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

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

Docket No. 12-1895
Issued: April 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 13, 2012 appellant filed a timely appeal of an August 20, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she was entitled
to disability compensation for the period February 1 to March 7, 2012.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence after OWCP issued its August 20, 2012 decision. The
Board lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On July 26, 2004 appellant, then a 38-year-old mail carrier, filed a Form CA-2 alleging
that she sustained lower extremity injuries due to routine dismounted deliveries. OWCP
accepted her occupational disease claim, assigned File No. xxxxxx821, for left plantar fasciitis
and heel spur and later expanded it to include right plantar fasciitis and heel spur.
On February 16, 2010 appellant filed a Form CA-2a alleging that she experienced foot
pain while in the performance of duty. Her claim for recurrence of medical condition was
administratively converted to a new claim for occupational disease. OWCP accepted the new
claim, assigned File No. xxxxxx710, for bilateral foot strain.
On August 23, 2010 appellant fell out of her mail truck and landed on her right hand.
OWCP accepted her traumatic injury claim, assigned File No. xxxxxx865, for closed right distal
radius fracture.
On December 5, 2011 appellant filed a Form CA-2 alleging that she sustained bilateral
carpal tunnel syndrome due to repetitive casing, gripping, handling, lifting and writing on the
job. OWCP accepted her occupational disease, assigned File No. xxxxxx378, for bilateral carpal
tunnel syndrome and trigger finger.3
In a December 30, 2011 work ability evaluation form, Dr. Gregory J. Hanker, a Boardcertified orthopedic surgeon, advised appellant to avoid lifting and carrying items weighing over
five pounds. He also limited repetitive hand-oriented activities to 30 minutes per hour.
Dr. Hanker anticipated a January 9, 2012 return to work.
Dr. Hanker related in a January 13, 2012 report that appellant resumed normal job
activities, but remained symptomatic. On examination of the right arm, he observed localized
annular pulley pain and tendon triggering in the thumb and middle finger. Dr. Hanker also
elicited right wrist dysesthesia radiating to the first through fourth digits during provocative
testing for median nerve entrapment. On examination of the left arm, he commented that the
findings were “virtually identical.” Dr. Hanker diagnosed bilateral carpal tunnel syndrome due
to repetitive tasks at work and recommended staged hand surgeries.4 A January 31, 2012 work
status note indicated that appellant did not return to work and was placed on temporary total
disability for four months.
Appellant filed multiple claims for compensation for the combined period January 14 to
March 7, 2012. OWCP informed her in February 6 and March 5, 2012 letters that a medical
report from a physician explaining how her accepted condition rendered her unable to perform
her federal employment for the alleged period was needed.

3

OWCP combined appellant’s claims into File No. xxxxxx378, which has been designated as the master file.

4

Dr. Hanker reiterated these findings in a March 6, 2012 report, adding that appellant likely sustained three
percent permanent impairment of the right hand and three percent permanent impairment of the left hand.

2

Dr. Hanker remarked in a February 17, 2012 report that he permitted appellant to return
to work, but “this recommendation did not work out.” Following an examination that revealed
“intolerable hand symptoms,” he determined that she was incapable of carrying out her normal
job duties and placed her on temporary total disability retroactive to January 14, 2012. In two
February 24, 2012 reports, Dr. Hanker concluded that appellant’s worsening condition
necessitated surgery.
A March 1, 2012 report from Dr. Dennis P. Lewis, a Board-certified family practitioner,
diagnosed carpal tunnel syndrome.5
In a March 2, 2012 attending physician’s report, Dr. Hanker detailed that appellant was
totally disabled since January 14, 2012, scheduled for left hand surgery on March 8, 2012 and
expected to return to full-time duty on April 19, 2012.6 He diagnosed left carpal tunnel
syndrome as well as trigger thumb and middle finger.7
By decision dated March 8, 2012, OWCP denied appellant’s compensation claim, finding
that the medical evidence did not sufficiently establish total disability for the period January 14
to March 7, 2012.
Dr. Jonathan S. Jaivin, a Board-certified orthopedic surgeon, noted in a March 21, 2012
report that appellant “has been off work for three months due to carpal tunnel syndrome.” He
agreed with Dr. Hanker’s assessment that she remain on temporary total disability status.
Appellant requested reconsideration on May 22, 2012. She clarified that she sought
disability compensation for the period February 1 to March 7, 2012.8
On August 20, 2012 OWCP denied modification of the March 8, 2012 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
5

Dr. Lewis restated his diagnosis in an April 25, 2012 report.

6

The case record contains a March 8, 2012 operative report specifying left open carpal tunnel release and left
thumb and middle finger proximal flexor tendon sheath incisions. The case record also contains an April 5, 2012
operative report specifying right open carpal tunnel release and right thumb and middle finger proximal flexor
tendon sheath incisions.
7

Appellant provided various medical records for the period March 14 to July 11, 2012. None of these addressed
disability for the relevant period.
8

Appellant detailed that the employing establishment agreed to pay her regular wages for the period January 13
to 31, 2012, because it failed to find a position that accommodated her physical restrictions and advised her not to
return to work.

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preponderance of reliable, probative and substantial medical opinion evidence.9 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.10
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.11 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.12
ANALYSIS
OWCP accepted, inter alia, that appellant sustained bilateral carpal tunnel syndrome and
trigger finger while in the performance of duty. Appellant thereafter filed multiple claims for
disability compensation and submitted medical evidence.
The Board finds that appellant did not establish her entitlement to disability
compensation because the medical evidence did not sufficiently demonstrate that she was
disabled for the period February 1 to March 7, 2012 due to her accepted injuries. In a
December 30, 2011 work ability evaluation form, Dr. Hanker anticipated that she would be
released to work on or around January 9, 2012. He confirmed in a January 13, 2012 report that
appellant returned to her job. Subsequent records from Dr. Hanker for the period January 31 to
March 2, 2012 indicated that she did not resume work and was placed on temporary total
disability status for four months retroactive to January 14, 2012. Dr. Jaivin also mentioned in a
March 21, 2012 report that appellant “has been off work for three months due to carpal tunnel
syndrome.” Although Dr. Hanker and Dr. Jaivin both concluded that she was totally disabled,
neither offered adequate medical rationale setting forth the pathophysiological mechanism by
which bilateral carpal tunnel syndrome rendered her unable to perform her regular duties as a
mail carrier.13 Medical reports consisting solely of conclusory statements without supporting
rationale are of diminished probative value.14 Furthermore, while appellant claimed that she was
entitled to disability compensation for the period February 1 to March 7, 2012, neither
Dr. Hanker nor Dr. Jaivin directly addressed these specific dates.15
9

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

10

Dean E. Pierce, 40 ECAB 1249 (1989).

11

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

12

Jefferson, supra note 9.

13

Emma R. Bowman, Docket No. 94-2431 (issued September 13, 1996); Arita M. Cruz, Docket No. 94-1694
(issued June 11, 1996). The Board notes that Dr. Jaivin merely deferred to Dr. Hanker’s opinion on the matter.
14

See William C. Thomas, 45 ECAB 591 (1994).

15

M.F., Docket No. 08-1927 (issued April 16, 2009).

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The remaining evidence of record did not address whether appellant’s bilateral carpal
tunnel syndrome led to her disability for the claimed period and was therefore of limited
probative value.16 In view of the totality of the evidence, the Board finds that appellant did not
discharge her burden of proof.
Appellant may submit new evidence or argument as part of a formal 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 she was entitled to disability
compensation for the period February 1 to March 7, 2012.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

16

Tracy A. Thorsen, Docket No. 93-1232 (issued July 21, 1994).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
U.S. POSTAL SERVICE, TIMES SQUARE
STATION, New York, NY, Employer
__________________________________________

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

Docket No. 08-1268
Issued: December 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On April 1, 2008 appellant filed a timely appeal from a February 26, 2008 decision of the
Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of $3,265.58 in compensation for the period April 4 to May 14, 2005; and
(2) whether the Office properly determined that appellant was at fault in creating the
overpayment and therefore it was not subject to waiver.

FACTUAL HISTORY
The Office accepted that on April 8, 2004 appellant, then a 41-year-old letter carrier,
sustained a lumbar strain while loading a delivery vehicle. Appellant stopped work on
April 9, 2004. Following a period of continuation of pay, she received wage-loss compensation.
In an August 6, 2004 letter, the Office notified appellant that she would receive wage-loss
compensation payments every 28 days beginning July 10, 2004. Each payment would include
the period for which payment was made. It advised appellant to submit immediate notice if she
returned to work. If appellant worked for any period for which payment was made, she was to
return the compensation check to the Office to avoid an overpayment.1
Appellant returned to full-time work with no loss of wages on April 4, 2005.2 She
received compensation checks for the periods March 20 to April 16, 2005 and April 17 to
May 14, 2005.
By notice dated January 22, 2008, the Office advised appellant of its preliminary
determination that an overpayment of $3,265.58 was created as she accepted compensation
payments from April 4 to May 14, 2005, after appellant returned to work with no loss of wages
on April 4, 2005.3 It made the preliminary determination that appellant was at fault in the
creation of the overpayment as she knew or reasonably should have known that she was not
entitled to payments after she returned to work with no wage loss. Appellant was afforded 30
days to submit financial information or request a hearing. She did not respond to the notice or
provide financial information within 30 days.
By decision dated February 26, 2008, the Office finalized its preliminary determination
of a $3,265.58 overpayment of compensation. It found that appellant was at fault in the creation
of the overpayment as she accepted payments made after she returned to work with no wage loss.
The Office directed recovery of the overpayment through a lump-sum payment of the entire
amount.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of her duty.5 Section 8129(a) of the Act provides, in
1

By decision dated March 4, 2005, the Office denied appellant’s request for a lumbar support and an EMS
(electronic muscle stimulator) unit. This decision is not before the Board on the present appeal.
2

By decision dated June 6, 2005, the Office terminated appellant’s wage-loss and medical benefits as the medical
evidence demonstrated the accepted lumbar condition had ceased without residuals. This decision is not before the
Board on the present appeal
3

The Office calculated that for the period April 4 to May 14, 2005 appellant received $3,265.58 in compensation.

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8102(a).

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pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”6 The
Office’s procedure manual identifies various situations when overpayments of compensation
may occur, including when a schedule award expires but compensation continued to be paid.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a lumbar strain on April 8, 2004. Appellant
was off work from April 9, 2004 through April 4, 2005, when she returned to work with no loss
of wages. The evidence reflects and she does not dispute that she received wage-loss
compensation from the Office in the amount of $3,265.58 for the period April 4 to
May 14, 2005. As appellant was not entitled to receive any disability compensation as of
April 4, 2005, the Board finds that the Office correctly determined that appellant received an
overpayment of compensation in the amount $3,265.58 for the period in question.8
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.9 Section 10.433 of the implementing regulations specifically provides that the
Office may consider waiving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.10 The regulation further provides that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.11 Under the regulations, a recipient
will be found to be at fault with respect to creating an overpayment if the recipient on the issue
of fault, section 10.433 of the Office’s regulations, provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known was incorrect.12

6

5 U.S.C. § 8129(a).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
8

Alberto Pineiro, 51 ECAB 310 (2000).

9

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

10

20 C.F.R. § 10.433(a).

11

Id.

12

20 C.F.R. § 10.433(a)(3).

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Section 10.433(b) of the Office’s regulations provides, in relevant part, that the
determination of fault “depends on the circumstances surrounding the overpayment. The degree
of care expected may vary with the complexity of those circumstances and the individual’s
capacity to realize that he or she is being overpaid.”13
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment under the third
standard noted above, because she accepted payments after April 4, 2005, the date she returned
to work with no loss of wages. It advised appellant by August 6, 2004 letter of her obligation to
return compensation checks encompassing any period after she returned to work.
By accepting payments after appellant returned to work on April 4, 2005 with no loss of
wages, she accepted payments that she knew or should have known were incorrect. Therefore,
appellant was at fault in the creation of the overpayment.14 She accepted compensation
payments for the period April 4 to May 14, 2005, in the amount of $3,265.58. As appellant was
aware that she was no longer entitled to compensation after she returned to work with no wage
loss, she accepted payments that she knew or should have known to be incorrect. Accordingly,
the Board finds that appellant was at fault in the creation of the overpayment.15 The fact that the
Office may have been negligent in issuing the payments does not mitigate this finding.16
As appellant was at fault in the creation of the overpayment, she is not eligible for waiver
of recovery of the overpayment. The Office is required by law to recover this overpayment.17
CONCLUSION
The Board finds that the Office properly found that appellant received an overpayment of
compensation in the amount of $3,265.58. The Board further finds that appellant was at fault in
creation of the overpayment and it was therefore not subject to waiver.

13

20 C.F.R. § 10.433(b).

14

Neill D. Dewald, 57 ECAB 451 (2006).

15

Id.

16

20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

17

Recovery of the overpayment is not an issue in this case, as appellant is not in receipt of continuing total
disability payments. With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those
cases where the Office seeks recovery from continuing compensation benefits under the Act. 20 C.F.R. § 10.441(a);
see Albert Pineiro, supra note 8; Lorenzo Rodriguez, 51 ECAB 295 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2008 is affirmed.
Issued: December 4, 2008
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

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

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Appearances:
Joseph E. Allman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1019
Issued: May 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 14, 2016 appellant, through counsel, filed a timely appeal from an October 30,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated July 15, 2014, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 3, 2014 appellant, then a 47-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 3, 2014, she sustained injuries to her left lower
abdominal quadrant and left leg. She indicated that she had left inguinal pain and vaginal
bleeding. Appellant attributed her condition to heavy lifting.3 She reported carrying a parcel to
the door, as well as lifting trays of mail and moving them from the back to the front of her work
vehicle. Appellant stopped work on February 5, 2014.
On her claim form, appellant reported that she first received medical treatment on
February 7, 2014. On that same date, she saw Dr. Dennis Pippenger, a Board-certified
gynecologist, who noted that appellant presented with a complaint of vaginal bleeding, which
reportedly had been occurring for a week. Appellant’s prior surgical history included a 2005
hernia repair, a 2007 excision of both ovaries (bilateral salpingo-oophorectomy - BSO), and a
2007 total vaginal hysterectomy. Dr. Pippenger noted that appellant believed the bleeding may
be caused by her hernia because it was heavier when she lifted things at work. He diagnosed
postmenopausal vaginal bleeding and vaginal atrophy. Dr. Pippenger also noted that appellant
may have an inguinal hernia, and that she lifted a lot at work.
On February 14, 2014 Dr. Samuel Heiser, a Board-certified general surgeon, examined
appellant for possible recurrent left inguinal hernia. He noted that she indicated that
approximately 10 days prior, she was lifting a tray of mail weighing about 35 pounds. Appellant
related to Dr. Heiser that she had experienced sudden discomfort in the left inguinal area and did
not recall twisting in any particular direction or doing anything remarkable. Dr. Heiser remarked
that appellant “simply developed sharp pain in the region.” He indicated that she believed that
she may have developed a recurrence of her hernia, which had been surgically repaired in 2005.
Dr. Heiser examined appellant and explained that it was possible that the hernia repair had failed,
but he could not feel any evidence. He indicated a computerized tomography (CT) scan would
help in that regard. Dr. Heiser also advised that appellant may have pulled the scar tissue in that
area, which he had seen on occasion when someone twisted in a particular manner. However, he
noted that the significant pain associated with pulled scar tissue usually resolved quickly.
Dr. Heiser recommended pain medication and a CT scan.
A February 17, 2014 abdomen/pelvis CT scan revealed no acute process, old
granulomatous disease, status post left lower abdominal hernia repair, hepatomegaly (enlarged
liver), and constipation.
In a February 18, 2014 report, Dr. Heiser noted that he saw appellant on February 14
and 18, 2014 following x-rays to determine the cause of discomfort in her left lower quadrant
3

Appellant also noted that she underwent surgery on October 13, 2005 for a work-related hernia under OWCP
File No. xxxxxx405.

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and left leg. He indicated that appellant’s reported discomfort “followed some heavy lifting at
work.” Dr. Heiser advised that she would undergo further evaluation in order to “shed more
light on her discomfort and its etiology.”
On February 27, 2014 appellant received left lower quadrant myofascial trigger point
injections. The reported history of injury was that on February 3, 2014, appellant experienced a
sudden onset of left lower quadrant pain after she lifted a heavy box at work. The diagnoses
included left lower quadrant pain and myofascial pain syndrome.
In a February 28, 2014 follow-up report, Dr. Pippenger continued to diagnose
postmenopausal vaginal bleeding and vaginal atrophy. At this visit, appellant reportedly felt fine
now with no bleeding. The plan was for her to continue with her current medication and to
follow-up as needed.
In a March 11, 2014 report, Dr. Daniel T. McKenna, a general surgeon, noted that
appellant underwent an uncomplicated laparoscopic left femoral hernia repair in 2005. He
advised that appellant did a great deal of heavy lifting with her job as a mail carrier and had pain
both before and after her surgery. Dr. McKenna indicated that the pain intensified when
appellant lifted something heavy on February 3, 2014. He advised that she had heavy vaginal
bleeding at the time. Dr. McKenna explained that appellant was advised not to do so much
heavy lifting moving forward. He diagnosed inguinodynia, status post laparoscopic left inguinal
hernia repair. Dr. McKenna discussed the etiology of her pain, which was unlikely to be from an
inguinal hernia. He suspected that it was related to muscular strain or the mesh pulling on the
musculature. Dr. McKenna wanted to ensure that there was no muscular swelling or tears and
requested a magnetic resonance imaging (MRI) scan. He also completed a work/school excuse
form advising “no lifting [at] all.”
A March 18, 2014 MRI scan of the pelvis read by Dr. Fatih Akisik, a Board-certified
diagnostic radiologist, revealed a limited study given susceptibility artifact from left femoral
hernia surgical repair, but no evidence of T2 hyperintense inflammatory process within the
adjacent abdominal wall musculature. Dr. Akisik also noted there were findings suggestive of
pelvic floor congestion syndrome.
In a March 18, 2014 report, Dr. McKenna advised that appellant continued to have
abdominal and groin pain, which worsened with lifting. He noted that her pain began following
lifting at work. Dr. McKenna reviewed the MRI scan results, and found that appellant did not
demonstrate further damage or provide evidence of a recurrent hernia. He advised no heavy
lifting in the future, which would preclude appellant from her job in the postal service.
In a March 19, 2014 report, Dr. McKenna opined that appellant was not capable of
performing the daily requirements of her current job due to the February 3, 2014 work injury.
He advised that she was unable to lift, stand, bend, push, pull, or walk.
In a May 1, 2014 report, Dr. McKenna indicated that appellant underwent a complicated
laparoscopic left femoral hernia repair in 2005. He explained that she did a great deal of heavy
lifting at work with her job as a mail carrier and had pain before and after the surgery.
Dr. McKenna advised that the pain intensified on February 3, 2014 after appellant lifted

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something heavy. He noted that she had heavy bleeding at that time, and her gynecologist found
that she had torn a part of her vaginal closure from the previous hysterectomy. Dr. McKenna
indicated that there was no evidence of a recurrent hernia. He diagnosed inguinodynia, status
post laparoscopic left inguinal hernia repair. Dr. McKenna suspected that appellant’s pain was
related to muscular strain or the mesh pulling on the musculature. He explained that the chronic
strain of lifting led to her chronic pain and previous inguinal hernia. Dr. McKenna advised that
appellant should not perform any heavy lifting greater than 25 pounds, as this would aggravate
her condition.
In a May 29, 2014 report, Dr. McKenna repeated the findings of his May 1, 2014 report.
He reiterated that appellant underwent a complicated laparoscopic left femoral hernia repair in
2005. Dr. McKenna explained that appellant did a great deal of heavy lifting at work with her
job as a mail carrier and had pain before and after the surgery. He advised that the pain
intensified after she lifted something heavy on February 3, 2014. Dr. McKenna noted that she
had heavy vaginal bleeding at that time and that her gynecologist found that she had torn part of
her vaginal closure from the previous hysterectomy. He indicated that there was no evidence of
a recurrent hernia. Dr. McKenna diagnosed inguinodynia, status post laparoscopic left inguinal
hernia repair. He opined that it was unlikely to be from an inguinal hernia, and he suspected it
was related to muscular strain or the mesh pulling on the musculature. Dr. McKenna explained
that her pain began after lifting at work. He recommended that appellant undergo no heavy
lifting and opined that the chronic strain of lifting led to her chronic pain and previous inguinal
hernia.
In a decision dated July 15, 2014, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish that a medical condition had been diagnosed in
connection with the accepted February 3, 2014 employment incident. It explained that the
medical evidence submitted did not contain a definitive medical diagnosis, and that pain was not
a diagnosis. Consequently, OWCP denied appellant’s traumatic injury claim because of her
failure to establish the medical component of fact of injury.
On July 10, 2015 OWCP received a request for reconsideration from counsel. Counsel
provided additional copies of Dr. McKenna’s March 19 and May 29, 2014 reports. He argued
that this evidence was sufficient to satisfy appellant’s burden of proof under FECA, and that
OWCP’s prior decision should be reversed.
By decision dated October 30, 2015, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant a review of the
merits of the claim. It found that the evidence was repetitious and consisted of a copy of a
previously considered medical report from Dr. McKenna.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
4

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).

4

limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.6 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8
ANALYSIS
In the July 10, 2015 request for reconsideration, counsel argued that Dr. McKenna’s
March 19 and May 29, 2014 reports were sufficient to establish appellant’s entitlement to
benefits under FECA. He argued that a “common sense” reading of Dr. McKenna’s report(s)
established diagnoses related to the February 3, 2014 accepted employment incident. Apart from
counsel’s belief concerning the adequacy of Dr. McKenna’s above-noted reports, the July 10,
2015 request for reconsideration neither alleged nor demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Additionally, he did not advance any relevant legal
arguments not previously considered by OWCP. The Board finds that appellant is not entitled to
a review of the merits based on the first and second requirements under section 10.606(b)(3).9
Counsel also failed to submit pertinent and relevant new evidence with the July 10, 2015
request for reconsideration. He resubmitted Dr. McKenna’s March 19 and May 29, 2014 reports.
OWCP’s July 15, 2014 merit decision specifically referenced a “[March 19, 2014]” disability
slip and a medical report dated “[May 29, 2014].” Providing additional evidence that either
repeats or duplicates information already in the record does not constitute a basis for reopening a
claim.10 Because counsel did not provide any pertinent and relevant new evidence appellant is
not entitled to a review of the merits based on the third requirement under section 10.606(b)(3).11
Accordingly, OWCP properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a). The
Board shall affirm OWCP’s October 30, 2015 nonmerit decision.
5

20 C.F.R. § 10.607.

6

Id. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision. For
merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt
date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

20 C.F.R. § 10.606(b)(3).

8

Id. § 10.608(a), (b).

9

Id. § 10.606(b)(3)(i) and (ii).

10

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

11

20 C.F.R. § 10.606(b)(3)(iii).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Tobyhanna, PA, Employer
__________________________________________

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)
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Appearances:
1
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-1546
Issued: April 19, 2017

Case Submitted on the Record

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

JURISDICTION
On July 27, 2016 appellant filed a timely appeal from a June 1, 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 the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment causally related to his accepted right ankle condition, warranting a schedule award
under 5 U.S.C. § 8107.
FACTUAL HISTORY
Appellant, a 51-year-old electronics mechanic, injured his right ankle on December 1,
2013 when he slipped and fell after stepping off a loading dock onto a patch of snow-covered
ice. He filed a traumatic injury claim (Form CA-1), which OWCP accepted for right ankle
fracture.
Appellant underwent an open reduction/internal fixation procedure surgery on his right
ankle on December 10, 2013. The procedure was performed by Dr. Christopher Henderson,
Board-certified in orthopedic surgery.
On December 17, 2014 appellant filed a schedule award claim (Form CA-7) based on a
partial loss of use of his right foot.
By letter dated January 9, 2015, OWCP informed appellant that it required additional
medical evidence in order to determine whether he was entitled to a schedule award. It advised
him that he was required to provide a medical opinion from a physician which included findings
showing how he arrived at an impairment rating and a diagnosis on which the impairment was
based. OWCP further advised that the opinion should state exactly which section of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (hereinafter
A.M.A., Guides)3 the physician used to calculate the rating. It afforded appellant 30 days to
submit the additional evidence. Appellant did not submit any additional medical evidence.
By decision dated July 16, 2015, OWCP found that appellant had no ratable impairment
causally related to his accepted right ankle condition and therefore was not entitled to a schedule
award.
By letter dated July 21, 2015, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative.
In a July 29, 2015 report, Dr. Albert D. Janerich, Board-certified in physical medicine
and rehabilitation, advised that appellant was recovering from his December 10, 2013 right ankle
injury. He reported that the injury had resulted in a right leg impairment which also caused
problems in his right knee. Dr. Janerich reported that appellant underwent a magnetic resonance
imaging (MRI) scan of his right knee, the results of which showed some meniscal disease and
arthritis.
In a November 10, 2014 report, received by OWCP on October 26, 2015, Dr. Gerald E.
Dworkin, an osteopath Board-certified in physical medicine and rehabilitation, found that
3

6th ed. 2009.

2

appellant had 8 to 10 percent permanent impairment of the lower extremity. He advised that
appellant underwent right ankle surgery on December 10, 2013, a procedure which entailed an
open reduction, internal fixation with medial screws and lateral plate fixation for the fracture site.
Dr. Dworkin noted that appellant underwent almost four months of physical therapy and then
returned to work on approximately February 24, 2014. He reported that appellant continued to
complain of pain in and around the right knee, particularly in the anterior aspect and infrapatellar
region. Dr. Dworkin noted, however, that his MRI scan demonstrated no soft tissue or fracture
component. He noted that appellant experienced periodic right knee swelling and pain, and
stiffness with mobility, standing and sitting for long periods of time.
Dr. Dworkin advised that appellant had a negative Lachman’s maneuver and no
significant deformity in the right leg, with normal muscle strength, sensation and deep tendon
reflexes. He noted that, under the A.M.A., Guides,4 appellant reached maximum medical
improvement, with minimal, residual symptomatology as a result of his fractures, including
intermittent pain, swelling, and stiffness, and no significant abnormal angulations or deformity at
the knee joint.
By decision dated June 1, 2016, an OWCP hearing representative affirmed the July 16,
2015 decision. She noted that Dr. Dworkin did not explain his rating or the specific examination
findings on which he based his lower extremity rating. OWCP’s hearing representative indicated
that, absent evidence of a ratable impairment due to his employment from appellant’s treating
physician or another examining physician, there was no basis for a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 Effective May 1, 2009, OWCP began using
the A.M.A., Guides (6th ed. 2009). The claimant has the burden of proving that the condition for
which a schedule award is sought is causally related to his or her employment.8

4

Dr. Dworkin did not indicate what edition or what section of the A.M.A., Guides he used in rendering his
impairment rating.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

3

ANALYSIS
OWCP accepted the condition of right ankle fracture. Dr. Dworkin treated appellant for
his right ankle symptoms and submitted a November 10, 2014 report supporting a schedule award
for the lower extremity. However, his report merely noted the history of appellant’s right ankle
injury, indicated MRI scan findings of the right knee, noted findings on examination, and found
summarily that appellant had 5 to 10 percent permanent impairment rating of the lower extremity
pursuant to the A.M.A., Guides. Dr. Dworkin did not indicate the specific anatomical area to
which this rating applied or explain the basis of this rating. OWCP had requested that appellant
submit a thorough, rationalized medical report containing an impairment evaluation rendered in
conformance with the applicable tables and protocols of the sixth edition of the A.M.A., Guides.
Appellant, however, did not provide such a report. He submitted no additional impairment
evaluations or ratings. As appellant failed to provide an impairment rating rendered in
accordance with the applicable protocols and tables of the A.M.A., Guides, he did not meet his
burden of proof to establish ratable permanent impairment attributable to his accepted right ankle
condition. Therefore, he was not entitled to a schedule award.9
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment causally related to his accepted right ankle condition, warranting a schedule award
under 5 U.S.C. § 8107.

9

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 19, 2017
Washington, DC

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

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

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

5


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

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

Docket No. 19-1034
Issued: November 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 11, 2019 appellant, through counsel, filed a timely appeal from a February 28,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot/ankle
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 17, 2017 appellant, then a 46-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a right foot/ankle condition due to factors of her
federal employment including walking six to seven hours a day while carrying mail. She noted
that she first became aware of her claimed condition on May 30, 2014 and first realized its relation
to her federal employment duties on December 18, 2015. Appellant stopped work on
January 9, 2017.
A January 17, 2017 right lower extremity computerized tomography (CT) scan revealed
calcaneal spurring. A February 16, 2017 bilateral lower extremity electromyogram and nerve
conduction velocity (EMG/NCV) scan revealed diffuse peripheral neuropathy of mild severity of
mixed axonal and demyelinating character.
In a statement dated March 17, 2017, appellant explained that on May 30, 2014 she
experienced excruciating pain in her right foot which she attributed to carrying mail weighing up
to 35 pounds for six to seven hours a day, five days a week. She was treated by a physician on
December 18, 2015 and continued to manage her pain until January 9, 2017 when she could no
longer carry mail and stopped work.
In a development letter dated March 29, 2017, OWCP notified appellant of the type of
additional evidence needed to establish her occupational disease claim, including a statement from
her attending physician explaining a causal relationship between those exposures and the claimed
conditions. It afforded her 30 days to submit the requested evidence.
OWCP received laboratory reports dated January 11, 2017 and copies of the previously
submitted diagnostic studies. Additionally, it received a record of appellant’s various
appointments with her podiatrist(s) from December 2015 through February 2017.
In a statement dated April 5, 2017, appellant indicated that her correct date of injury was
May 30, 2015, rather than May 30, 2014 as initially noted on her Form CA-2.
By decision dated June 14, 2017, OWCP denied appellant’s claim, finding that she had not
met her burden of proof to establish that her claimed medical condition was causally related to the
established employment factors.
Appellant was treated by Dr. Nikolay Gatalyak, a podiatrist, on June 2, 2017 for right lower
extremity pain. She related that she was a mail carrier for many years and, while at work, she
walked approximately 10 miles a day and developed foot pain. Appellant indicated that she did
not experience foot problems prior to becoming a mail carrier. She noted that her symptoms
improved after being assigned a driving route instead of a walking route. Findings on examination
revealed light touch sensation present in both feet, positive Tinel’s sign in tarsal tunnel region and
med dorsal cut nerve, no evidence of erythema, ecchymosis, open lesions, or infection, intact
2

muscle strength, and pain along the tarsal tunnel. Dr. Gatalyak diagnosed pain in limb,
tenosynovitis of the ankle, tarsal tunnel syndrome, and neuritis. He administered a steroid
injection. Dr. Gatalyak opined that appellant’s right foot/ankle symptoms could have started due
to the nature of her job and the physical demands including ambulating greater than 10 miles per
day on uneven terrain with additional weight from the mail.
On June 22, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on November 7, 2017.
By decision dated December 8, 2017, an OWCP hearing representative affirmed the
June 14, 2017 decision.
Appellant was treated by Dr. Aaron J. Chokan, a podiatrist, on December 5, 2017 for right
ankle pain which began one year earlier. She reported working as a mail carrier and walking 10 to
14 miles a day and expressed concern that her job duties created her foot problems. Dr. Chokan
opined that because appellant’s condition has been on-going for a year there could be a causal
relationship between her inflamed tarsal tunnel nerve and enlarged accessory muscles and overuse
from walking. He noted no tenderness of the lower extremities, intact strength, pain with range of
motion along the posterior tibial nerve and flexor tendon of the medial ankle, positive Tinel’s sign
of right ankle and lower leg, and pain with eversion of the right ankle. Dr. Chokan reviewed the
magnetic resonance imaging (MRI) scan of the foot that, which was positive for flexor digitorum
accessory muscle which, he opined, could have been from repetitive ankle sprains and long
walking. He diagnosed tarsal tunnel syndrome and right lower limb and other myositis of the right
ankle and foot. Dr. Chokan recommended surgery to address the conditions.
On December 22, 2017 Dr. Chokan performed a tarsal tunnel release of the right ankle,
implantation of the nerve and nerve fibers into the muscle, and removal of accessory muscle and
myomectomy of the accessory muscle. He diagnosed neuritis of the posterior tibial nerve, right
lower extremity, tarsal tunnel syndrome right lower extremity, neuroma of the posterior tibial
nerve, and chronic hypertrophic muscle of the flexor longus accessory muscle.
In reports dated January 4 and 11, 2018, appellant presented postoperatively with foot pain
and muscle spasms. Dr. Chokan noted an incision of the medial ankle with swelling, moderate
pain, mild bruising, and ecchymosis. He diagnosed tarsal tunnel syndrome of the right lower limb
and other myositis of the right ankle and foot, and recommended a cam walker boot and multilayer
compression wrap. On January 11, 2018 Dr. Chokan removed sutures and indicated that appellant
was disabled from work for two additional weeks.
On February 6, 2018 appellant, through counsel, requested reconsideration.
By decision dated May 2, 2018, OWCP denied modification of the December 8, 2017
decision.
On October 4, 2018 appellant, through counsel, requested reconsideration. Counsel
submitted a July 5, 2018 report from Dr. Chokan who noted that appellant had pain and nerve
irritation in her right foot since 2014. He explained that her condition was related to her work due
to valgus deformity, and required walking on uneven terrain during her mail route, which caused
irritation and stimulation of pain in her right ankle. Appellant reported that during her time with
3

the postal service her symptoms became worse. Dr. Chokan opined that her symptoms were
caused by her deformity, delivering mail on uneven terrain, and hopping in an out of a mail truck.
He noted that appellant’s pain resolved and she returned to work with modifications.
By decision dated December 7, 2018, OWCP denied modification of the May 2, 2018
decision.
On January 25, 2019 appellant, through counsel, requested reconsideration. In support of
reconsideration, counsel submitted a December 4, 2018 report from Dr. Chokan who noted that
she presented on July 12, 2018, six days after an injury which occurred when she stepped out of
her work truck and twisted her left ankle. Dr. Chokan noted that x-rays revealed a small hairline
fracture of her fibula and that she was treated with immobilization. He opined that appellant
sustained a work-related injury. The December 4, 2018 report referenced OWCP File
No. xxxxxx482.
By decision dated February 28, 2019, OWCP denied modification of the December 7, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by medial
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

P.D., Docket No. 17-1885 (issued September 17, 2018).

4

rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right foot/ankle
condition causally related to the accepted factors of her federal employment.
Appellant was treated by Dr. Gatalyak on June 2, 2017, for right lower extremity pain. She
reported working as a mail carrier for many years and walked approximately 10 miles a day and
developed foot pain. Dr. Gatalyak diagnosed pain in limb, tenosynovitis of the ankle, tarsal tunnel
syndrome, and neuritis. He opined that appellant’s foot and ankle symptoms could have started
due to the nature of her job and the physical demands including ambulating more than 10 miles a
day on uneven terrain with a mailbag. While Dr. Gatalyak repeated the history of injury as
reported by her, he did not provide his own opinion regarding whether her condition was work
related. The mere recitation of patient history does not suffice for purposes of establishing causal
relationship between a diagnosed condition and the employment incident.8 Without explaining
physiologically how the accepted employment incident caused or contributed to the diagnosed
conditions, the physician’s reports are of limited probative value.9
On December 5, 2017 Dr. Chokan treated appellant for right ankle pain and opined that
because her condition had been ongoing for a year there “could” be a causal relationship between
her inflamed tarsal tunnel nerve and enlarged accessory muscles and overuse from walking her 10
to 14 miles mail route. He noted that a right foot MRI scan was positive for flexor digitorum
accessory muscle which “could have” been from repetitive ankle sprains and long walking.
Dr. Chokan diagnosed tarsal tunnel syndrome and right lower limb and other myositis of the right
ankle and foot. The Board notes that his report provides some support for causal relationship, but
is insufficient to establish the claimed right foot condition was causally related to appellant’s
employment duties. In that report, Dr. Chokan opined that it “could” be due to her work duties.
However, his report provides only speculative support for causal relationship as he qualifies his
support by noting that appellant’s employment “could” have caused her condition. Therefore, this
report is insufficient to meet her burden of proof.10
Similarly, an operative report from Dr. Chokan dated December 22, 2017, diagnosed
neuritis of the posterior tibial nerve, right lower extremity, tarsal tunnel syndrome right lower
extremity, neuroma of the posterior tibial nerve, and chronic hypertrophic muscle of the flexor
longus accessory muscle. In other reports dated January 4 and 11, 2018, Dr. Chokan diagnosed
tarsal tunnel syndrome of the right lower limb and other myositis of the right ankle and foot. The
Board finds that these reports of Dr. Chokan failed to offer an opinion regarding the cause of
7

R.P., Docket No. 17-1914 (issued November 27, 2018).

8

See J.G., Docket No. 17-1382 (issued October 18, 2017).

9

See A.B., Docket No. 16-1163 (issued September 8, 2017).

10
Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).

5

appellant’s condition. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11 These reports, therefore, are insufficient to establish appellant’s claim.
On July 5, 2018 Dr. Chokan opined that appellant’s condition was related to valgus
deformity, the need to walk on uneven terrain during her mail route, and hopping in an out of a
mail truck, which caused irritation and pain in her right ankle. He explained that repetitive valgus
stress on the ankle caused her condition. Dr. Chokan did not, however, provide medical rationale
for his causation finding. The Board has held that medical conclusions unsupported by rationale
are of little probative value.12
On December 4, 2018 Dr. Chokan treated appellant for a left ankle injury which occurred
at work on July 12, 2018. This report is insufficient to meet her burden of proof with respect to
her claimed right foot/ankle condition. Dr. Chokan referenced a left ankle traumatic injury that
occurred on July 6, 2018 which is the subject of OWCP File No. xxxxxx482, and that particular
claim is not currently before the Board.
Lastly, appellant submitted a CT scan of the right foot dated January 17, 2017 and an
EMG/NCV report dated February 16, 2017. The Board has held that reports of diagnostic tests
lack probative value as they do not provide an opinion on causal relationship between her
employment duties and a diagnosed condition.13
The Board finds that the above-noted medical evidence, including the reports from
appellant’s podiatrist, are insufficient to establish that her right foot/ankle condition is causally
related to the accepted factors of her federal employment. Accordingly, appellant has not met her
burden of proof to establish entitlement her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right foot/ankle
condition causally related to the accepted factors of her federal employment.

11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

See T.A., Docket No. 18-0431 (issued November 7, 2018).

13

See J.M., Docket No. 17-1688 (issued December 13, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Z., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ANN ARBOR VETERANS HEALTH
ADMINISTRATION Ann Arbor, MI, Employer
__________________________________________

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

Docket No. 20-0352
Issued: August 18, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 3, 2019 appellant, through counsel, filed a timely appeal from a
September 17, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted June 8, 2018 employment incident.
FACTUAL HISTORY
On October 1, 2018 appellant, then a 54-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that on June 10, 2018 she sustained a left shoulder rotator cuff tear
and damage to the suprascapular nerve when lifting a box while in the performance of duty. On
the reverse side of the claim form the employing establishment contended that she was not in the
performance of duty when she was injured. It noted that appellant was not on duty on June 10,
2018 and did not report the alleged incident until September 2018. Appellant stopped work on
June 15, 2018 and returned to work on September 10, 2018.
In an October 12, 2018 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested additional factual and medical evidence and provided a questionnaire for
her completion. OWCP afforded appellant 30 days to respond.
Appellant provided additional evidence. On June 10, 2018 she underwent left shoulder
xrays which demonstrated widening at the left acromioclavicular (AC) joint.
On June 12, 2018 appellant sought treatment of her left shoulder at the emergency room.
Dr. Avinash Prabhakar, a Board-certified internist, reported her history of moving a box at work.
He noted that appellant previously underwent a magnetic resonance imaging (MRI) scan, which
demonstrated tendinosis and superior labrum anterior and posterior (SLAP) tear. Dr. Prabhakar
reviewed a February 12, 2018 MRI scan and found moderate-to-severe subscapularis tendon
tendinosis, moderate supraspinatus tendon tendinosis, and a degenerated superior labrum with no
definite tear. He also found mild-to-moderate AC joint degenerative changes. Dr. Prabhakar
diagnosed aggravation of known rotator cuff tear, and SLAP tear.
In June 15 and 16, 2018 notes, Dr. Daniel P. Sheesley, an osteopath, noted appellant’s
complaints of chronic left shoulder pain, but that she denied a left shoulder injury. He diagnosed
adhesive capsulitis.
On June 26, 2016 Dr. Syed Habib, a Board-certified orthopedic surgeon, examined
appellant due to left shoulder impingement and adhesive capsulitis. He also examined her on
July 19, 2018 and recounted her concern that she may have torn a tendon from a June 2018 injury
when she was moving a heavy item.
Appellant provided notes beginning June 26, 2018 from a physical therapist.
On July 20, 2018 appellant underwent an additional left shoulder MRI scan, which
demonstrated AC joint osteoarthritis, subscapularis tendinosis, supraspinatus tendinosis, and
intrasubstance tear, as well as mild edema of the supraspinatus and infraspinatus muscles.

2

Dr. Habib examined appellant on August 7, 2018 and diagnosed impingement syndrome
of the left shoulder region. He noted that she had recounted a previous diagnosis of compressed
discs in the cervical spine based on an MRI scan.
In an August 8, 2018 note, Dr. Gabriel Solomon, a physician Board-certified in geriatric
medicine, provided work restrictions.
On September 10 and 26, 2018 Dr. Mark Pinto, a Board-certified orthopedic surgeon,
examined appellant due to left shoulder pain with atrophy. He listed her history of injury as lifting
a mirror and experiencing a “zing.” Appellant’s September 10, 2018 left shoulder x-rays were
normal. Dr. Pinto reviewed her September 18, 2018 electromyogram (EMG) and noted moderateto-severe supraspinatus neuropathy at the suprascapular notch with possible cervical
radiculopathy. He diagnosed left shoulder suprascapular neuropathy.
By decision dated November 15, 2018, OWCP denied appellant’s traumatic injury claim,
finding that she had not established factual component of her claim as she had not responded to its
factual development questionnaire. It, thus, concluded that the requirements had not been met to
establish an injury as defined by FECA.
OWCP continued to receive evidence. In a November 8, 2018 response to OWCP’s factual
development questionnaire, appellant asserted that she injured her left shoulder at work on
June 8, 2018. She indicated that she was delivering wheelchairs and rollers that were boxed, but
awkward and heavy. While moving a large box in an attempt to put it on a shelf, appellant
experienced a knife-like stabbing pain in her left shoulder. She first sought medical attention on
June 10, 2018.
On November 30, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On April 10, 2019 appellant testified before an OWCP hearing representative and noted
that her current position was as a purchasing agent, which began in September 2018. She described
her previous position as requiring heavy moving and lifting. Appellant also described her June 10,
2018 employment injury as lifting a heavy box and experiencing a sharp pain in her left shoulder.
She noted that she sought medical treatment within a week of the employment incident. Appellant
denied informing Dr. Pinto that she was lifting a mirror and testified that she informed him she
was lifting a box.
On June 11, 2018 Dr. Solomon examined appellant after she injured her shoulder at work
lifting something. He reviewed her left shoulder x-ray and suggested that she had a rotator cuff
injury or partial tear.
By decision dated June 24, 2019, OWCP’s hearing representative modified OWCP’s
November 15, 2018 decision, finding that appellant had established that the June 8, 2018
employment incident occurred as alleged and the medical evidence of record established a
diagnosed condition. However, the claim remained denied as the medical evidence was
insufficient to established causal relationship between the accepted June 8, 2018 employment
incident and the diagnosed conditions.

3

On August 23, 2019 appellant, through counsel, requested reconsideration and submitted
an additional report from Dr. Pinto. In a note dated May 20, 2019, Dr. Pinto noted that she lifted
a box weighing approximately 50 pounds on June 10, 2018. He found that the lifting injury was
consistent with appellant’s pathology, that suprascapular neuropathy was confirmed by EMG, and
that her history and the pathology were completely consistent and related to her injury at work.
By decision dated September 17, 2019, OWCP denied modification of the June 24, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.9 The weight of the medical evidence
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).

9
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345 (1989).

4

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.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted June 8, 2018 employment incident.
In support of her claim, appellant provided a note dated May 20, 2019 from Dr. Pinto. Dr.
Pinto noted her history of injury and opined that the lifting injury was consistent with her pathology
and was related to her injury at work. Although Dr. Pinto supported causal relationship, he failed
to provide medical rationale explaining the basis of his conclusory opinion. Without explaining,
physiologically, how the accepted employment incident caused or aggravated the diagnosed
conditions, this report is of limited probative value and insufficient to establish appellant’s claim.11
Appellant also provided reports from Drs. Prabhakar, Habib, and Pinto, noting a lifting
injury at work and providing various left shoulder diagnoses. The physicians did not, however,
offer a medical opinion as to whether appellant’s diagnosed conditions were causally related to the
accepted employment incident. The Board has held that medical evidence that does not provide
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.12 Therefore, these medical reports are also insufficient to establish appellant’s
claim.
Appellant also submitted diagnostic studies including x-rays, an EMG study, and MRI
scans addressing physical findings in her left shoulder. The Board has held, however, that
diagnostic studies standing alone lack probative value on the issue of causal relationship as they
do not provide an opinion on causal relationship between an employment incident and a diagnosed
condition.13
Appellant provided a series of notes beginning June 26, 2018 from a physical therapist.
The Board has held that reports signed solely by physical therapists are of no probative value as
physical therapists are not considered physicians as defined under FECA.14 These reports are,
therefore, insufficient to establish appellant’s claim.

10

D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).

11

S.K., Docket No. 20-0102 (issued June 12, 2020); M.M., Docket No. 20-0019 (issued May 6, 2020).

12

Id.

13

Id.

Section 8101(2 of FECA provides that 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. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); D.H., Docket
No. 18-0072 (issued January 21, 2020) (physical therapists are not considered physicians under FECA).
14

5

As appellant has not submitted rationalized medical evidence establishing causal
relationship between her diagnosed left shoulder conditions and the accepted June 8, 2018
employment incident, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds appellant has not met her burden of proof to establish a left shoulder injury
causally related to the accepted June 8, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cartersville, GA, Employer
__________________________________________

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

Docket No. 18-0221
Issued: June 7, 2018

Case Submitted on the Record

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

JURISDICTION
On March 17, 20171 appellant filed a timely appeal from a February 14, 2017 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 to consider the merits of the case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. One hundred and eighty
days from February 14, 2017, the date of OWCP’s most recent merit decision, was August 13, 2017. Since using
November 8, 2017, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal
rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is
March 17, 2017, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish degenerative cuff
tear of the right shoulder causally related to the accepted October 22, 2016 employment incident.
FACTUAL HISTORY
On November 7, 2016 appellant, then a 65-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 22, 2016 he injured his right shoulder while
repetitively pulling on mailboxes and lifting mail and parcels while in the performance of duty.
He stopped work on October 24, 2016. In support of his claim, appellant provided an October 26,
2016 note from Susan E. Deguia, a nurse practitioner.
In a November 23, 2016 development letter, OWCP requested additional factual and
medical evidence in support of appellant’s claim and provided him with a questionnaire. It
informed appellant that evidence from a physician assistant or nurse practitioner was insufficient
to establish his claim. OWCP afforded appellant 30 days for a response.
Appellant provided additional documentation from Ms. Deguia including a November 4,
2016 authorization for examination and/or treatment (Form CA-16). He completed OWCP’s
questionnaire on December 6, 2016 and described his work duties on October 22, 2016, including
opening and closing mailbox lids to deposit mail into the boxes. Appellant noted that his route
included over 600 mailboxes and that some lids could be stuck and harder to open requiring a tug
to pull the lid open.
On December 13, 2016 Dr. Leverett Neville, a radiologist, conducted a magnetic resonance
imaging (MRI) scan of appellant’s right shoulder. He found a near full-thickness tear of the
anterior margin of the supraspinatus involving the bursal and articular surface, moderate
degenerative changes of the acromioclavicular joint, and edema.
By decision dated December 28, 2016, OWCP denied appellant’s traumatic injury claim,
finding that appellant had not provided medical evidence establishing that a medical diagnosis was
causally related to the accepted employment incident.
On February 1, 2017 appellant requested reconsideration and provided additional medical
evidence. In a report dated January 15, 2017, Dr. Jayson Fields, a Board-certified family
practitioner, explained that he had first examined appellant on October 27, 2016 due to shoulder
pain with limited range of motion. Appellant informed him that on October 22, 2016, partway
through his delivery route, he had felt a pull in his shoulder while putting mail in one of the boxes.
Dr. Fields noted that, as there was no history of acute trauma, appellant’s condition was most
consistent with completion of a degenerative cuff tear. He concluded, “[d]egenerative tears most
often are related to work habits and rather indolent until the sudden completion of the tear. The
final tear may occur while doing regular daily activities.” Dr. Fields completed a form report on
December 23, 2016 and diagnosed supraspinatus tear and degenerative acromioclavicular joint
bursitis.

2

By decision dated February 14, 2017, OWCP modified its December 28, 2016 decision to
reflect that appellant had established the medically-diagnosed condition of right shoulder
degenerative cuff tear. However, the claim remained denied as appellant had not submitted
sufficient reasoned medical evidence to establish causal relationship between his accepted
employment incident on October 22, 2016 and his diagnosed right shoulder degenerative cuff tear.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation 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. 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
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. There
are two components involved in establishing 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. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.6 This medical opinion must include an accurate
history of the employee’s employment injury and must explain how the condition is related to the
injury. The weight of 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.7

3

Supra note 1.

4

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

5

A.D., id.; T.H., 59 ECAB 388 (2008).

6

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

7

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish degenerative
cuff tear of the right shoulder causally related to the accepted October 22, 2016 employment
incident.
It is undisputed that on October 22, 2016 appellant performed his work duties of
repetitively pulling on mailboxes as well as lifting mail and parcels. However, the Board finds
that he failed to submit sufficient medical evidence to establish that this work incident caused or
aggravated his right shoulder condition.8
In support of his claim, appellant submitted medical evidence from Dr. Fields dated
December 23, 2016 and January 15, 2017. Dr. Fields described appellant’s employment activities
on October 22, 2016 and noted that appellant felt a pull in his shoulder while putting mail in one
of the boxes. He indicated that he first examined appellant on October 27, 2016 due to shoulder
pain and diagnosed completion of a degenerative cuff tear at the supraspinatus tendon as well as
degenerative acromioclavicular joint bursitis. Dr. Fields opined that the completion of a rotator
cuff tear could occur while performing regular daily activities. The Board finds that the opinion
of Dr. Fields is not well rationalized. While Dr. Fields suggested that appellant’s injuries were
caused by the October 22, 2016 employment incident, he failed to provide a sufficient explanation
as to the mechanism of injury pertaining to this traumatic injury claim, namely, how putting mail
into boxes would cause or aggravate appellant’s shoulder condition.9 Dr. Fields noted that
completion of a rotator cuff tear can occur with daily activities. The Board finds this statement to
be vague and generalized without sufficient detail explaining how appellant’s work activities
caused his injury.10 Medical reports without adequate rationale on causal relationship are of
diminished probative value and do not meet an employee’s burden of proof.11 The opinion of a
physician supporting causal relationship must rest on a complete factual and medical background
supported by affirmative evidence, address the specific factual and medical evidence of record,
and provide medical rationale explaining the relationship between the diagnosed condition and the
established incident or factor of employment.12 Without explaining how physiologically the
movements involved in the employment incident caused or contributed to the diagnosed condition,
Dr. Fields’ opinion on causal relationship is equivocal in nature and of limited probative value.13

8

M.E., Docket No. 17-1857 (issued February 2, 2018).

9

S.H., supra note 7; S.W., Docket No. 08-2538 (issued May 21, 2009).

10

Id.

11

S.H., supra note 7; Ceferino L. Gonzales, 32 ECAB 1591 (1981).

12

S.H., id.; Lee R. Haywood, 48 ECAB 145 (1996).

13

S.H., supra note 7; L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued
April 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued
November 16, 2012).

4

Appellant also submitted a December 13, 2016 right shoulder MRI scan. Medical evidence
of diagnostic testing is of limited probative value as it fails to provide a physician’s opinion on
causal relationship between appellant’s work incident and the diagnosed conditions.14
Appellant submitted reports from a nurse practitioner. However, the Board has held that
reports by a nurse practitioner are not considered medical evidence as this care provider is not
considered a physician under FECA.15
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.16 Appellant’s honest belief that the October 22, 2016
employment incident caused his medical conditions, however, sincerely held, does not constitute
the medical evidence to establish causal relationship.17
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 10.607.18
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish degenerative
cuff tear of the right shoulder causally related to the accepted October 22, 2016 employment
incident.

14

See M.S., Docket No. 17-1044 (issued February 2, 2018).

15
See F.M., Docket No. 16-1848 (issued March 16, 2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses and physical therapists are not competent to render a medical opinion
under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law).
16

G.E., Docket No. 17-1719 (issued February 6, 2018); D.D., 57 ECAB 734 (2006).

17

G.E, id.; H.H., Docket No. 16-0897 (issued September 21, 2016).

18

The Board notes that the employing establishment executed a Form CA-16 on November 4, 2016 authorizing
medical treatment. The Board has held that where an employing establishment properly executes a Form CA-16,
which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates a
contractual obligation, which does not involve the employee directly, to pay the cost of the examination or treatment
regardless of the action taken on the claim. Although OWCP denied appellant’s claim for an injury, it did not address
whether she is entitled to reimbursement of medical expenses pursuant to the Form CA-16. See S.H., supra note 7;
I.S., Docket No. 16-1813 (issued March 16, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the February 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 7, 2018
Washington, DC

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

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

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

6


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

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

Docket No. 08-1136
Issued: May 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 1, 2007 regarding 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 established a permanent impairment to a scheduled
member or function of the body causally related to her employment injuries.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated November 30,
2004, the Board affirmed an October 6, 2003 Office decision, denying modification of an

October 23, 2001 decision terminating compensation for wage-loss and medical benefits.1 The
Board found the weight of the medical evidence was represented by the referee orthopedic
surgeon, Dr. Perry Eagle. In addition, the Board affirmed the denial of a recurrence of disability
commencing May 2, 2001. The history of the case is provided in the Board’s prior decision and
is incorporated herein by reference. The record indicates appellant stopped working at the
employing establishment in May 2002 and has worked as an independent courier since
November 2002.
In a report dated April 21, 2005, Dr. Nicholas Diamond, an osteopath, provided a history
and results on examination. He diagnosed repetitive use/aggravation of preexisting cervical
degenerative disc disease and repetitive use/bilateral carpal tunnel syndrome. Dr. Diamond
stated, “The cumulative and repetitive work-related injury was the competent producing factor
for the claimant’s subjective and objective findings of today.” He opined that appellant had 25
percent right upper extremity impairment and a 23 percent left upper extremity impairment.
The Office requested that an Office medical adviser review Dr. Diamond’s report and
provide an opinion as to permanent impairment. In a report dated March 27, 2006, an Office
medical adviser determined that appellant had 10 percent right upper extremity impairment and 4
percent left upper extremity impairment.
In a memorandum dated November 9, 2006, the Office indicated that the Office medical
adviser had not reviewed all the relevant evidence, including the reports from Dr. Eagle, the
referee physician. By report dated November 17, 2006, the Office medical adviser indicated he
had reviewed additional medical evidence. He stated that based on Dr. Eagle’s reports, he would
retract his recommendation for a schedule award. The Office medical adviser stated that he
“would also conclude that the accepted conditions of bilateral carpal tunnel syndrome and
aggravation of cervical degenerative disc disease were not the accepted conditions. Since they
are not the accepted conditions, there could be no schedule award.”
By decision dated March 7, 2007, the Office determined that appellant was not entitled to
a schedule award under 5 U.S.C. § 8107. Appellant requested a hearing before an Office hearing
representative, which was held on July 18, 2007.
In a decision dated October 1, 2007, the hearing representative affirmed the March 7,
2007 decision. He acknowledged that the Office medical adviser’s November 17, 2006 report
was of little probative value, as he improperly concluded that bilateral carpal tunnel syndrome
and aggravation of cervical degenerative disc disease were not accepted conditions. The hearing
representative found that Dr. Diamond did not provide a rationalized medical opinion on causal
relationship between his findings and the employment injuries.

1

Docket No. 04-711 (issued November 30, 2004). The Office accepted that appellant sustained bilateral carpal
tunnel syndrome and aggravation of cervical degenerative disc disease as a result of her federal employment as a
mail processor.

2

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.2 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.3 The
permanent impairment must be causally related to an accepted employment injury.4
ANALYSIS
In this case the Office undertook additional development of the medical evidence with
respect to entitlement to a schedule award. The initial referral to an Office medical adviser did
not include the complete medical record. In his subsequent report dated November 17, 2006, he
concluded that the accepted conditions of bilateral carpal tunnel syndrome and aggravation of
cervical degenerative disc disease were not accepted conditions based on the medical evidence,
and therefore appellant was not entitled to a schedule award. The record establishes that bilateral
carpal tunnel syndrome and aggravation of cervical degenerative disc disease were accepted
conditions and remain accepted conditions as there has been no rescission of acceptance. The
Office had properly terminated compensation for the accepted conditions, but this does not in
itself preclude a claimant from establishing an employment-related permanent impairment.5 The
November 17, 2006 report from the Office medical adviser, as noted by the hearing
representative, is of little probative value.
Since the Office began development of the medical evidence, it has the responsibility to
obtain a report which properly addresses the issues presented in the case.6 It should secure a
medical report with a rationalized medical opinion, based on a complete background, regarding a
permanent impairment causally related to the employment injuries. After such further
development as the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The case will be remanded to the Office for further development of the medical evidence
on the issue of a permanent impairment causally related to the employment injuries.
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

Rosa Whitfield Swain, 38 ECAB 368 (1987).

5

See A.A., 59 ECAB ___ (Docket No. 08-951, issued September 22, 2008).

6

See Richard Williams, 55 ECAB 343 (2004); Mae Z. Hackett, 34 ECAB 1421 (1983).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs’ dated October 1 and March 7, 2007 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: May 20, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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