United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Lake City, FL, Employer
__________________________________________

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)
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)
)
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)
)
)

Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1987
Issued: January 15, 2008

Case Submitted on the Record

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

JURISDICTION
On July 24, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 3, 2007 which denied her traumatic injury
claim. Pursuant to 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 sustained a traumatic injury in the performance of duty on
September 24, 2004.
FACTUAL HISTORY
On September 24, 2004 appellant, then a 47-year-old nursing assistant, filed a traumatic
injury claim alleging that she sustained a contusion and bruised left leg that day when a chair she
was sitting on collapsed.

In an August 29, 2003 note, Dr. John Stevenson found that appellant had neck, right
shoulder and arm pain due to right neural foraminal narrowing at C6-7. In an October 13, 2004
report, a physician’s assistant stated that a fecente fall had exacerbated appellant’s low back pain
with a new component of left leg pain. An October 16, 2004 magnetic resonance imaging scan
by Dr. M.A. Baker, a radiologist, found minimal degenerative disc changes at L5-S1 and
otherwise a negative examination of the lumbar spine. In a December 1, 2004 report, his
assistant noted that appellant’s pain was unrelenting since her fall at work on
September 24, 2004. Dr. Baker described discogenic back pain due to degenerative disc disease
at L5-S1. In a December 8, 2004 history and physical report, Dr. Stevenson diagnosed
discogenic back pain due to degenerative disc disease and noted appellant’s history of injury, as
follows:
“[Appellant] noted that she has been [experiencing] increasing low back pain over
the last several months. She had a history of both back and neck pain in the past
which were doing relatively well until recently while at work. [Appellant]
noticed an increase in her low back pain with radiation into her left calf. At work,
a chair that she was sitting in apparently collapsed and it was shortly after this
incident she developed an increase in her low back pain as well as pain down into
her left calf region.”
Appellant underwent a posterior lumbar interbody fusion at L5-S1 on December 9, 2004.
Work status update reports dated October 1, 2004 through September 14, 2005 were received.
Appellant filed a claim for compensation for the period December 15, 2004 through
January 8, 2005.1
On February 15, 2005 the Office denied appellant’s claim finding that the medical
evidence was not sufficient to establish an injury.
On February 18, 2005 appellant requested an oral hearing. The hearing was held on
August 17, 2006. In an August 26, 2005 letter, Dr. Stevenson stated that appellant’s need for
surgery on December 9, 2004 and was directly related to her September 24, 2004 accident and
that it was necessary for her to have a sedentary job. In a July 12, 2006 letter, Dr. Stevenson
stated that appellant underwent surgery on December 9, 2004 and that her need for surgery was
directly related to her work-related accident on September 24, 2004.
By decision dated November 3, 2006, the Office accepted that the September 24, 2004
incident occurred. It found that Dr. Stevenson’s opinion was insufficient to establish that
appellant sustained a low back condition necessitating surgery causally related to the
September 24, 2004 work incident.
In a March 14, 2007 letter, Dr. Stevenson opined that appellant’s work incident was a
material aggravation of her preexisting degenerative changes of the spine. He opined that
appellant did not have any pain or symptoms prior to the September 24, 2004 incident, but that
her preexisting condition made her more prone to injury and the need for surgery.
1

The issue of disability for this time period was not adjudicated by the Office. Therefore, the Board does not
have jurisdiction to address this alleged period of disability. See 20 C.F.R. § 501.2(c).

2

On July 3, 2007 the Office denied modification of the November 3, 2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury.6 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.7
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
The Board notes, as set forth above, that the record contains medical evidence indicating
that there is a causal relationship between appellant’s employment incident and her lower back
condition of degenerative disc disease at L5-S1. Dr. Stevenson’s letters consistently opine that
appellant’s current back condition and need for surgery was directly related to her work incident.
In the March 14, 2007 letter, Dr. Stevenson clarified that the work incident was a material
aggravation of appellant’s preexisting degenerative back condition. He explained that, although
2

5 U.S.C. §§ 8101-8193

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB345 (1989).

5

Elaine Pendleton, supra note 3.

6

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

7

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, supra note 4.
Additionally, in order to be considered rationalized the opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and the claimant’s specific employment factors. Id.

3

appellant had a preexisting condition, the condition was asymptomatic prior to
September 24, 2004. He further explained that the preexisting condition did make appellant
more prone to injury; therefore, her fall from her chair at work did aggravate the underlying
condition such that surgery was required.
The Board finds that the report from Dr. Stevenson regarding the causal relationship
between appellant’s back condition and the September 24, 2004 incident, while not fully
rationalized, is sufficient to require further development of the case record by the Office.8
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested arbiter.
While the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.9 Additionally, the
Board notes that in this case the record contains no medical opinion contrary to appellant’s
position. It will remand the case for further development of the medical evidence.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty on September 24, 2004.

8

See Felix Flescha, 52 ECAB 268 (2001); John J. Carlone, supra note 6; Horace Langhorne, 29 ECAB
820 (1978).
9

Claudio Vazquez, 52 ECAB 496 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2007 decision of the Office of
Workers’ Compensation Programs are set aside and remanded for further development
consistent with this decision.
Issued: January 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Albany, NY, Employer
)
___________________________________________ )
C.C., Appellant

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

Docket No. 10-1843
Issued: April 11, 2011

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from a May 26, 2010 decision of the
Office of Workers’ Compensation Programs that denied modification of a January 25, 2010
decision. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury causally related to factors of her federal employment.
FACTUAL HISTORY
On December 2, 2009 appellant, then a 53-year-old postmaster, filed an occupational
disease claim alleging that she sustained a left arm and shoulder condition in the performance of
duty. She noted that there was increased mail volume which resulted in greater lifting and
1

5 U.S.C. § 8101 et seq.

sorting. Appellant first became aware of the injury and its relation to her work on
January 1, 2003. She noted having a prior left shoulder injury and surgery in 2004.
In a December 1, 2009 report, Dr. George Knapp, a Board-certified surgeon, diagnosed a
left shoulder sprain. In a December 4, 2009 report, he provided restrictions for work that
included intermittent grasping for no more than a half hour a day and no pulling, pushing or
reaching above the shoulder.
By letter dated December 17, 2009, the Office advised appellant that additional factual
and medical evidence was needed.2
On January 12, 2010 the Office received an undated letter from appellant describing her
duties. Appellant referred to a surgery in 2004 on her left shoulder. She alleged that the work
force had been reduced over the past few years and her workload had increased, especially
sorting, lifting and break down times for delivery. Appellant’s elbow burned and her entire arm
ached. She noted that she also filled out a recurrence of disability claim form. Appellant related
that she had the same pain as before, just more severe. Her pain was aggravated by over sorting
and repetitive lifting.
In a January 13, 2010 treatment note, Dr. Knapp advised that appellant could return to
work with no lifting over five pounds or sorting for a six-week period.
By decision dated January 25, 2010, the Office denied appellant’s claim. It found that the
medical evidence did not establish that her left shoulder condition was related to the established
work-related events.
The Office subsequently received a January 13, 2010 report from Dr. George Silver, a
Board-certified orthopedic surgeon, who noted that appellant presented with complaints of left
arm pain, intermittent discomfort in the shoulder, with significant pain in the left elbow in
November. Dr. Silver related that appellant was “doing a lot of lifting at work and sorting and it
was then that she noticed her pain worsening and beginning in her elbow.” He diagnosed left
elbow lateral epicondylitis with mild ulnar neuritis. Dr. Silver did not believe that her condition
was related to her prior shoulder problems and was a new claim. In a February 24, 2010 note, he
advised that appellant had pain with lifting at work and should remain on light duty with no
lifting, pushing or pulling over five pounds for four weeks.
On March 2, 2010 appellant requested reconsideration. She indicated that her elbow felt
better but remained tender and ached after exercise. Appellant currently worked five to six hours
daily and used sick leave for the time that she missed.
In a March 9, 2010 report, Dr. Silver related that in November 2009 appellant started to
have pain after lifting at work and sorting. He treated appellant for left elbow tendinitis and
provided light-duty restrictions. The Office also received physical therapy treatment records.

2

The Office advised appellant that it appeared that she was filing a claim for a new injury. It advised her that, if
she believed her claim was a recurrence, she should file for a recurrence under her prior claim.

2

In a letter dated March 12, 2010, the Office requested that Dr. Silver further explain how
appellant’s condition was related to her employment. In a March 18, 2010 letter, Dr. Silver’s
billing assistant noted that the Office should refer to Dr. Silver’s January 13, 2010 report.
By decision dated May 26, 2010, the Office denied modification of its January 25, 2010
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
ANALYSIS
The evidence establishes that appellant has a left arm and elbow condition. The Office
accepted that she performed activities such as lifting and sorting mail at work. The Board finds
that appellant submitted insufficient medical evidence to establish that her left shoulder or elbow

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Id.

3

condition was caused or aggravated by these activities or any other specific factors of her federal
employment.
On January 13, 2010 Dr. Silver related that appellant was “doing a lot of lifting at work
and sorting and it was then that she noticed her pain worsening and beginning in her elbow.” He
diagnosed left elbow lateral epicondylitis with mild ulnar neuritis. Dr. Silver did not believe that
appellant’s condition was related to her prior left shoulder problem and was a new claim. The
Board finds that he did not adequately explain how particular employment factors caused or
aggravated her diagnosed conditions. As noted, the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. The Office contacted Dr. Silver and
requested a supplemental opinion to address how appellant’s condition was related to his
employment, but Dr. Silver did not respond. An Office assistant stated that Dr. Silver explained
how appellant’s condition was caused in his January 13, 2010 report. Dr. Silver submitted other
treatment records, some of which referenced appellant’s assertions that her pain increased with
lifting and sorting at work, but none of these later reports explain the reasons why particular
work duties caused or aggravated a diagnosed medical condition. Therefore, the reports from
Dr. Silver are insufficient to establish appellant’s claim.
Dr. Knapp diagnosed left shoulder sprain and set forth work restrictions. The Board
notes that these reports do not specifically address whether any factors of appellant’s
employment caused her diagnosed condition.6 Consequently, the Board finds that this medical
evidence is insufficient to establish appellant’s claim.
Additionally, the record contains physical therapy reports. Section 8101(2) of the Act7
provides that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by the applicable state law. Health care providers such as physical therapists are not
physicians under the Act. Thus, a physical therapist is not competent to give a medical opinion.8
Likewise, the letter from Dr. Silver’s assistant cannot be considered competent medical
evidence.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.9
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to

6

K.W., 59 ECAB 271 (2007) (medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
7

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that
a medical opinion, in general, can only be given by a qualified physician).
8

See Bertha L. Arnold, 38 ECAB 282 (1986).

9

See Joe T. Williams, 44 ECAB 518, 521 (1993).

4

establish causal relationship.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
There is no reasoned medical evidence of record explaining how appellant’s employment
duties of lifting or sorting caused or aggravated her left shoulder or elbow. She has not met her
burden of proof to establish that she sustained a medical condition in the performance of duty
causally related to factors of her employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left upper
extremity condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 26 and January 25, 2010 are affirmed.
Issued: April 11, 2011
Washington, DC

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

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

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

10

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Emeryville, CA, Employer
_________________________________________

)
)
)
)
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)

Appearances:
Denise Eaton-May, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 18-1058 & 18-1224
Issued: November 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 1, 2018 appellant, through counsel, filed a timely appeal from a November 2, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). On May 24, 2018
appellant, through counsel, filed a timely appeal from a December 4, 2017 OWCP merit decision.
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
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.

3
The Board notes that, following the issuance of the December 4, 2017 merit decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish total
disability commencing October 25, 2014 causally related to her accepted September 3, 2014
employment injury; and (2) whether OWCP has met its burden of proof to rescind its acceptance
of appellant’s claim for aggravation of right shoulder joint instability.
FACTUAL HISTORY
On September 12, 2014 appellant, then a 22-year-old postal support employee window
clerk, filed a traumatic injury claim (Form CA-1) alleging that on September 3, 2014 she
developed ligament damage in her right arm as a result of lifting and throwing parcels of mail
throughout the week while in the performance of duty. She claimed that at the end of the day, on
the date of injury, she felt her arm pop out of her shoulder. On the reverse side of the claim form
and by letter dated September 25, 2014, appellant’s immediate supervisor controverted her claim
contending that she had not timely reported her alleged injury and that her injury was due to both
a nonwork-related 2013 motor vehicle accident and a nonwork-related bilateral shoulder personal
injury sustained on August 7, 2014.
He indicated that appellant stopped work on
September 4, 2014.
In support of her claim, appellant submitted medical evidence, including work status
reports dated August 7 and September 8, 2014 from Dr. John F. Cummins, a Board-certified
orthopedic surgeon. Dr. Cummins placed her off work from August 7 through 21, and
September 8 through 26, 2014. He noted that appellant had bilateral shoulder injuries and that she
was unable to perform any work involving the use of her upper extremity.
In a September 25, 2014 report, Dr. Lan Thi Linh Nguyen, an internist, noted that appellant
sustained an injury on September 3, 2014 while lifting boxes. He examined her, diagnosed
instability of the right shoulder joint, and indicated that she sustained a right shoulder subluxation
in August 2014 during a physical altercation. Dr. Nguyen related that, during her initial visit,
appellant had not fully explained that her right shoulder had subluxed, but he indicated that it was
reported in a September 4, 2014 note. He released her to modified-duty work as of the date of his
examination.
OWCP also received a September 25, 2014 report from Keith M. Thibault, a nurse
practitioner, who diagnosed instability of the right shoulder joint and placed appellant on modified
activity at work and home through October 21, 2014.
In a letter dated September 30, 2014, appellant’s supervisor continued to challenge her
claim. He asserted that appellant had not reported to him that she sustained an injury at work, or
the time or location of the injury. Appellant had previously mentioned that she had a pin inserted
into her shoulder/arm area and he believed that this was why she had pain in that area.
In a development letter dated October 1, 2014, 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.
OWCP received additional medical evidence. The reports provided a diagnosis of
preexisting instability of the right shoulder joint, a request for authorization for right shoulder
2

surgery to be performed on November 23, 2014, and opined that her diagnosed condition was a
nonindustrial condition that had been aggravated by her employment activities. Appellant was
permitted to perform modified-duty work with restrictions from October 31 through
November 27, 2014.
In a September 16, 2014 letter, a customer service employing establishment manager
further challenged appellant’s claim for compensation, contending that her claimed injury was
caused by an April 17, 2013 nonwork-related car accident. He noted that appellant was off work
for intermittent periods due to nonwork-related conditions until September 8, 2014 when she
stopped work. The manager further contended that the September 3, 2014 alleged work incident
did not occur as alleged, as clocking records showed that she was not lifting and throwing parcels,
but was working at the finance window all day for eight hours on that day.
On October 21, 2014 appellant responded to OWCP’s development questionnaire. She
described the work duties she performed upon her return to work from maternity leave that she
believed contributed to her claimed injury. Appellant noted her prior nonwork-related injuries
which included a left shoulder injury on March 16, 2013 as a result of a motor vehicle accident for
which she underwent surgery on April 23, 2013. She also sustained another left shoulder injury
on August 4, 2014 due to an altercation.
In a report dated September 4, 2014, Dr. Tyronda S. Elliott, a resident physician, noted a
history that on September 3, 2014 appellant experienced shoulder problems. She examined
appellant and diagnosed right shoulder joint pain.
In a treating physician’s progress report dated October 31, 2014, Dr. Nguyen reiterated his
prior diagnosis of instability of the right shoulder joint and appellant’s history of a right shoulder
subluxation that occurred in August 2014 during a physical altercation. He opined that the
diagnosed right shoulder condition was a nonindustrial condition and placed appellant on modified
activity at work and home through November 27, 2014. Dr. Nguyen maintained that, but for her
work duties as a window clerk, her preexisting condition would not have become disabling or
needed the requested surgical treatment. He also noted that, although modified duties had been
recommended, appellant reported that she was not working because the employing establishment
was unable to accommodate her work restrictions. Dr. Nguyen advised that if modiﬁed activity
was not accommodated by the employing establishment, then she was considered temporarily
totally disabled from her regular work for the designated time.
On November 7, 2014 OWCP accepted appellant’s claim for aggravation of right shoulder
joint instability.
On November 18, 2014 appellant filed a Form CA-7 claim for compensation for leave
without pay (LWOP) for the period October 25 to November 14, 2014.
On November 28, 2014 appellant filed an additional CA-7 form for LWOP for the period
November 15 to 28, 2014.
In a development letter dated December 9, 2014, OWCP requested additional medical
evidence establishing appellant’s disability from work during the period claimed. Appellant was
advised to submit a report from her physician which explained why she had not returned to work
even with clear work restrictions and how this was medically necessary and connected to her
September 3, 2014 work-related injury. OWCP related that if, however, the only reason she did
3

not return to work was due to her employing establishment’s inability to accommodate her work
restrictions then the employing establishment should submit written confirmation detailing the
exact period that was not accommodated. OWCP afforded appellant 30 days to respond.
Additional medical evidence was received from Dr. Nguyen. In a report dated
December 12, 2014, Dr. Nguyen continued to diagnose instability of right shoulder joint and to
advise that appellant was capable of performing modified activity at work and home through
January 7, 2015. He also continued to note appellant’s history of a right shoulder dislocation due
to the August 2014 altercation and left shoulder joint instability for which she was status post 2013
dislocation surgery. Dr. Nguyen opined that her current medical condition, more likely than not,
was not caused or aggravated by factors of her employment. He related that his opinion was based
on appellant’s underlying and preexisting medical condition, shoulder joint instability, and
mechanism of injury, lifting 10-pound boxes.
Dr. Cummins, in a postoperative follow-up report dated December 1, 2014, noted
examination findings and provided an assessment of shoulder trauma/instability.
Appellant continued to file Form CA-7 claims for compensation for LWOP for the period
November 29, 2014 to January 16, 2015 and submitted additional medical evidence from
Dr. Cummins and Dr. Nguyen. In a work status report dated November 13, 2014, Dr. Cummins
placed appellant on modified activities at home and work from November 22 through 24, 2014.
He advised that she could return to full-capacity work on November 25, 2014.
In a work status report dated October 2, 2014, Dr. Nguyen placed appellant on modified
activity at work and home from October 21 through November 21, 2014. He again advised that if
modiﬁed activity was not accommodated by the employing establishment then appellant was
temporarily totally disabled from her regular work for the designated time and a separate off work
order was not required.
Dr. Michael E. Hebrard, a Board-certified physiatrist, noted in a January 6, 2015 report
appellant’s repetitive work duties and history of the accepted September 3, 2014 employment
injury, also noting that she last worked on September 3, 2014. He diagnosed adhesive capsulitis,
bicipital tenosynovitis, internal derangement, and history of instability of the right shoulder.
Dr. Hebrard opined that appellant’s work-related injury contributed to her disabling condition and
resultant surgery. He further opined that she was totally disabled since she was unable to perform
her repetitive work duties.
OWCP, by decision dated January 26, 2015, denied appellant’s claims for compensation
for LWOP commencing October 25, 2014. It found that she had not submitted sufficient medical
evidence to establish that she was totally disabled from work, during the period claimed, causally
related to her September 3, 2014 employment injury.
On February 6, 2015 appellant filed an additional Form CA-7 claim for LWOP
compensation from January 17 to February 11, 2015. In support of her claim, she submitted a
letter dated January 6, 2015 in which Dr. Hebrard confirmed that she was temporarily totally
disabled. Dr. Hebrard advised that appellant was unable to perform her regular job and placed her
off work through February 11, 2015.
On February 25, 2015 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative regarding the January 26, 2015 decision.
4

Appellant continued to file Form CA-7 claims for LWOP compensation from March 7 to
May 29, 2015.
OWCP received additional medical evidence dated February 11 to September 14, 2015
from Dr. Hebrard who continued to treat appellant. Dr. Hebrard agreed with the diagnostic
findings of a February 7, 2015 right shoulder magnetic resonance imaging (MRI) scan which
demonstrated signiﬁcant glenohumeral capsulitis and a modest rotator cuff tendinitis or strain. He
noted that she also had an enthesopathic cyst at the infraspinatus and subscapularis attachment.
Dr. Hebrard diagnosed subluxation, frozen shoulder, adhesive capsulitis, rotator cuff
syndrome/bursitis, and derangement of the right shoulder, as well as rotator cuff syndrome and
bursitis of the left shoulder. He opined that appellant’s September 3, 2014 employment injury
caused the diagnosed conditions, an aggravation of her underlying preexisting condition, and
resultant right shoulder surgery. Dr. Hebrard placed her off work through April 13, 2015 and on
May 26, 2015 released her to modified work with restrictions, five hours a day until her next clinic
visit. He reiterated that if these restrictions could not be accommodated by her employing
establishment, then she was temporarily totally disabled. Dr. Hebrard subsequently found that
appellant was temporarily totally disabled and placed her off work from June 19 through 22, 2015.
He noted that she could work four hours a day upon her return to work with her previous
restrictions on June 22, 2015. Dr. Hebrard later determined on August 17, 2015 that appellant was
again temporarily totally disabled until her next appointment or diagnostic testing.
Dr. Cummins, in a work status report dated November 13, 2014, placed appellant off work
from November 24 through December 16, 2014 and advised that she could perform modified
activity at home and work from December 17, 2014 through March 24, 2015. He determined that
she could return to full-duty work on March 25, 2015.
By decision dated October 27, 2015, an OWCP hearing representative set aside the
January 26, 2015 decision and remanded the case to OWCP for further development of the medical
evidence. He found that while Dr. Hebrard’s reports were not adequately rationalized, they were
sufficient to warrant further development of the issue of whether appellant’s total disability
commencing October 25, 2014 and her resultant November 2014 right shoulder surgery were due
to her accepted September 3, 2014 employment injury. The hearing representative remanded the
case for OWCP to refer appellant for a second opinion examination.
On November 27, 2015 OWCP referred appellant, together with a statement of accepted
facts (SOAF), the medical record, and a set of questions, to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion examination. In a January 4, 2016 report,
Dr. Swartz reviewed the SOAF and medical record, and noted a history of the September 3, 2014
employment injury. He also noted that appellant denied having prior problems with her right
shoulder, but had problems with her left shoulder. Dr. Swartz reported examination findings. He
advised that appellant had preexisting cystic degeneration at the humeral head of the cuff insertion
of the right shoulder. Dr. Swartz noted, however, that this did not appear to be a finding that
rendered her susceptible to instability or a dislocation. He referenced appellant’s medical records,
including Dr. Cummins’ November 25, 2014 operative report, which indicated that appellant had
a Bankart lesion in the anterior capsular labral structures, a preexisting condition, that rendered
her susceptible to dislocation. Dr. Swartz also noted Mr. Thibault’s September 25, 2014 report
and Dr. Elliott’s September 4, 2014 report, which documented that her right shoulder subluxed
during a physical altercation which occurred two weeks prior to her accepted September 3, 2014
employment injury. He advised that appellant’s right shoulder instability was a nonindustrial or
5

preexisting condition related to the physical altercation that took place two weeks prior to her
September 3, 2014 date of injury and resulted in right shoulder subluxation as documented in her
medical records. Despite his opinion on causal relationship, Dr. Swartz noted that it would be
helpful to review appellant’s medical records dating 5 to 10 years prior to her September 3, 2014
date of injury as she had a history of right and left shoulder dislocations. He advised that, based
on the medical information available at that time, the temporary aggravation of appellant’s current
right shoulder instability ceased on that day. Dr. Swartz related that the temporary aggravation
involved work-related disability and treatment such as, surgery to correct the instability. He
indicated that appellant’s November 2014 right shoulder surgery was appropriate treatment for her
September 3, 2014 employment injury.
In a letter dated February 23, 2016, OWCP requested that appellant submit medical records
from 5 to 10 years prior to the filing of her claim. On May 22, 2017 it received numerous medical
records.
In a letter dated July 10, 2017, OWCP referred appellant for a second examination with
Dr. Swartz. It provided Dr. Swartz with an updated SOAF, the medical record, and a series of
questions.
On October 18, 2017 Dr. Swartz reviewed the medical evidence of record. He did not
examine appellant. Dr. Swartz referenced his prior findings from the January 4, 2016 examination
and his diagnosis of right shoulder adhesive capsulitis. He noted that appellant’s nonindustrial
preexisting condition of instability and dislocation of the right shoulder, resulting in shoulder
surgery, were due to the nonindustrial injury of August 5, 2014, and were unrelated to the claim
of injury on September 3, 2014. Dr. Swartz further noted that all treatment received subsequent
to September 3, 2014 was unrelated to her claim for an industrial injury and employment at the
employing establishment, and would be related only to the August 5, 2014 assault which caused a
dislocated right shoulder. He indicated that appellant’s right shoulder conditions included cystic
degeneration of the humeral head at the cuff insertion and a Bankart lesion of the anterior capsular
labral structures. Dr. Swartz related that these conditions reflected changes in the right shoulder
that destabilized the shoulder and rendered appellant susceptible to dislocation, which occurred on
August 5, 2014. He advised that she did not sustain a dislocated right shoulder on
September 3, 2014. Dr. Swartz further advised that the findings of Dr. Cummins’ November 2014
surgery were unrelated to the claim of injury on September 3, 2014 and related only to the
nonindustrial assault injury of August 5, 2014. He maintained that all of appellant’s diagnosed
conditions were related to the nonindustrial August 5, 2014 assault. In addition, Dr. Swartz
maintained that there was no disability caused by the August 5, 2014 injury as appellant reported
that she “self-reduced” her shoulder and apparently went back to work fairly soon after this
incident and performed her regular job on September 3, 2014. He related that her time off work
and the treatment she received after September 3, 2014, including the November 2014 right
shoulder surgery, were not due to an injury on that day, but due to the August 5, 2014 incident.
Dr. Swartz concluded that no medical treatment was necessary for the claimed September 3, 2014
employment injury. There was also no physical limitations, restrictions, or disability related to the
claimed injury.
OWCP, by decision dated November 2, 2017, again denied appellant’s claim for
compensation for LWOP commencing October 25, 2014 and authorization for her November 25,
2014 right shoulder surgery. It found that Dr. Swartz’s October 18, 2017 report represented the

6

weight of the medical evidence and established that she was not disabled during the claimed period
as a result of her accepted September 3, 2014 employment injury.
In a November 3, 2017 notice, OWCP advised appellant that it proposed to rescind its
acceptance of her claim for aggravation of right shoulder joint instability based on its error. It
found that the factual evidence of record failed to establish that the employment injury occurred
as alleged, noting that she was injured while off duty on August 5, 2014. Further, OWCP noted
that Dr. Swartz’s opinion was well rationalized and established that appellant’s right shoulder
instability and dislocation were caused by the nonwork-related August 5, 2014 incident. It
afforded her 30 days to submit evidence and argument challenging the proposed rescission action.
Appellant, through counsel, responded by letter dated December 2, 2017 disagreeing with
the proposed rescission of the acceptance of appellant’s claim.
By decision dated December 4, 2017, OWCP rescinded acceptance of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5
Under FECA, the term disability means “the incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of injury.”6 The question of whether an
employee is disabled from work is an issue that must be resolved by competent medical evidence.7
The employee is responsible for providing sufficient medical evidence to justify payment of any
compensation sought.8
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.9 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.10

4

Supra note 3.

5
See C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton,
40 ECAB 1143 (1989).
6

20 C.F.R. § 10.5(f).

7

S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

8

Id.; see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

9

See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
10

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

7

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish total disability,
commencing October 25, 2014, causally related to her accepted September 3, 2014 employment
injury.
In support of her claim for total disability commencing October 25, 2014, appellant
submitted several medical reports from Dr. Cummins. In his reports, Dr. Cummins provided an
assessment of right shoulder trauma/instability. He opined that appellant was totally disabled from
work during the periods August 7 to 21 and September 8 to 26, 2014. However, these reports are
of limited probative value in addressing appellant’s claimed period of disability commencing
October 25, 2014 as they occur prior to the alleged period and do not specifically address or
attribute the period of claimed disability to the accepted condition.11 Evidence that does not
address appellant’s accepted conditions and dates of disability is insufficient to establish her
claim.12 Moreover, while Dr. Cummins subsequently opined that appellant was totally disabled
from work from November 24 to December 16, 2014, he did not explain with sufficient rationale
as to how her inability to work was due to her accepted September 3, 2014 right shoulder injury,
his opinion is of limited probative value and thus his report is insufficient to establish the claimed
period of disability.13
Dr. Nguyen’s October 31 and December 12, 2014 reports did not relate appellant’s partial
disability from work during the period October 31 through November 27, 2014 and December 12,
2014 through January 7, 2015 or her diagnosis of right shoulder joint instability to her
September 3, 2014 employment-related right shoulder injury.14 He noted that it was more likely
than not that her diagnosed right shoulder condition was not caused or aggravated by factors of
her employment. The Board finds that Dr. Nguyen’s reports are therefore not based on a complete
and accurate factual background and are of diminished probative value.15 Moreover, his remaining
September 25, 2014 report is insufficient to establish disability as it predates and does not address
the claimed period of disability.16 Likewise, Dr. Elliott’s September 4, 2014 report predates the
claimed period of disability.17
Second opinion physician Dr. Swartz, in his January 4, 2016 and October 18, 2017 reports,
maintained that there was no disability caused by the August 5, 2014 injury as appellant reported
that she apparently went back to work fairly soon after this incident and performed her regular job
on September 3, 2014. He related that her time off work and the treatment she received after
September 3, 2014, including the November 2014 right shoulder surgery, were not due to an injury
on that day, but due to the August 5, 2014 incident. Dr. Swartz concluded that no medical
11

D.J., Docket No. 18-0200 (issued August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).

12

T.L., supra note 10.

13

T.H., Docket No. 19-0436 (issued August 13, 2019); C.B., Docket No. 18-0040 (issued May 7, 2019).

14

Id.

15

S.M., Docket No. 16-1142 (issued March 15, 2017); J.C., Docket No. 07-1246 (issued December 13, 2007).

16

Supra note 11.

17

Id.

8

treatment was necessary for the claimed September 3, 2014 employment injury. There was also
no physical limitations, restrictions, or disability related to the claimed injury. As Dr. Swartz
reviewed the medical record and supported his conclusion with medical rationale, the Board finds
that his report represents the weight of the evidence regarding appellant’s claim for total disability.
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period commencing October 25, 2014 due to her accepted right shoulder
condition, the Board finds that appellant 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 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
OWCP may reopen a claim at any time on its own motion and may modify, rescind,
decrease, or increase compensation previously awarded, or award compensation previously
denied.18 Once OWCP accepts a claim, it has the burden of justifying termination or modification
of benefits.19 This burden applies even where OWCP later decides that it erroneously accepted a
claim.20 OWCP must provide a clear rationale for rescinding acceptance of a claim.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to rescind its acceptance of
appellant’s claim for aggravation of right shoulder joint instability.
Second opinion physician Dr. Swartz provided rationalized medical evidence establishing
that appellant did not sustain an aggravation of right shoulder joint instability on
September 3, 2014. In his January 4, 2016 and October 18, 2017 second opinion reports, he found
that appellant’s right shoulder instability and dislocation, and resultant November 25, 2014 surgery
were causally related to her August 5, 2014 nonwork-related domestic violence incident.
Dr. Swartz reviewed the medical record, including numerous medical records which documented
the August 5, 2014 incident. He explained that appellant had cystic degeneration of the humeral
head at the cuff insertion and a Bankart lesion of the anterior capsular labral structures of the right
shoulder, which demonstrated changes that destabilized the shoulder and rendered her susceptible
to dislocation, which occurred on August 5, 2014.22 Accordingly, OWCP’s initial acceptance of
appellant’s claim was in error.
On appeal counsel contends that OWCP’s December 4, 2017 decision erroneously
rescinded acceptance of appellant’s claim as it lacks sufficient legal basis, citing the Board’s
18

20 C.F.R. § 10.610; 5 U.S.C. § 8128(a).

19

See M.B., Docket No. 17-0688 (issued March 15, 2018); Delphia Y. Jackson, 55 ECAB 373, 376 (2004).

20

Id.

21

Id.

22

J.F., Docket No. 17-0288 (issued May 23, 2017).

9

holding in the case of Roseanna Brennan.23 In that case, the Board found that OWCP improperly
rescinded acceptance of appellant’s recurrence of disability because it had not identified new
evidence, legal arguments, or rationale to justify its rescission of appellant’s recurrence of
disability on the basis that the acceptance was erroneous. In the instant case, however, OWCP
presented new evidence, by way of the voluminous Kaiser Permanente medical records and
Dr. Swartz’s October 18, 2017 report, regarding appellant’s claimed September 3, 2014 right
shoulder injury as to cast serious doubt upon the validity of the claim. In its December 4, 2017
decision, it explained how this new evidence established that appellant had not sustained a right
shoulder injury at work on September 3, 2014. OWCP presented sufficient new evidence and
argument to justify the rescission of its acceptance of appellant’s claim for aggravation of right
shoulder joint instability.
Counsel further contends on appeal that Dr. Swartz’s opinion is not entitled to the weight
of the medical evidence as it is inadequate under the law. However, Dr. Swartz reviewed the
medical record and supported his conclusion with medical rationale. Thus, the Board finds that
his report represents the weight of the evidence with regard to the rescission of the accepted claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability,
commencing October 25, 2014, causally related to her accepted September 3, 2014 employment
injury. The Board further finds that OWCP has met its burden of proof to rescind its acceptance
of appellant’s claim for aggravation of right shoulder joint instability.

23

41 ECAB 92 (1989).

10

ORDER
IT IS HEREBY ORDERED THAT the December 4 and November 2, 2017 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 21, 2019
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREARU OF INVESTIGATIONS,
Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)

Docket No. 17-1096
Issued: September 6, 2017

Case Submitted on the Record

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

On April 24, 2017 appellant filed a timely application for review from a November 29,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration. The Board docketed the appeal as No. 17-1096.
On June 2, 2014 appellant, then a 49-year-old special agent, filed an occupational disease
claim (Form CA-2) alleging that he developed chronic lymphocytic leukemia (CLL) as a result
of being enveloped in a cloud of toxic dust as he hid in an archway of a building following the
collapse of the South Tower of the World Trade Center in New York City, New York, due to a
terrorist attack on September 11, 2001. In a May 29, 2015 merit decision, OWCP denied his
claim, finding that the medical evidence of record was insufficient to establish a causal
relationship between appellant’s medical condition and the accepted factors of his federal
employment. In an appeal request form received on May 17, 2016, appellant requested
reconsideration. He did not submit any additional evidence. In a nonmerit decision dated
June 22, 2016, OWCP denied appellant’s request for reconsideration, finding that it neither
raised substantive legal questions nor included new and relevant evidence. In a letter received on
September 22, 2016, appellant requested reconsideration and submitted a September 14, 2006
medical report from Dr. Bruce A. Cohen, an employing establishment medical officer
specializing in occupational medicine and family practice. In this report, Dr. Cohen found that

appellant had CLL due to the accepted employment factors. In a November 29, 2016 nonmerit
decision, OWCP denied appellant’s request for reconsideration, finding that it was untimely filed
and failed to demonstrate clear evidence of error.
The Board has duly considered the matter and finds that this case is not in posture for
decision. Section 8124(a) of the Federal Employees’ Compensation Act provides that OWCP
shall determine and make a finding of fact and make an award for or against payment of
compensation.1 Its regulations also provide that the decision shall contain findings of fact and a
statement of reasons.2 The reasoning behind OWCP’s evaluation should be clear enough for the
reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.3
In its November 29, 2016 decision, OWCP did not discharge its responsibility to provide
appellant a statement explaining the disposition so that appellant could understand the basis for
the decision as well as the precise defect and the evidence needed to overcome the denial of his
claim. The Board notes that OWCP denied appellant’s September 22, 2016 request for
reconsideration because it was untimely filed, but failed to provide any discussion of the
evidence he submitted in support of his reconsideration request and failed to explain how the
evidence of record failed to demonstrate clear evidence of error.
Accordingly, the case must be returned to OWCP for a proper decision which includes
findings of fact and a clear and precise statement regarding appellant’s request for
reconsideration on the denial of his occupational disease claim or why he is not entitled to further
reconsideration. Following this and such further development as OWCP deems necessary, it
shall issue an appropriate decision.

1

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

2

20 C.F.R. § 10.126; see also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L., Docket
No. 09-0956 (issued April 15, 2010).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(b) (October 2011) (if
the evidence submitted is not sufficient to require a merit review, OWCP should issue a decision which discusses the
evidence submitted, or lack thereof, and explicitly state the basis for the finding of insufficiency). See also
Robert M. Pace, 46 ECAB 551 (1995) (in determining whether clear evidence of error is shown, a brief evaluation
of the evidence should be included in the decision so that any subsequent reviewer will be able to address the issue
of discretion).

2

IT IS HEREBY ORDERED THAT the November 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: September 6, 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

3


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

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

Docket No. 07-1230
Issued: November 13, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed a timely appeal from the merit decisions of the Office of
Workers’ Compensation Programs dated April 5 and August 25, 2006 and March 21, 2007 which
denied modification of an August 8, 2000 wage-earning capacity determination. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that modification of
the wage-earning capacity decision was warranted.
FACTUAL HISTORY
On July 23, 1998 appellant, then a 37-year-old letter carrier, filed an occupational disease
claim alleging that his left knee condition was causally related to factors of his federal
employment. The Office accepted the claim for left knee strain and left knee meniscal tear.
Appellant underwent left knee surgery on October 30, 1998. The Office paid appropriate

compensation. In November 1998, appellant returned to limited duty as a modified city carrier
technician. In June 2000, the employing establishment made appellant’s limited-duty position
permanent.
In an August 8, 2000 decision, the Office found that appellant’s actual earnings as a
modified city carrier technician fairly and reasonably represented his wage-earning capacity. It
found that appellant had no loss of wage-earning capacity based on his actual earnings in the
modified position. On May 19, 2003 the Office awarded appellant a schedule award for seven
percent permanent impairment of his left leg.
On November 27, 2004 appellant voluntarily transferred from his job in Michigan to a
part-time flexible (PTF) postal position in Puerto Rico. The PTF position did not guarantee more
than four hours of work per pay period and was based on the work available in the office.
Appellant subsequently claimed wage-loss compensation beginning January 6, 2005 as he was
not being provided full-time employment in his PTF position in Puerto Rico. On November 2,
2005 he filed a recurrence of disability claim beginning January 6, 2005.
By decision dated December 1, 2005, the Office denied appellant’s claim for a recurrence
of disability as the evidence of record failed to establish that his wage-loss commencing
January 6, 2005 was due to his work-related injury.
On December 7, 2005 appellant disagreed with the Office’s December 1, 2005 decision
and requested an oral hearing by way of a teleconference.
By decision dated February 15, 2006, an Office hearing representative set aside the
December 1, 2005 decision. The Office hearing representative found that the proper issue in the
case was whether there was a basis for modifying the August 8, 2000 wage-earning capacity
determination. The hearing representative noted that, since the burden of proof rested with the
party seeking modification, the Office should advise appellant of the necessary evidence needed
to establish a basis for modification of his wage-earning capacity. The case was remanded to the
Office for further development concerning appellant’s request for modification of the August 8,
2000 wage-earning capacity determination. In a March 6, 2006 letter, the Office advised
appellant of the criteria for modifying a formal wage-earning capacity determination as well as
the necessary factual and medical evidence required to support such a request.
In a March 10, 2006 letter, appellant stated that he was an injured worker and that his
August 8, 2000 wage-earning capacity determination guaranteed him eight hours of work per
day. He argued that his wage-earning capacity decision should be honored and he should either
be provided with full-time work in his job in Puerto Rico or paid compensation for working less
than full time. Appellant stated that the original wage-earning capacity decision was not in error,
his medical condition had not changed and he had not been vocationally rehabilitated or
retrained.
By decision dated April 5, 2006, the Office denied modification of the August 8, 2000
wage-earning capacity decision. It found that appellant did not establish a basis for modification
of his wage-earning capacity or to award compensation for wage loss.

2

On April 24, 2006 appellant disagreed with the Office’s April 5, 2006 decision and
requested a review of the written record. In an undated statement, he reiterated that he wanted to
work 8 hours a day or 40 hours a week total, as guaranteed in his August 8, 2000 wage-earning
capacity decision. Appellant maintained that the employing establishment had an obligation to
provide him full-time work within his restrictions, regardless of his transfer to a different
location. Alternatively, he maintained that the Office should pay him wage-loss compensation
for the employing establishment’s failure to meet that obligation. Appellant submitted CA-7
forms for days he did not work a full eight hours or did not work at all because no work was
available. The employing establishment did not provide comments to his request for review of
the written record.
In an August 25, 2006 decision, the hearing representative affirmed the April 5, 2006
decision. She noted that appellant had voluntarily transferred to a position in Puerto Rico where
he was given fewer hours of work than he had received in the job on which the Office had based
the August 8, 2000 wage-earning capacity decision.
In a September 6, 2006 letter, appellant requested reconsideration. He argued that he
should not lose his earning potential because he voluntarily transferred to another location.
Appellant reiterated that he was not trying to modify the wage-earning capacity decision of
August 2000 and affirmed that the original determination was not in error and he had not been
retrained or vocationally rehabilitated. He also reiterated arguments that, since he was a
permanent rehabilitation employee who transferred positions within the employing
establishment, he should be compensated for wage loss as a result of not being granted full-time
work. Appellant also submitted additional evidence pertaining to his transfer request,
information about the new position, correspondence from the employing establishment and the
Office pertaining to his wage-loss claims, the rehabilitation assignment and permanent
rehabilitation positions. He also provided Standard Form 50’s from October 1993 through
September 2005; notices of personnel actions as well as an eReassign Supervisor Evaluation;
correspondence from the employing establishment pertaining to the rehabilitation assignment
and permanent rehabilitation positions in general; and printouts from various publications as well
as a copy of the Office’s August 8, 2000 wage-earning capacity decision. Appellant continued to
submit additional claims for wage loss.
By decision dated March 21, 2007, the Office denied modification of its August 25, 2006
decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that actual earnings in employment
or earnings in a selected position, represents a claimant’s ability to earn wages. Compensation
payments are based on the wage-earning capacity determination and it remains undisturbed until
properly modified.1

1

See Sharon C. Clement, 55 ECAB 552 (2004).

3

The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance the Office will need to evaluate
the request according to the customary criteria for modifying a formal loss of wage-earning
capacity.2 Once the wage-earning capacity of an injured employee is determined, a modification
of such determination is not warranted unless there is a material change in the nature and extent
of the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.3 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.4
ANALYSIS
On August 8, 2000 the Office issued a formal wage-earning capacity decision on
appellant’s limited-duty position as a modified city carrier technician and found no wage loss
had occurred. In November 2004, appellant voluntarily transferred to a PTF position in Puerto
Rico which provided fewer hours of work than the position on which appellant’s wage-earning
capacity was based. He subsequently claimed wage-loss compensation beginning January 6,
2005 on the basis that he was not being provided full-time employment in his PTF position in
Puerto Rico. As noted above, applicable case law and Office procedures require that, once a
formal wage-earning capacity decision is in place, a modification of such determination is not
warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was, in fact, erroneous.5 The burden of proof is on the party attempting to show
modification of the wage-earning capacity determination.6
In the present case, appellant did not submit evidence showing that the Office’s August 8,
2000 wage-earning capacity determination was erroneous. Rather, he requested wage-loss
compensation on the basis that he was not being provided full-time employment in the PTF
position in Puerto Rico. Because a formal wage-earning determination was in place when
appellant filed the claim, the Office properly adjudicated the case as a request for modification of
an established loss of wage-earning capacity.7 The Board finds that appellant has not met his
burden of proof. Appellant opined that he did not believe that the original determination was
erroneous and acknowledged that he had not been retrained or vocationally rehabilitated and that
his condition did not change. There is no evidence of record to establish that appellant has been
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11 (June 1996).
3

Stanley B. Plotkin, 51 ECAB 700 (2000); Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

Stanley B. Plotkin, supra note 3.

6

Id.

7

Katherine T. Kreger, 55 ECAB ___ (2004); Sharon C. Clement, supra note 1; Federal (FECA) Procedure
Manual, supra note 2.

4

retrained or otherwise vocationally rehabilitated and he has submitted no medical evidence to
show that there was a material change in the nature and extent of the injury-related condition
beginning January 6, 2005. In fact, he has submitted no medical evidence since he initially
submitted his claim. The factual material appellant did submit fails to support any of the three
criteria for modifying a wage-earning capacity decision.
Appellant’s contentions on appeal do not constitute a basis for reinstatement of
compensation for wage loss. Compensation under the Federal Employees’ Compensation Act is
payable for disability for work due to an injury or disease causally related to the employment.
Appellant’s claim for his left knee condition was accepted by the Office and he received
appropriate benefits for his wage-loss and medical treatment. He returned to work as a modified
city carrier. The August 8, 2000 decision established that residuals of appellant’s left knee injury
did not impair his ability to earn actual wages equal to those he received at the time of his
injury.8 Therefore, the Office’s decision established that appellant was not “disabled” as that
term is used under the Act. The Board has explained, as follows:
“Disability is not synonymous with physical impairment which may or may not
result in an incapacity to earn wages. An employee who has a physical
impairment causally related to his or her federal employment, but who
nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in the Act and is not entitled to
compensation for loss of wage-earning capacity. When, however, the medical
evidence establishes that residuals of an employment injury are such that, from a
medical standpoint, they prevent the employee from continuing in his or her
employment, the employee is entitled to compensation for any loss of wageearning capacity resulting from the employment.”9
Appellant has not submitted any medical evidence to establish that his inability to earn
the wages he was receiving is due to residuals of his left knee condition. The record establishes
that he transferred from his job in Michigan to a part-time flexible position in Puerto Rico which
did not guarantee more than four hours of work per pay period. Appellant’s reasons for leaving
the full-time modified-duty position in Michigan to move to Puerto Rico and accept less than
full-time employment are not of record. It is evident, however, that he has not established that he
left his modified-duty position in Michigan for any reason related to his accepted injury. The
record does not demonstrate that appellant’s inability in Puerto Rico to earn the wages he was
receiving is due to any worsening of his accepted condition. Therefore, his loss of earnings must
be attributed to his voluntary reduction in work hours as opposed to residuals associated with his
left knee condition. By voluntarily limiting his income, appellant has no right to compensation
for partial disability.10 To establish his claim for benefits under the Act, appellant must submit
8

Under the Act, the term “disability” means the incapacity because of an employment injury to earn the wages
the employee was receiving at the time of injury. See Cheryl L. Decavitch, 50 ECAB 397 (1999); George A.
Compton, 45 ECAB 154 (1993).
9

Roberta L. Kaaumoana, 54 ECAB 150 at 151-52 (2002).

10

See Larson, Workers’ Compensation Law § 84.04D[2] and cases cited therein.

5

evidence sufficient to show that his reduction in hours is due to a change in his accepted
condition. This appellant has failed to prove.
As noted above, the burden of proof is on the party attempting to show a modification of
the wage-earning capacity. In this case, the record is devoid of any evidence to support any of
the three criteria for modifying a wage-earning capacity decision. Moreover, the fact that
appellant voluntarily transferred to a position which provided fewer hours of work than the
position for which the wage-earning capacity was based is not a basis for modification of a
wage-earning capacity decision. In other words, the fact that he voluntarily chose to leave the
position does not affect this wage-earning capacity determination.
Appellant did not meet his burden of proof to modify his August 8, 2000 wage-earning
capacity determination and compensation for the claimed wage loss is not payable.
CONCLUSION
The Board finds that appellant has failed to establish a basis for modification of the
August 8, 2000 wage-earning capacity rating as a modified city carrier technician and, thus,
compensation for the claimed wage loss is not payable.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated March 21, 2007, August 25 and April 5, 2006 are affirmed.
Issued: November 13, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Forrest City, AR,
Employer
__________________________________________

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

Docket No. 16-0668
Issued: May 10, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 22, 2016 appellant timely appealed from a January 11, 2016 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 claim.2
ISSUE
The issue is whether appellant established a groin/testicle injury causally related to the
June 25, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after OWCP rendered its January 11,
2016 decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of
its final decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On June 25, 2015 appellant, then a 32-year-old correctional officer, was lifting weights in
the employing establishment’s fitness room when he experienced severe pain in his groin/testicle
area. Appellant was doing squats with 135 pounds of weights when he felt like he pulled
something in his groin. The weight training was reportedly part of appellant’s work-related
physical fitness requirement. The employing establishment represented that appellant was in the
performance of duty at the time of the alleged injury. It also authorized medical treatment (Form
CA-16) on June 25, 2015, noting that appellant had been involved in a training injury. The CA16 noted a “Groin injury where previous surgery was performed [in January 2008].”
Later that same day, Dr. James R. Jacobs, a family practitioner, examined appellant for
complaints of testicular/scrotal pain. He diagnosed scrotal pain, scrotum mass, and spermatic
cord stricture. Dr. Jacobs referred appellant for an ultrasound, which revealed a 2.5 centimeter
(cm) subcutaneous mass in the right aspect of the penoscrotal junction. Dr. Adam P. Cabell, a
Board-certified radiologist who interpreted the June 25, 2015 scrotal ultrasound, noted a history
of vasectomy in 2008.3 He provided differential diagnoses of soft tissue granuloma (related to
prior surgery, trauma, or infection), exuberant scarring, and neoplastic. Dr. Cabell recommended
a surgical consultation.
On June 29, 2015 Dr. Jacobs at a follow-up examination reported that appellant was still
in a lot of pain. Additionally, appellant was unable to take medications at work, and therefore,
he needed to be excused from work. Dr. Jacobs diagnosed primary scrotum mass (ICD-9
608.89). He prescribed Naproxen and referred appellant for a urology consultation. Dr. Jacobs
also submitted a June 30, 2015 attending physician’s report (Form CA-20). He diagnosed
scrotum mass and noted that appellant had been referred to a urologist, which was scheduled for
July 20, 2015. Dr. Jacobs checked the appropriate boxes indicating that there was no history or
evidence of concurrent or preexisting injury and that the diagnosis was not caused or aggravated
by employment. With regard to causal relationship, he did not offer an explanation for his
finding that appellant’s condition was not work related.
Appellant returned for follow-up on July 6, 2015. Dr. Jacobs diagnosed scrotum mass
and excused appellant from work for two weeks. His pain persisted and Dr. Jacobs prescribed
Tramadol. The July 6, 2015 follow-up treatment notes indicated that appellant reportedly denied
any past surgical history.
Dr. Richard N. Greene Jr., a Board-certified urologist, examined appellant on
July 20, 2015. Appellant reported that he had a knot in his testicle that felt like it ripped and had
been causing him a lot of pain. Dr. Greene further noted that appellant was status post
vasectomy in 2008, and previously had a small knot in his right scrotum that after a while
became larger and painful. At the time, appellant was diagnosed with sperm granuloma and
given antibiotics and nonsteroidal anti-inflammatory drugs (NSAIDS), and his symptoms largely
resolved for several years except for intermittent pain. However, Dr. Greene noted that appellant
3

The ultrasound was performed at CrossRidge Community Hospital. Appellant’s hospital records noted a
June 25, 2015 employment-related accident, but did not elaborate further. The reported reason for his visit was a
cord stricture (ICD-9 608.85).

2

was recently doing squats and developed severe right groin pain, as well as intermittent
pain/swelling to the sperm granuloma. Dr. Greene also reported that the cyst was somewhat
larger and very painful to touch. Appellant denied hematuria and reportedly had no other acute
complaints. His groin pain was slowly improving. On physical examination, Dr. Greene noted
that appellant’s left teste was normal. However, the right teste revealed a lesion upon inspection,
which Dr. Greene believed was either a small superficial cyst or a sperm granuloma
(spermatocele). After discussing treatment options, appellant chose to undergo surgery for
scrotal exploration and possible excision of the mass. He was reportedly quite bothered by the
cyst and wanted it removed. Dr. Greene also provided a July 20, 2015 work capacity evaluation
(OWCP-5c). He noted that appellant was scheduled for surgery on July 21, 2015, and would
need one week to recover before returning to full duty.
Dr. Joseph C. Kueter, a Board-certified urologist, submitted a July 28, 2015 attending
physician’s report (Form CA-20) and work capacity evaluation (OWCP-5c). He listed the date
of injury as “unknown” and reported a history of scrotal cyst. Dr. Kueter diagnosed scrotal
cyst/spermatocele (ICD-9 608.1).4 He reported that appellant had been admitted for one-day
surgery on July 21, 2015 and discharged postoperative. The treatment consisted of excision of
cyst and scrotal exploration. Dr. Kueter indicated that appellant was totally disabled from
July 21 through August 3, 2015. On the July 28, 2015 OWCP-5c, Dr. Kueter indicated that
appellant was currently unable to perform his usual job. He explained that appellant had stitches
that needed to dissolve before returning to work on August 3, 2015.
In an August 26, 2015 decision, OWCP denied appellant’s traumatic injury claim because
the medical evidence was insufficient to establish a causal relationship between the diagnosed
condition and the June 25, 2015 employment incident.
OWCP subsequently received appellant’s July 21, 2015 hospital admission records,
including operative and pathology reports. Dr. Greene’s July 21, 2015 operative report noted
that appellant was a 32-year-old male with history of vasectomy in 2008. Since then he
developed a small knot at the right side of his scrotum that had periodically been painful.
Dr. Greene further noted that appellant recently had a musculoskeletal injury and his cyst
became significantly more painful and was difficult to touch. He also reported that, after
evaluation and counseling, appellant decided to proceed with scrotal exploration and excision.
The postoperative diagnosis was right scrotal cyst approximately 1.5 cm in size. It was noted to
be tracking down towards the vas deferens of the left testicle.
The July 21, 2015 pathology report noted skin showing a cystic structure containing
numerous thick-wall blood vessels, with acute hemorrhage, hemosiderin deposition, acute and
chronic inflammation, abscess formation, and abundant foamy histiocytes that were
histologically benign. The pathology report further noted that the findings may represent a
previously ruptured hemangioma.

4

Dr. Kueter checked the appropriate boxes indicating that there was no history or evidence of concurrent or
preexisting injury and that the condition was not caused or aggravated by employment. However, he did not provide
an explanation for his finding that appellant’s condition was not work related.

3

On October 13, 2015 appellant requested reconsideration. He submitted an October 2,
2015 attending physician’s report (Form CA-20) from Dr. Emma Jacobs, a urologist. The report
did not specify a date of injury, but noted that appellant experienced testicular pain while
weightlifting as part of his job. Dr. E. Jacobs also noted that appellant experienced similar pain
in 2008. She diagnosed spermatocele, which occurred due to straining. Dr. E. Jacobs checked
the appropriate box on the form indicating her belief that the diagnosed condition was
employment related. However, she did not provide an explanation. Dr. E. Jacobs also noted that
appellant’s pain improved following removal of the spermatocele, which was performed by a
colleague who was no longer associated with her practice. Lastly, Dr. E. Jacobs indicated that
appellant had been advised that he could resume working.
In a separate handwritten note, Dr. E. Jacobs indicated that appellant had testicular pain
shortly after his vasectomy in 2008, which was self-limited. She further noted that in summer
2015, he had an acute onset of testicular pain while lifting weights for work, and developed a
spermatocele, which required surgery in July 2015. Dr. E. Jacobs indicated that she first saw
appellant on September 15, 2015 for his surgical follow-up. She stated that it seemed clear that
this was a separate, work-related injury.
By decision dated January 11, 2016, OWCP denied modification. The senior claims
examiner found that the medical evidence of record was insufficient to establish a causal
relationship between appellant’s cyst/spermatocele and the June 25, 2015 work-related weight
lifting incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To determine if an employee 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 An employee may establish that an injury occurred in the performance of duty
5

20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.

4

as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.8
ANALYSIS
On June 25, 2015 appellant experienced severe groin pain while lifting weights at work.
He had a vasectomy in 2008. When Dr. J. Jacobs examined appellant on June 25, 2015, he
diagnosed scrotal pain, scrotum mass, and spermatic cord stricture. He did not offer an opinion
regarding the cause of appellant’s condition. Moreover, Dr. J. Jacobs’ treatment notes did not
mention appellant’s work-related weightlifting incident earlier that day or 2008 vasectomy.
Appellant’s June 25, 2015 scrotal ultrasound revealed a 2.5 cm subcutaneous mass in the
right aspect of the penoscrotal junction, which was thought to be either a soft tissue granuloma
(related to prior surgery, trauma or infection), exuberant scarring, and less likely neoplastic.
Dr. Cabell, the radiologist, was unable to provide a definitive answer regarding the type of mass
he observed or its etiology.
Appellant followed-up with Dr. J. Jacobs on June 29 and July 6, 2015, but neither of the
associated treatment records and reports referenced appellant’s 2008 vasectomy or the June 25,
2015 employment incident. The only time Dr. J. Jacobs specifically addressed causal
relationship was in his June 30, 2015 CA-20 where he indicated, without explanation, that
appellant’s condition was not work related. A physician’s opinion on causal relationship must be
based on a complete factual and medical background.9 Dr. J. Jacobs’ various reports are of little
or no probative value in determining the etiology of appellant’s current condition.
Dr. Greene examined appellant on July 20, 2015 and performed surgery the following
day. His July 21, 2015 postoperative diagnosis was right scrotal cyst. Dr. Greene was aware
that appellant had a vasectomy in 2008, and had previously been diagnosed and treated for a
sperm granuloma, which had largely resolved except for intermittent pain. He further noted that
appellant recently had a musculoskeletal injury -- while doing squats -- and his cyst became
significantly more painful and was difficult to touch. Although Dr. Greene noted a temporal
relationship between appellant’s squats and an increase in pain with respect to his preexisting
sperm granuloma/cyst, Dr. Greene did not adequately explain how the noted activity either
aggravated or exacerbated appellant’s condition. The mere fact that a condition manifests itself
during a period of employment is insufficient to establish causal relationship.10 Temporal
relationship alone will not suffice.11
Dr. Kueter’s July 28, 2015 Form CA-20 reported a history of injury of “scrotal cyst” with
an “unknown” date of injury. He diagnosed scrotal cyst/spermatocele and checked a box “No”
on the form report indicating his belief that appellant’s condition was not caused or aggravated
8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Victor J. Woodhams, supra note 7.

10

20 C.F.R. § 10.115(e).

11

See D.I., 59 ECAB 158, 162 (2007).

5

by an employment activity. However, Dr. Kueter failed to explain his opinion on causal
relationship. As noted, a physician’s opinion on causal relationship must be based on a complete
factual and medical background and must be supported by medical rationale.12
Dr. E. Jacobs, who first examined appellant on September 15, 2015, noted that he had
testicular pain shortly after his 2008 vasectomy, and recently experienced an acute onset of
testicular pain while lifting weights for work, at which point he developed a spermatocele. She
did not specify an exact date of injury other than noting “summer 2015.” Dr. E. Jacobs attributed
appellant’s spermatocele to straining, which she indicated was employment related. She also
noted that appellant’s pain improved following surgery. Without explanation, Dr. E. Jacobs
opined that it seemed clear that this was a separate, work-related injury. However, it is not
readily apparent from the record or Dr. E. Jacobs’ report that appellant developed a spermatocele
as a result of the June 25, 2015 weightlifting incident. Moreover, Dr. Greene, a former
colleague, clearly represented that appellant’s sperm granuloma/cyst predated the work-related
incident. Dr. E. Jacobs has offered no rational explanation for her apparent belief that appellant
developed a spermatocele within hours of the June 25, 2015 weightlifting incident.
The Board finds that the evidence of record fails to establish causal relationship between
appellant’s accepted employment exposure and his diagnosed groin/testicle condition.13
Accordingly, OWCP properly denied his traumatic injury 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
Appellant failed to establish that he sustained a groin/testicle injury causally related to the
June 25, 2015 incident.

12

Victor J. Woodhams, supra note 7.

13

Appellant’s personal belief that his employment activities either caused or contributed to his condition is
insufficient, by itself, to establish causal relationship. 20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426,
440 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
DEPARTMENT OF JUSTICE,
METROPOLITAN CORRECTIONAL
CENTER, New York, NY, Employer
__________________________________________
Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-476
Issued: July 26, 2012

Case Submitted on the Record

ORDER AFFIRMING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 3, 2012 appellant, through his attorney, filed a timely appeal from the July 5,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed
his December 2, 2010 schedule award claim.1
The Board has duly considered the matter and will affirm OWCP’s July 5, 2011 decision.
Appellant’s attorney expresses no disagreement with the schedule award per se. Rather, he
asserts only that OWCP delayed its adjudication of appellant’s schedule award claim until the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (2009) became applicable on May 1, 2009, which deprived him of
due process rights regarding a determination under the fifth edition of the A.M.A., Guides (2001)
and represented an abuse of discretion. Counsel contended that the medical evidence of record
was in full concurrence with the fifth edition of the A.M.A., Guides and submitted well in
1

OWCP accepted that on November 6, 2003 appellant, then a 41-year-old correctional supervisor, sustained right
knee medial and lateral meniscus tears and aggravation of right knee osteoarthritis when he slipped on a staircase
and struck his knee on a step while escorting an inmate on a treaty transfer to an airport. He underwent arthroscopic
right knee surgery on April 27, 2004 and total right knee replacement on March 9, 2006. In a December 2, 2010
decision, OWCP granted appellant a schedule award for 37 percent impairment to his right lower extremity.

advance of the effective date for the use of the sixth edition. He maintained that OWCP’s
application of the sixth rather than the fifth edition harmed appellant by diminishing the amount
of the schedule award to which he was entitled. The Board has held, however, that a claimant
has no vested right to a schedule award when he or she has only made a claim for a schedule
award.2 To the extent that counsel is arguing that appellant was deprived of a protected property
interest, the Board notes that such assertions are similar to arguments made in the cases of
Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). These
cases held only that a claimant who was in receipt of benefits (in Goldberg welfare benefits and
in Mathews social security benefits) could not have those benefits terminated without procedural
due process. In this case, appellant simply made a claim for a schedule award. He was not in
receipt of schedule award benefits nor was OWCP attempting to terminate benefits. Appellant
had no vested right to a schedule award under the fifth edition of the A.M.A., Guides.3
In Harry D. Butler,4 the Board noted that Congress delegated authority to the Director of
OWCP regarding the specific methods by which permanent impairment is to be rated. Pursuant
to this authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.5 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.6 The FECA Bulletin directed that
correspondence with treating physicians, consultants and second opinion specialists should
reflect use of the new edition for decisions issued on or after May 1, 2009. The applicable date
of the sixth edition is as of the schedule award decision reached. It is not determined by either
the date of maximum medical improvement or when the claim for such award was filed. In this
case, OWCP, on August 31, 2009, properly advised appellant, that effective May 1, 2009 all
permanent impairment determinations must be made in accordance with the sixth edition and
requested a new impairment rating corresponding to this edition. The Board finds that counsel
has not established that the Director abused the discretion delegated to him under section 8107
and the implementing federal regulations to make the sixth edition of the A.M.A., Guides
applicable to all claimants as of May 1, 2009. The fact that the sixth edition revises the
evaluation methods used in previous editions does not establish an abuse of discretion. As noted
in FECA Bulletin No. 09-03, the American Medical Association periodically revises the A.M.A.,
Guides to incorporate current scientific clinical knowledge and judgment and to establish
standardized methodologies for calculating permanent impairment. Accordingly, the Board will
affirm OWCP’s July 5, 2011 decision.

2

See P.V., Order Affirming Case, Docket No. 11-348 (issued September 15, 2011); B.M., Order Affirming Case,
Docket No. 11-1468 (issued January 12, 2010).
3

Id.

4

43 ECAB 859 (1992).

5

Id. at 866.

6

FECA Bulletin No. 09-03 (issued March15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

2

IT IS HEREBY ORDERED THAT the July 5, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 26, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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