation of his left upper extremity impairment.
In an August 6, 2007 report, Dr. Fries reviewed appellant’s medical history and provided
findings on physical examination. He found 11 percent impairment to appellant’s right lower
extremity, including 5 percent for Grade 4 right hip flexor weakness, based on Table 17-18 at
page 532 of the A.M.A., Guides and 3 percent for pain. Dr. Fries opined that appellant did not
have gastrocnemius muscle weakness as found by Dr. Weiss because Dr. Weiss noted a normal
gait, normal tip-toe walking and no decreased gastrocnemius on the right.2 On April 17, 2008
Dr. Andrew A. Merola, an Office medical consultant, agreed with the impairment rating of
Dr. Fries but noted a mathematical error in Dr. Fries’ report. He stated that 5 percent combined
with 3 percent constitutes 8 percent impairment, not 11 percent.
By decision dated July 10, 2008, the Office granted appellant a schedule award based on
eight percent impairment of the right lower extremity for 23.04 weeks, from April 12 to
September 19, 2001.3 Appellant requested a hearing before an Office hearing representative that
was held, via video conference, on December 17, 2008. Following the hearing, appellant,
through his attorney, submitted a written statement arguing that the Office should not have found
a conflict between Dr. Weiss and Dr. Magliato because the difference between their impairment
ratings was insignificant.
By decision dated February 24, 2009, an Office hearing representative affirmed the
July 10, 2008 decision on the grounds that the evidence established that appellant had no more
than eight percent impairment to his right lower extremity.
LEGAL PRECEDENT
Section 8107 of the Act4 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. The Office evaluates the degree of permanent impairment according to

2

In his report, Dr. Weiss did not state that appellant’s gait was normal. He stated that appellant ambulated with a
right lower extremity list. It was only calcaneal (heel walking) and equinus (toe walking) that Dr. Weiss reported as
normal.
3

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of the lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by eight percent for the right lower
extremity equals 23.04 weeks of compensation.
4

5 U.S.C. § 8107.

3

the standards set forth in the specified edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (the A.M.A., Guides).5
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.6
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.7 The diagnosis-based method may
be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.8 The functional method is used for conditions when anatomic changes are
difficult to categorize, or when functional implications have been documented, and includes
range of motion, gait derangement and muscle strength.9 The evaluating physician must
determine which method best describes the impairment of a specific individual based on patient
history and physical examination.10 When uncertain about which method to use, the evaluator
should calculate the impairment using different alternatives and choose the method or
combination of methods that gives the most clinically accurate impairment rating.11 If more than
one method can be used, the method that provides the higher impairment rating should be
adopted.12
ANALYSIS
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is necessary. The Board finds that the Office erred in finding that a conflict
existed between Dr. Weiss and Dr. Magliato as to appellant’s right lower extremity impairment.
Dr. Weiss found that appellant had 37 percent impairment of the right lower extremity,
including 4 percent each, or 12 percent total, for sensory deficit of the L4, L5 and S1 nerve roots,
based on Table 15-15 and 15-18 at page 424 of the fifth edition of the A.M.A., Guides.
However, he did not specify the grade he used in applying these tables. Based upon the history
of complaints in his report, Dr. Weiss may have been applying Grade 2. He then found 17
percent for Grade 4 motor strength deficit of the gastrocnemius muscle and 10 percent for Grade
3 motor strength deficit of the hip flexors, based on Table 17-8 at page 532, and 3 percent for
pain-related impairment based on Figure 18-1 at page 574.
5

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001).
6

A.M.A., Guides 525.

7

Id.

8

Id.

9

Id. at 525, Table 17-1.

10

Id. at 548, 555.

11

Id. at 526.

12

Id. at 527, 555.

4

Dr. Magliato found that the findings on physical examination reported by Dr. Weiss
reflected 32 percent right lower extremity impairment. He found three percent impairment for
sensory deficit each of the L4, L5 and S1 nerve roots based on a Grade 3 deficit from Table
15-15. Dr. Magliato noted that Dr. Weiss had not indicated a grade for sensory deficit from
Table 15-15 but would have used a Grade 2, or 80 percent sensory loss, to find 4 percent
impairment. He agreed with the 17 percent and 10 percent impairment Dr. Weiss found for
muscle weakness of the gastrocnemius and hip flexor muscles, respectively. Dr. Magliato did
not include three percent for pain as Dr. Weiss did. He combined the impairment percentages
according to the Combined Values Chart at page 604 of the A.M.A., Guides in finding 32
percent total impairment (17 percent combined with 10 percent constitutes a 25 percent
impairment based on the chart, 25 percent combined with 9 percent constitutes a 32 percent
impairment).
Dr. Weiss and Dr. Magliato agreed that appellant had 17 percent impairment for muscle
weakness of the gastrocnemius and hip flexor muscles, respectively. Dr. Magliato properly
discounted three percent for pain from Dr. Weiss’ impairment rating. The A.M.A., Guides warns
that examiners should not use Chapter 18 to rate pain-related impairment for any condition that
can be adequately rated on the basis of the body and organ impairment rating systems given in
other chapters.13 Moreover, as the A.M.A., Guides explains: “The impairment ratings in the
body organ system chapters make allowance for expected accompanying pain.”14 Dr. Weiss did
not adequately explain why appellant’s condition could not be rated in other chapters of the
A.M.A., Guides or how his condition falls within one of the several situations identified under
section 18.3a (When This Chapter Should Be Used to Evaluate Pain-Related Impairment).15 He
did not explain why appellant’s right lower extremity pain could not be evaluated using the
chapter on lower extremity impairment, Chapter 17. Therefore, Dr. Magliato properly
discounted three percent for pain. The only remaining difference between the impairment ratings
of Dr. Weiss and Dr. Magliato was in the choice of a grade for sensory deficit of the L4, L5 and
S1 nerve roots. Dr. Weiss did not assign a grade but must have used Grade 2 in order to find 4
percent impairment for each nerve root, or a total of 12 percent. Dr. Magliato assigned Grade 3
based on the reported physician findings, for a total of nine percent for sensory deficit of the
nerve roots. Applying the impairment percentages of Dr. Magliato to the Combined Values
Chart at page 604 of the A.M.A., Guides, constitutes 32 percent right lower extremity
impairment (17 percent for gastrocnemius muscle weakness combined with 10 percent for hip
flexor weakness constitutes 25 percent; 25 percent combined with 9 percent for sensory deficit
constitutes 32 percent). The impairment percentages found by Dr. Weiss constitute a 34 percent
right lower extremity impairment based on the Combined Values Chart (17 percent for
gastrocnemius muscle weakness combined with 12 percent for sensory deficit constitutes 27
percent; 27 percent combined with 10 percent for hip flexor weakness constitutes 34 percent
right lower extremity impairment). As Dr. Weiss did not specify the grade he used in applying
the tables and Dr. Magliato did not explain why he applied Grade 3 or whey there was a resulting
difference, the Office should have further developed the medical evidence and asked Dr. Weiss
13

Id. at 571.

14

Id. at 20.

15

Id. at 570-71.

5

and Dr. Magliato to provide an explanation for the sensory deficit grade each used, and then
determine the appropriate schedule award.16 This is especially important since Dr. Magliato
relied on the findings from Dr. Weiss’ physical examination and report without any explanation
why Dr. Weiss’ calculations were in error as directed by the Office in its June 1, 2005 referral to
Dr. Magliato. Accordingly, it was premature for the Office to find a conflict in the medical
evidence, and the report of Dr. Fries is not entitled to special weight.
CONCLUSION
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is necessary. On remand the Office should obtain additional information from
Dr. Weiss and Dr. Magliato regarding their choice of sensory deficit grade. After such further
development as the Office deems necessary, it should issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 24, 2009 and July 10, 2008 are set aside and the case is
remanded for further action consistent with this decision.
Issued: March 16, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

The Board notes that neither physician explained his choice of grade for sensory deficit.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1534
Issued: September 23, 2015

Case Submitted on the Record

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

JURISDICTION
On June 26, 2014 appellant, through his representative, filed a timely appeal from a
March 21, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his April 28, 2009 employment
injuries caused total disability from January 29, 2010 through July 16, 2011.
FACTUAL HISTORY
On May 6, 2009 appellant, then a 55-year-old temporary heavy mobile equipment metal
mechanic, filed a traumatic injury claim alleging that on April 28, 2009, while pulling up on pry
bar, he injured his lower back. The employing establishment controverted the claim on May 20,
1

5 U.S.C. § 8101 et seq.

2009, questioning the fact of injury. It contended that medical evidence reflected a preexisting
prolonged disease of the spine, i.e., osteoarthritis, and that his employment did not cause or
aggravate his condition.
In a May 18, 2009 progress note, Dr. Norris C. Knight, appellant’s Board-certified
orthopedic surgeon, reported that appellant has intermittent back pain that was not severe or
significant. He noted that appellant has been on light duty since an April 28, 2009 incident when
he was felt back pain while pulling a lever at work. Dr. Knight noted that x-rays showed 4+
osteoarthritis in appellant’s lumbar spine that was etiologic. He recommended that activity
commensurate with symptoms level, Tylenol, moist heat and gentle principles of back care.
Dr. Knight also recommended that appellant talk to Human Resources about his job. He noted in
a June 8, 2009 progress note that appellant has not undergone a functional capacity evaluation
(FCE) and that appellant continued to have significant low back pain with no leg radiation.
Dr. Knight noted that appellant was in need of a magnetic resonance imaging (MRI) scan and an
FCE, after which his occupational status would be clear.
An FCE was conducted on June 29, 2009 which reflected that appellant could perform
heavy work with restrictions of lifting and carrying up to 70 pounds and restrictions on fingering
with the right hand. The right hand limitation was due to a nonemployment-related accident.
On July 23, 2009 OWCP accepted appellant’s claim for osteoarthrosis, unspecified
whether generalized or localized, other specific sites.
In a September 8, 2009 progress note, Dr. Knight found that after reviewing the FCE,
appellant could perform heavy work. Appellant was provided a permanent light-duty slip with
restrictions prohibiting lifting over 20 pounds, no frequent bending, stooping, or twisting and
was discharged. These limitations were more restrictive than the restrictions for heavy work due
to the extent of appellant’s osteoarthritis.
On November 10, 2009 OWCP amended its July 23, 2009 decision reflecting that
appellant’s claim had been accepted for sprain of the lumbar region of the back, not
osteoarthritis.
In a September 28, 2009 progress note, received by OWCP on January 11, 2010,
Dr. Knight diagnosed severe osteoarthritis in the lumbar spine, diffuse, and found appellant
unable to do heavy duty manual labor. In a December 29, 2009 progress note, he found that
appellant continued to have pain in the back and right lower extremity and some vague urinary
symptoms. Dr. Knight believed the worsening and significance of the pathology suggested an
evaluation by a spine surgeon.
In a December 20, 2010 progress note, Dr. Knight noted that appellant continued to have
intractable low back pain, pain paresthesias in both lower extremities with some numbness in his
feet. He opined that appellant had no orthopedic problem and needed to be treated by a spine
surgeon.
On April 29, 2011 appellant retained counsel to represent him in his compensation claim.
By letter dated May 11, 2011, the employing establishment asked OWCP to review appellant’s
case to see if it could be closed.
2

On June 6, 2011 appellant filed a claim for recurrence of disability causally related to the
April 28, 2009 employment injury, effective January 29, 2010.2 He noted that, after returning to
work, he had permanent restrictions of no lifting, bending, or picking up more than 10 pounds.
In support of his claim, appellant submitted a Notification of Personnel Action, Form SF-50,
reflecting that his appointment as a heavy mobile equipment metal mechanic on January 28,
2010 had expired.
In a June 16, 2011 report, Dr. Theodore A. Belanger, a Board-certified orthopedic
surgeon, assessed appellant with multilevel lumbar stenosis with right lumbar radiculopathy. He
noted that this was largely on the basis of degenerative arthritis and stenosis in the lower lumbar
spine, which appears to be diffuse essentially spanning from L3 to the sacrum. Dr. Belanger
noted that this represented a preexisting degenerative condition which was aggravated by the
employment injury leading to the onset of symptoms and the need for medical treatment. He
noted that, at this point, appellant has really not had any treatment other than medication and
activity modification. Dr. Belanger noted that appellant was not working, so his work status was
not relevant. In a September 1, 2011 attending physician’s report, appellant was found to be
totally disabled from June 16, 2011 (his first appointment with Dr. Belanger) through present.
On June 23, 2011 OWCP accepted appellant’s claim for degeneration of lumbar or
lumbosacral intervertebral disc. It noted that the full list of accepted conditions now included
sprain of the lumbar region of the back and degeneration of lumbar or lumbosacral intervertebral
disc.
In a decision dated June 27, 2011, OWCP accepted appellant’s claim for a recurrence of
sprain of the back, lumbar region and aggravation of degeneration of lumbar or lumbosacral
intervertebral disc.
On July 28, 2011 appellant filed a claim for wage-loss compensation for the period
January 29, 2010 through July 15, 2011. By letter dated August 22, 2011, OWCP informed him
that it was unable to process his claim as it needed current medical evidence from his treating
physician supporting his inability to work for that period.
In a September 1, 2011 report, Dr. Belanger assessed appellant with multilevel lumbar
stenosis with right lumbar radiculopathy. He noted that appellant remained restricted from work
at this point and the prediction remains indefinite as there is very slow progress in getting the
treatment that is recommended.
By decision dated September 20, 2011, OWCP denied appellant’s claim for
compensation for the period January 29, 2010 through July 16, 2011 as the medical evidence did
not support employment-related disability.

2

Appellant’s claim for recurrence of disability states that his recurrence commenced on January 29, 2011;
however, the Board believes that the listed date was a typographical error. The Board notes that the notification of
personnel action indicated that appellant was terminated from his position on January 28, 2010. Subsequent
documentation, discussed infra, also indicates that appellant was alleging a recurrence as of January 29, 2010.

3

On October 7, 2011 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative.
Appellant continued to submit reports by Dr. Belanger. In a November 16, 2011 report,
Dr. Belanger noted that appellant had not progressed. His recommendation remained that before
surgery is considered, they consider all conservative measures. Dr. Belanger noted that appellant
remained out of work and he planned to see him after he gets injections. He noted that he would
certainly be willing to certify that appellant was unable to work due to the same medical
condition for which he had been treating him.
In a December 23, 2011 report, Dr. Belanger opined that appellant may require surgery.
In a February 2, 2012 report, he diagnosed lumbar stenosis and right leg radiculopathy and found
this related to his employment injury of April 28, 2009 as appellant did not have symptoms until
the injury occurred. Dr. Belanger indicated that appellant was totally disabled from June 16,
2011 until present.
At the hearing held on March 14, 2012 appellant claimed he was laid off on
January 28, 2010 because he could not do his job anymore because of his back. He claimed they
terminated his contract. Appellant noted that, prior to the layoff, he was working in a limitedduty position but there was nothing in writing to verify that. He claimed that all he did was put
mirror brackets together. Appellant testified that since January 28, 2010 he has not worked in
any capacity and was receiving disability retirement.3
In a statement dated April 12, 2012, the employing establishment verified that on
January 28, 2008 appellant had been hired as a temporary employee as a heavy mobile
equipment metal mechanic and that his appointment expired on January 28, 2010 and was not
extended. Ann Harmon, an injury compensation program administrator, argued that appellant
had not provided medical evidence of total disability as appellant was working when his
appointment expired. She submitted appellant’s Notification of Personnel Action noting that he
was hired effective January 28, 2008 and that he was hired for a temporary appointment in
support of Operation Iraqi Freedom as a heavy mobile equipment mechanic.
By decision dated June 28, 2012, the hearing representative affirmed the September 20,
2011 OWCP decision. He found that the evidence failed to support that the employing
establishment withdrew a light-duty assignment made to accommodate appellant’s employmentrelated condition. Further, the evidence also failed to support that appellant was on light duty
prior to the expiration of his temporary appointment on January 28, 2010. However, as a copy of
this decision was not sent to appellant’s representative, the decision was reissued on
March 21, 2014.

3

At the hearing, the hearing representative noted that the period of disability appellant claimed, commencing
April 28, 2009, was an error as the period of alleged disability actually began January 29, 2010.

4

LEGAL PRECEDENT
FECA provides compensation for disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.4 Disability means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.5
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,6 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.7
When a claimant stops working at his or her employing establishment for reasons
unrelated to his or her accepted injury, he or she has no disability under the meaning of FECA.8
ANALYSIS
Appellant sustained a traumatic injury in the performance of duty on April 28, 2009. He
returned to work at the employing establishment as a heavy mobile equipment mechanic. On
January 28, 2010 appellant’s appointment expired and was not renewed.
The Board notes that appellant was hired for a temporary appointment in support of
Operation Iraqi Freedom as a heavy mobile equipment mechanic. Appellant’s testimony that he
was laid off because he could no longer perform the duties of his contract is not supported by the
evidence of record. In addition to the personnel action notices, the employing establishment
confirmed that his position was terminated at the expiration of his term.
If a claimant was a temporary employee at the time of injury, the termination of a
temporary appointment does not raise an issue of disability because it does not satisfy the
definition of incapacity due to an employment injury. Appellant’s unemployment after
January 28, 2010 arose from an independent cause, namely the termination of his temporary
appointment.9 The Board has held that when a claimant stops work for reasons other than the
accepted employment injury there is no disability within the meaning of FECA.10
4

See supra note 1.

5

20 C.F.R. § 10.5(f).

6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph W. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

8

S.M., Docket No. 14-640 (issued June 23, 2014) (where the Board held that the expiration of a temporary
appointment does not establish compensable disability or an injury-related loss of wage-earning capacity).
9

Id.

10

Id.; see also M.S., Docket No. 11-1184 (issued December 12, 2011) (appellant was not off work due to a
medical disability. He stopped due to the termination of his temporary appointment. The Board held that a
recurrence of disability does not include work stoppage caused by the termination of a temporary appointment).

5

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 did not establish that his April 28, 2009 employment
injuries caused total disability from January 29, 2010 through July 16, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2014 is affirmed.
Issued: September 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6