United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE ARMY,
Camp LeJeune, NC, Employer
__________________________________________
Appearances:
Martin Kaplan, Esq, for the appellant
Office of the Solicitor, for the Director

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Docket No. 12-1638
Issued: January 31, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
On July 25, 2012 appellant, through his attorney, filed an application for review of a
decision of the Office of Workers’ Compensation Programs (OWCP) dated May 31, 2012. The
appeal was docketed as No. 12-1638.
This is the third appeal before the Board. In its last review, by May 28, 2008 decision,
the Board affirmed the denial of claims for wage-loss compensation commencing
May 27, 2004.1 Appellant subsequently sought compensation for wage loss for periods in 2008
and 2010. He also filed a claim for a recurrence of disability as of March 7, 2011. By letter
dated May 31, 2012, OWCP advised appellant that it had already disposed of the issue and that
the Board had denied his claim in 2008. It stated that he needed to submit an appeal of his issue
to the Board.
Appellant’s attorney contends on appeal that the May 31, 2012 letter constitutes an
effective denial of appellant’s claim for recurrence of disability and/or wage-loss compensation
and a final adverse decision, even though the letter contained no statement of appeal rights. In
support of his contention he references the Board’s decision in B.C., Docket No. 11-1903, issued
March 26, 2012, which contained a similar factual scenario. In that case, the Board found that an
1

Docket No. 07-2210 (issued May 28, 2008).

OWCP letter dated July 14, 2011 advising appellant that her case had been formally denied
constituted an effective denial of her claim for a recurrence of disability. It therefore found that
the July 14, 2011 letter presented a final, adverse decision subject to review under 20 C.F.R.
§§ 501.2(c) and 501.3(a). Appellant’s attorney argues that the instant claim is sufficiently
similar to warrant the same finding by the Board.
Appellant is claiming that there was a recurrence of disability as a result of a worsening
of his medical condition and that he is therefore entitled to compensation for wage loss for the
periods claimed. OWCP stated in its May 31, 2012 letter that appellant was in fact appealing
ECAB’s May 28, 2008 decision, which affirmed an October 12, 2006 OWCP decision denying
compensation as of May 27, 2004. However, in the instant case, appellant is claiming
compensation for wage loss for periods subsequent to the Board’s May 28, 2008 decision.
Counsel notes that appellant’s claim was expanded to include ulnar nerve compression for both
upper extremities on September 20, 2007. He asserts that the 2008 ECAB decision did not
address whether, based on this additional condition, appellant was currently entitled to
compensation or whether his condition worsened in 2007. Counsel argues that the 2008 ECAB
decision and the decisions it affirmed did not address his alleged 2007 recurrence and could not
possibly address a subsequent recurrence of appellant’s accepted conditions.
Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact
and a statement of reasons.2 As counsel contends, OWCP effectively denied appellant’s claims
for compensation for wage loss for periods in 2008 and 2010 and for a recurrence of disability as
of March 7, 2011 in its May 31, 2012 letter, but did not consider the medical evidence appellant
submitted in this case, make findings of fact regarding the medical evidence appellant submitted,
or provide a statement of reasons supporting its determination. It erred by finding that the
May 28, 2008 ECAB decision addressed and disposed of these issues.
The Board finds that OWCP failed to give proper consideration to the evidence that
appellant submitted in support of his claim. As it failed to make detailed findings and state the
reasons for its denial of compensation in its May 31, 2012 decision, the Board finds that the
appeal docketed as No. 12-1638 must be set aside and remanded for adjudication of the case
pursuant to section 8128(a).
Accordingly, the case will be set aside and remanded for consideration of appellant’s
evidence pursuant to the standards set out in section 8128(a) and section 20 C.F.R. § 10.126, to
determine whether he has established that he sustained a recurrence of disability for the periods
claimed. After such further development as OWCP deems necessary, it should issue an
appropriate decision to protect appellant’s appeal rights.

2

20 C.F.R. § 10.126.

2

IT IS HEREBY ORDERED THAT this case be set aside and remanded for
reconsideration of the merits of appellant’s claim.
Issued: January 31, 2013
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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blue Springs, MO, Employer
__________________________________________

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

Docket No. 17-1521
Issued: December 28, 2017

Case Submitted on the Record

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

JURISDICTION
On July 3, 2017 appellant filed a timely appeal from a June 6, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish right hip osteoarthritis
causally related to the accepted factors of her federal employment.
On appeal appellant asserts that the medical evidence submitted is sufficient to establish
that daily job duties for 29 years aggravated her hip condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 9, 2016 appellant, then a 59-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that her regular job duties of twisting, turning,
walking, and lifting heavy boxes aggravated bilateral degenerative joint disease of the hips and
lower back.
The employing establishment indicated that appellant stopped work on
September 9, 2016.
In support of her claim, appellant submitted a July 22, 2016 report in which Dr. Todd A.
Stastny, a family physician, diagnosed low back pain, spondylosis of L5 on S1, left hip
degenerative joint disease and pain, bilateral leg pain and spasticity, right hip degenerative joint
disease and groin pain, generalized osteoarthritis and pain, fibromyalgia syndrome, restless leg
syndrome, and idiopathic bilateral lower extremity neuropathy by electrodiagnostic (EMG)
study. On August 12, 2016 Dr. Gerald Dugan, a Board-certified orthopedic surgeon, noted that
appellant was scheduled for a right total hip arthroplasty on September 13, 2016. He indicated
that appellant’s job may cause irritation of both hips and recommended that she be allowed to sit
periodically.
By letter dated September 19, 2016, OWCP informed appellant of the evidence needed to
support her claim. This was to include a medical explanation from her physician as to how work
activities caused, contributed to, or aggravated her condition. In a separate September 19, 2016
letter, OWCP asked that the employing establishment provide a copy of appellant’s position
description and the physical requirements of appellant’s job.
In a statement dated October 10, 2016, appellant indicated that in June 2015 she began
seeing her primary care doctor for leg, hip, and lower back pain, and he referred her to an
orthopedic surgeon. She stated that she had a very heavy workload in November and
December 2015, and that she underwent right hip total replacement surgery on
September 13, 2016. Appellant also noted that she had a prior accepted claim, adjudicated by
OWCP under File No. xxxxxx067, for a groin injury that occurred when she fell off a porch
while delivering mail in April 2016.2
In an October 17, 2016 letter, the employing establishment indicated that a city letter
carrier had physical requirements of lifting 30 pounds intermittently, pushing and pulling with
force 5 pounds for 30 minutes, bending and stooping intermittently for 30 minutes, walking
intermittently for 4 hours, sitting intermittently for 5 hours, standing intermittently for 2 hours,
and carrying 30 pounds intermittently for 4 hours. A city carrier position description was
attached.
Medical evidence submitted included a December 9, 2015 report in which Dr. Leslie A.
Michaud, Board-certified in family and sports medicine, performed ultrasound-guided right hip
corticosteroid injection for right hip osteoarthritis. On December 13, 2016 Dr. Michaud noted
appellant’s complaints of right hip, bilateral knee, and back pain, which was made worse by
walking. Following examination, she diagnosed bilateral knee primary osteoarthritis. On
2

The instant claim was adjudicated by OWCP under File No. xxxxxx435. Claim number xxxxxx067 is not
presently before the Board.

2

March 16, 2016 Dr. Michaud again performed a second ultrasound-guided right hip
corticosteroid injection for right hip osteoarthritis.
Fluoroscopy-guided needle placement by Dr. Scott I. Sher, a Board-certified radiologist,
on April 20, 2016 demonstrated severe right hip joint degenerative changes. A right hip
magnetic resonance imaging (MRI) scan done by Dr. Sher that day showed moderate right hip
joint degenerative changes, no muscle or tendon abnormality, no evidence of bursitis, and
postsurgical changes at L5-S1. A left hip MRI scan done by Dr. Sher on April 29, 2015
demonstrated postsurgical changes at L5-S1, mild degenerative changes, and no identifiable
abnormalities in the left hip region.
In a June 9, 2016 treatment note, Dr. Michaud described appellant’s continued complaint
of right hip pain secondary to osteoarthritis. She noted that appellant could be a candidate for
total hip arthroplasty. On June 29, 2016 Dr. Michaud performed ultrasound-guided left hip
corticosteroid injection for left hip osteoarthritis.
Dr. Terrence Pratt, a Board-certified physiatrist, saw appellant on July 12, 2016 for a
history of progressive hip discomfort, right greater than left. Appellant also had some lower
extremity symptoms that she attributed to lower back involvement. Dr. Pratt indicated that
appellant reported that the symptoms were exacerbated with standing, walking, and casing mail.
He described physical examination findings and his review of the MRI scans, noting moderate
degenerative changes on the right and mild degenerative changes on the left with postoperative
changes at L5-S1. Dr. Pratt’s diagnoses included hip pain and hip degenerative joint disease. He
recommended orthopedic consultation.
On July 25, 2016 Dr. Dugan noted a two-year history of bilateral hip pain, greater on the
right, which had been refractory to conservative measures. Examination showed an antalgic gait
and decreased right hip range of motion. Hip x-rays that day revealed degenerative changes on
the left and right, and lumbar spine surgical changes. Dr. Dugan diagnosed history of low back
pain, previous back surgery, gait dysfunction, and degenerative joint disease of both hips, right
greater than left. Appellant elected to proceed with right total hip arthroplasty.
On September 13, 2016 Dr. Dugan performed right total hip arthroplasty. Dr. Reggie
Voboril, a Board-certified internist, saw appellant in postoperative consultation on
September 14, 2016. She noted a history of lumbar laminectomy and indicated that appellant
was seen for pain management and deep venous thrombosis prophylaxis.
Dr. Dugan saw appellant in follow-up on September 16 and 30, 2016. On September 30,
2016 he advised that appellant could return to modified duty on October 17, 2016.
In a December 14, 2016 decision, OWCP found that the medical evidence of record was
insufficient to establish that a medical condition was causally related to appellant’s work duties.
In correspondence postmarked January 6, 2017, appellant requested an oral hearing or a review
of the written record by OWCP’s Branch of Hearings and Review.
Appellant provided an August 3, 2016 work status report in which Dr. Dugan noted that
appellant was scheduled for a right total hip arthroplasty on September 13, 2016. Dr. Dugan

3

indicated that appellant’s job may cause irritation of both hips and recommended that she be
allowed to sit periodically.
In a handwritten December 29, 2016 progress note, Dr. Stastny referred to a July 6, 2016
treatment note, indicating that it had supported causal relationship. He opined that appellant’s
repetitive job duties worsened her progressive hip arthritis such that she required a right hip
replacement. Dr. Stastny further opined that her condition would not have escalated had she not
delivered mail for 29 years.
By decision dated June 6, 2017, an OWCP hearing representative affirmed the
December 14, 2016 decision. She noted that the medical record contained scant evidence that
addressed causal relationship and found Dr. Stastny’s opinion of insufficient rationale to meet
appellant’s burden of proof.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, and that the claim was timely filed within the
applicable time limitation period of FECA.4 When an employee claims that he or she sustained
an injury in the performance of duty,5 he or she must submit sufficient evidence to establish that
he or she experienced a specific event, incident, or exposure occurring at the time, place, and in
the manner alleged.6 The employee must also establish that such event, incident, or exposure
caused an injury.7 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.8
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”9 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 diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty and must be supported by medical rationale
3

Supra note 1.

4

5 U.S.C. § 8101(1); L.M., Docket No. 16-0143 (issued February 19, 2016); B.B., 59 ECAB 234 (2007).

5

Id. at § 8102(a).

6

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

7

Id.

8

R.H., 59 ECAB 382 (2008).

9

20 C.F.R. § 10.5(ee).

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explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.10
Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.11 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 employee.12 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that bilateral
hip osteoarthritis or any other diagnosed condition was causally related to factors of her federal
employment.
The record is replete with medical evidence including MRI scans and reports from a
number of doctors that confirm a diagnosis of bilateral hip degenerative osteoarthritis. None of
these reports, however, are of sufficient probative value to establish that the diagnosed condition
was caused or aggravated by appellant’s federal employment duties.
The April 20 and 29, 2016 MRI scans of the right and left hip provided diagnostic
insight; however, it did not provide a cause of any diagnosed conditions. 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.14 Likewise, neither Dr. Michaud nor Dr. Pratt
discussed the cause of the diagnosed arthritis. Thus, their reports are also insufficient to meet
appellant’s burden of proof.
In Dr. Dugan’s reports dated August 3 and 12, 2016, he merely indicated that appellant’s
job could cause irritation of both hips. While the medical opinion of a physician supporting
causal relationship does not have to reduce the cause or etiology of a disease or condition to an
absolute certainty, neither can such opinion be speculative or equivocal. The opinion of a
physician supporting causal relationship must be one of reasonable medical certainty that the
condition for which compensation is claimed is causally related to federal employment and such
relationship must be supported with affirmative evidence, explained by medical rationale, and be

10

Roy L. Humphrey, 57 ECAB 238 (2005).

11

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

12

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

13

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

14

Willie M. Miller, 53 ECAB 697 (2002).

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based upon a complete and accurate medical and factual background of the claimant.15
Dr. Dugan’s reports lack sufficient specificity to meet appellant’s burden of proof.
Dr. Stastny opined on December 29, 2016 that appellant’s repetitive job duties worsened
her progressive hip arthritis such that she required a right hip replacement. He further opined
that this would not have escalated if she had not delivered mail for 29 years. Dr. Stastny,
however, also referenced a July 6, 2016 treatment note indicating that it supported causal
relationship. The July 6, 2016 treatment note is not found in the record before the Board.
Moreover, a mere conclusion without the necessary rationale explaining how and why the
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
not sufficient to meet a claimant’s burden of proof.16
To establish causal relationship, a claimant must submit a physician’s report in which the
physician reviews the employment factors identified as causing the claimed condition and, taking
these factors into consideration as well as findings upon examination, states whether the
employment injury caused or aggravated the diagnosed conditions and presents medical rationale
in support of his or her opinion.17
As none of the physicians of record provided a sufficient explanation regarding whether
appellant’s hip degenerative arthritis or other diagnosed condition was caused or aggravated by
her letter carrier duties, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right hip
osteoarthritis causally related to factors of her federal employment.

15

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

16

J.D., Docket No. 14-2061 (issued February 27, 2015).

17

J.M., 58 ECAB 303 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the June 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 28, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Ysidro, CA, Employer
__________________________________________

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

Docket No. 14-1308
Issued: October 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 20, 2014 appellant filed a timely appeal from the December 6, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied an
additional schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 13 percent impairment of his left lower
extremity, for which he received schedule awards.
FACTUAL HISTORY
On December 20, 2010 appellant, a 44-year-old border patrol agent, sustained a traumatic
injury in the performance of duty while attempting to jump a fence in response to a sensor
1

5 U.S.C. § 8101 et seq.

activation. OWCP accepted his claim for lumbar sprain and lumbosacral (joint) sprain. It later
accepted displacement of lumbar intervertebral disc without myelopathy.
OWCP issued a schedule award on September 24, 2012 for a four percent additional
impairment of the left lower extremity. It indicated that appellant had already received a
schedule award in 2003 for a nine percent impairment of the left lower extremity under another
claim number,2 accepted for an accepted left knee sprain. With the additional four percent
impairment due to mild sensory and motor deficits of the S1 spinal nerve root, appellant’s
combined left lower extremity impairments totaled 13 percent.
On January 7, 2013 an OWCP hearing representative affirmed appellant’s additional
schedule award.
Dr. Thomas W. Harris, the attending orthopedic surgeon, examined appellant on
March 26, 2013 and found a 10 percent impairment of the left lower extremity due to the
combination of L5 moderate sensory deficit (3 percent), S1 moderate sensory deficit (2 percent),
and an L5 mild motor deficit involving the extensor hallux longus (5 percent).
In a decision dated December 6, 2013, OWCP reviewed the merits of appellant’s case
and denied modification of its prior decision. It reasoned that, while Dr. Harris found a 10
percent impairment of the left lower extremity, appellant had already received schedule awards
for a 13 percent impairment. Accordingly, the evidence failed to establish that appellant was
entitled to greater impairment.
Appellant argues on appeal that his initial schedule award was for his left knee, and now
he has nerve damage, which is unrelated.
LEGAL PRECEDENT
The schedule award provision of FECA3 and the implementing regulations4 set forth the
number of weeks of compensation payable for permanent impairment from loss, or loss of use,
of scheduled members or functions of the body. FECA, however, does not specify the manner in
which the percentage of loss shall be determined. The method used in making such a
determination is a matter that rests within the sound discretion of OWCP.5
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the American Medical Association,
Guides to the Evaluation of Permanent Impairment as the appropriate standard for evaluating

2

OWCP File No. xxxxxx564.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Linda R. Sherman, 56 ECAB 127 (2004); Daniel C. Goings, 37 ECAB 781 (1986).

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schedule losses.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.7
ANALYSIS
Appellant submitted an impairment evaluation performed by his orthopedic surgeon,
Dr. Harris, who found a 10 percent impairment of the left lower extremity due to several spinal
nerve root deficits. OWCP found the percentage alone to be insufficient to establish that
appellant was entitled to an additional award because he had previously received schedule
awards totaling 13 percent impairment.
However, appellant received a schedule award under another claim for a nine percent
impairment of his left lower extremity due to an accepted left knee strain. The record does not
disclose how this impairment was calculated. When it was later determined that he had an
additional four percent impairment due to mild sensory and motor deficits of the S1 spinal nerve
root, OWCP combined the impairments due to left knee strain and spinal nerve root deficits to
determine that appellant had a total left lower extremity impairment of 13 percent.
Appellant submitted evidence of a greater impairment due to spinal nerve root deficits. If
this 10 percent impairment were combined with his previously determined 9 percent impairment
for left knee sprain, his total left lower extremity impairment would total 18 percent, according
to the Combined Values Chart on page 604 of the A.M.A., Guides.
OWCP did not refer this matter to its medical adviser for review. FECA procedures
relating to the evaluation of schedule awards state that the file should be routed to OWCP’s
medical adviser for an opinion concerning the nature and percent of impairment.8
As OWCP did not follow its procedures, the Board finds that this case is not in posture
for decision. The Board will set aside OWCP’s December 6, 2013 decision denying an
additional schedule award and will remand the case for further development of the medical
evidence. OWCP shall route the file to its medical adviser for review of Dr. Harris’ most recent
impairment evaluation and for an opinion on the nature and percentage of the entire impairment
to the left lower extremity under the sixth edition of the A.M.A., Guides. Following such further
development of the evidence as may become necessary, OWCP shall issue a de novo decision on
appellant’s entitlement to an additional schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.

6

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (January 2010).
8

Id. at Chapter 2.808.6.d.

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ORDER
IT IS HEREBY ORDERED THAT the December 6, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: October 7, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


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

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

Docket No. 12-184
Issued: September 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 4, 2011 appellant, through his attorney, filed a timely appeal of a July 28,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) regarding his
wage-earning capacity. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages in the constructed position of information clerk.
On appeal, appellant’s attorney contends that OWCP improperly terminated appellant’s
compensation based on the reports of the impartial medical examiner, Dr. Mark Levitsky, a
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 28, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

Board-certified orthopedic surgeon, who was not properly selected from the Physicians Directory
System (PDS). Specifically, counsel argues that Dr. Basil Ingemi, a Board-certified orthopedic
surgeon, was selected from the PDS and was bypassed without a proper reason. He further
contends that the vocational rehabilitation counselor changed her opinion regarding the number
of available information clerk positions and failed to confirm that the positions were reasonably
available to appellant.
FACTUAL HISTORY
On January 26, 2002 appellant, then a 35-year-old letter carrier, sustained a lower back
injury while loading mail onto a mail truck. He stopped work and did not return. OWCP
accepted the claim for bulging disc at L5-S1 and authorized physical therapy for 120 days from
February 15 to June 15, 2002. Appellant was placed on the periodic rolls and received
appropriate compensation benefits.
In an April 11, 2008 report, Dr. Robert Taffet, an orthopedic surgeon, opined that
appellant was unable to work as a letter carrier and was able to work full time with the following
permanent restrictions: half an hour of walking, standing and operating a motor vehicle; no
twisting, bending, stooping; no pushing or pulling more than 50 pounds; and no lifting more than
20 pounds.
On October 16, 2008 the Office of Inspector General submitted a report of investigation
of appellant covering the period July 12, 2006 to October 15, 2008.
On January 28, 2009 a vocational rehabilitation counselor identified three potential
positions for appellant: a security officer (hotel and restaurant), Department of Labor’s
Dictionary of Occupational Titles (DOT) No. 376.367-018; a surveillance system monitor, DOT
No. 379.367-010; and an information clerk, DOT No. 237.367-022. The information clerk
position was identified as sedentary and the duties included answering inquiries, providing
information regarding activities conducted at the employing establishment and the location of
departments, offices and employees within the organization, providing information concerning
services, such as laundry and valet services, in hotel and receiving and answering requests for
information. The vocational counselor confirmed online that the positions were available in
appellant’s commuting area on a full- or part-time basis.
On May 6, 2009 the vocational rehabilitation counselor reported that there had been a
slight decline in the number of available administrative and support positions within a reasonable
commuting distance for the period March 2008 to March 2009.
In an August 14, 2009 report, Dr. Taffet indicated that appellant was unable to walk,
stand or sit for prolonged periods. He opined that appellant was capable of light/sedentary work
with frequent breaks, changing positions and the following permanent restrictions: three hours
of sitting; one hour of walking and standing; no twisting, bending, stooping or climbing; two
hours of operating a motor vehicle at work; one hour of pushing and pulling no more than 40
pounds and one hour of lifting no more than 10 pounds.

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By letter dated August 31, 2009, OWCP referred appellant to Dr. Robert A. Smith, a
Board-certified orthopedic surgeon, for a second opinion examination. In a report dated
September 14, 2009, Dr. Smith reviewed appellant’s history of injury and treatment and
determined that his conditions had resolved. He advised that appellant could not go back to
work in a regular-duty capacity given the finding of nonindustrial degenerative disease in the
spine. Dr. Smith found that appellant could return to permanent light-duty work with lifting
limited to 10 pounds and with the chance to sit or stand at will. He concluded that appellant
reached maximum medical improvement in August 2008 when a magnetic resonance imaging
(MRI) scan showed his right paracentral disc protrusion at L5-S1 had resolved.
On October 15, 2009 OWCP found a conflict in medical opinion between Dr. Taffet and
Dr. Smith and referred appellant to Dr. Levitsky for an impartial medical examination. The
record contains an October 15, 2009 MEO23 IFECs report, which states that appellant’s referee
appointment was scheduled with Dr. Levitsky. The record also contains bypass forms for two
other Board-certified orthopedic surgeons, noting that they were bypassed because OWCP was
unable to contact them or because they did not accept Department of Labor patients. Dr. Ingemi
was bypassed because he did not accept Department of Labor patients and Dr. Seth Silver was
bypassed because OWCP was unable to locate a telephone number to contact him.
OWCP further included a screen shot that included a list of physician’s, including
Dr. Levitsky.
In his November 17, 2009 report, Dr. Levitsky reviewed appellant’s medical history and
conducted a physical examination. He found forward flexion of the lumbar spine was about 60
degrees, extension was 20 degrees and side bending was 20 degrees bilaterally. Straight leg
raising on the right side at 60 degrees caused pain in appellant’s right buttock and he had global
hypesthesias in his entire right leg. Dr. Levitsky diagnosed lumbar spine sprain/strain, posttraumatic low back pain, herniated L5-S1 lumbar disc, radiculopathy, right lower extremity and
severe degenerative disc disease, L5-S1. He opined that appellant was unable to perform his
regular work duties and would never be able to return to gainful employment performing heavy
lifting. Dr. Levitsky concluded that appellant had reached maximum medical improvement. He
agreed with Dr. Taffet’s opinion that appellant could perform either sedentary or light-duty type
work and further opined that he would never be able to perform medium or heavy-duty work.
In a March 11, 2010 report, Dr. Levitsky indicated that he had been provided with a
surveillance video of appellant dated February 27, 2007. He stated that the video clearly
demonstrated appellant’s ability to get down on his hands and knees and look under his car.
Appellant was shown kneeling, squatting and bending over cleaning his car, especially the tires.
According to Dr. Levitsky, the video did not demonstrate any obvious pain on appellant’s face
when he was bending over. He opined that appellant was capable of doing work at a higher level
from sedentary to light and could probably perform medium-duty work.
In a May 4, 2010 report, Dr. Michael Barrett, an osteopath and orthopedic surgeon,
opined that appellant was unable to work as a letter carrier. He found that appellant had reached
maximum medical improvement and could perform sedentary work with the following
permanent restrictions: eight hours of sitting; half an hour of walking, standing and operating a
motor vehicle at work; and no twisting, bending or stooping.

3

On June 21, 2010 the vocational rehabilitation counselor reported that there had been a
slight increase in the number of available service-providing positions within a reasonable
commuting area as of January 2010 and identified an information clerk position with an average
weekly salary of $402.00 per week.
On June 25, 2010 OWCP received a rehabilitation plan and award, including the
information clerk position, signed by appellant on June 21, 2010.
On June 25, 2010 OWCP requested that the employing establishment confirm appellant’s
grade and step level as of January 26, 2002 and the current salary for a letter carrier. On June 28,
2010 the employing establishment confirmed that on January 26, 2002 he was a Grade 1, Step B
earning $36,013.00 per year and that the current salary would be $46,301.00 per year.
In an August 25, 2010
positions for appellant. On
decrease in the number of
August 2010, however, jobs
appellant’s home.

report, the vocational rehabilitation counselor identified available
September 30, 2010 she reported that there had been a slight
available service-providing positions for the period June to
were available within a reasonable commuting distance from

On October 6, 2010 OWCP issued a notice of proposed reduction of benefits finding that
appellant was capable of earning wages as an information clerk at the rate of $402.00 per week.
It afforded him 30 days in which to submit evidence or argument regarding his capacity to earn
wages in the position described.
Subsequently, appellant’s attorney submitted an October 18, 2010 statement and an
October 26, 2010 report by Dr. Barrett opining that appellant could return to a sedentary-type
job.
By decision dated January 14, 2011, OWCP finalized the proposed reduction of
compensation benefits finding that appellant had the capacity to earn wages as an information
clerk.
By letter dated January 21, 2011, appellant’s attorney requested a hearing, which was
held before an OWCP hearing representative on May 19, 2011. Prior to the hearing, OWCP
received an April 13, 2011 report by Dr. Kenneth H. Rogers, an osteopath Board-certified in pain
medicine and anesthesiology, who reported that he performed right L5 and S1 transforaminal
injection in the past and reviewed an MRI scan dated September 10, 2009, which showed
degenerative disc disease at L5-S1 with left foraminal disc protrusion at L4-5 and annular tear.
Upon physical examination, Dr. Rogers found that appellant’s motor strength was limited by
pain and suggested a new MRI scan be performed as an initial step towards further treatment. In
a May 4, 2011 progress report, he reviewed an MRI scan of the lumbar spine dated April 20,
2011, which showed L4-5 intervertebral foraminal stenosis and lateral annual tear. There was
severe loss of the L5-S1 disc with herniation and intervertebral foraminal stenosis bilaterally.
There were Schmorl’s nodes at L2-3 and L3-4 and the inferior end plate of T12, representing an
end plate failure. Dr. Rogers recommended that transforaminal injections be performed
bilaterally.

4

By decision dated July 28, 2011, an OWCP hearing representative affirmed the
January 14, 2011 wage-earning capacity decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3
Section 8115(a) of FECA,4 provides in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by his actual earnings if his actual
earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings do not
fairly and reasonably represent wage-earning capacity or if the employee has no actual earnings,
his wage-earning capacity is determined with due regard to the nature of his injury, his degree of
physical impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.5 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.6 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.7 In
determining an employee’s wage-earning capacity, OWCP may not select a makeshift or odd-lot
position or one not reasonably available on the open labor market.8
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position, listed in the DOT or otherwise available in the open
market, that fits that employee’s capabilities with regard to his physical limitations, education,
age and prior experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
service or other applicable service. Finally, application of the principles set forth in Albert C.
Shadrick9 will result in the percentage of the employee’s loss of wage-earning capacity. The
basic rate of compensation paid under FECA is 66 2/3 percent of the injured employee’s monthly
pay.10

3

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

4

5 U.S.C. § 8115.

5

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

6

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

7

Id.

8

See Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

9

5 ECAB 376 (1953).

10

See Karen L. Lonon-Jones, 50 ECAB 293 (1999).

5

In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.11
ANALYSIS
The Board finds that the weight of the evidence of record establishes that appellant had
the requisite physical ability, skill and experience to perform the position of information clerk.
On October 15, 2009 OWCP found a conflict in medical opinion between Dr. Taffet, who
opined that appellant was capable of sedentary work and Dr. Smith, who also opined that
appellant could return to light-duty work but who found that appellant’s conditions had resolved.
It referred appellant to Dr. Levitsky, a Board-certified orthopedic surgeon, for an impartial
medical examination. In his November 17, 2009 report, Dr. Levitsky diagnosed lumbar spine
sprain/strain, post-traumatic low back pain, herniated L5-S1 lumbar disc, right lower extremity
radiculopathy and severe degenerative disc disease at L5-S1. He opined that appellant could
perform either sedentary or light-duty type work and further opined that he would never be able
to perform medium or heavy-duty work. However, on March 11, 2010, Dr. Levitsky viewed a
surveillance video of appellant dated February 27, 2007, which clearly demonstrated his ability
to get down on his hands and knees, kneel, squat and bend over. According to him, the video did
not demonstrate any obvious pain on appellant’s face when he was bending over and
Dr. Levitsky opined that appellant was capable of doing work at a higher level from sedentary to
light and could probably perform medium-duty work.
On January 28, 2009 the vocational rehabilitation counselor stated that she had identified
three jobs that appellant would be capable of performing and which were available in the area.
One of them was as information clerk, DOT No. 237.367-022, with an average weekly salary of
$402.00 per week. This position was identified as sedentary and was reasonably available in
appellant’s commuting area on a full or part-time basis.
In support of his claim, appellant provided reports from Dr. Barrett and Dr. Rogers.
However, neither physician noted that they had reviewed the duties required of an information
clerk. These reports merely provided findings and did not offer any opinion as to whether
appellant was capable of performing the duties required for the selected position of an
information clerk. These reports do not establish that he was unable to perform the duties of an
information clerk on a full- or part-time basis.
The evidence establishes that appellant was capable of performing the duties required for
the selected position of an information clerk. As noted, Dr. Levitsky advised that appellant was
capable of doing work at a higher level from sedentary to light and could probably perform
medium-duty work. The vocational rehabilitation counselor determined that appellant was able
11

See John D. Jackson, 55 ECAB 465 (2004).

6

to perform the position of an information clerk. She provided a job description which was
comprised of sedentary requirements related to the receiving and answering requests for
information and determined that the position fell within appellant’s medical restrictions. The
counselor noted that the position was available on a full- or part-time basis within his commuting
area and that the wage of the position was $402.00 per week.
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment and age and employment
qualifications, in determining that the position of information clerk represented his wage-earning
capacity.12 The evidence of record establishes that appellant had the requisite physical ability,
skill and experience to perform the duties and that the position was reasonably available within
the general labor market of his commuting area. The wage information as set forth by the
vocational counselor indicated that the wages for the position of information clerk was $402.00
per week. Applying the Shadrick13 principles, the current pay rate for the date-of-injury position
is compared with the wage-earning capacity of $402.00 per week and a percentage of loss of
wage-earning capacity is determined. OWCP determined that appellant had a 45 percent loss of
wage-earning capacity and his compensation was reduced to a net compensation of $1,366.68
every four weeks. The Board finds that OWCP met its burden of proof to reduce his
compensation in this case.
On appeal, appellant’s attorney contends that the vocational rehabilitation counselor
changed her opinion regarding the number of available information clerk positions and failed to
confirm that the positions were reasonably available to appellant. The record contains several
reports from the vocational rehabilitation counselor identifying available positions for appellant.
On September 30, 2010 the vocational rehabilitation counselor reported that there had been a
slight decrease in the number of available service-providing positions for the period June to
August 2010, but noted that jobs were available within a reasonable commuting distance from
appellant’s home. Although she reported on the periodic increase and decrease of available jobs,
she did not fail to confirm that there were positions reasonably available to appellant within the
commuting area.14 Therefore, the Board finds that the attorney’s argument is not substantiated.
Appellant’s attorney further contends that OWCP improperly terminated appellant’s
compensation based on the reports of Dr. Levitsky who was not properly selected from the PDS.
Specifically, counsel argues that Dr. Ingemi was selected from the PDS but no reason was
provided on the bypass as to why he could not conduct the referee medical examination. OWCP
has an obligation to verify that it selected Dr. Levitsky in a fair and unbiased manner. It
maintains records for this very purpose.15 The current record contains an October 15, 2009
12

See James M. Frasher, 53 ECAB 794 (2002).

13

See supra note 9.

14

In determining what constitutes suitable work for a particular disabled employee, OWCP considers the
employee’s current physical limitations, whether the work is available within the employee’s demonstrated
commuting area, the employee’s qualifications to perform such work and other relevant factors. 20 C.F.R.
§ 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).
15

See M.A., Docket No. 07-1344 (issued February 19, 2008).

7

MEO23 IFECs report, which states that appellant’s referee appointment was scheduled with
Dr. Levitsky. OWCP further included a screen shot that included a list of physicians, including
Dr. Ingemi and Dr. Levitsky. The record supports that Dr. Ingemi was also selected from the
PDS. Contrary to counsel’s contention, the bypass note specifically excluded him on the basis
that he did not accept Department of Labor patients. OWCP provided a reasonable explanation
for bypassing Dr. Ingemi. There is no evidence that Dr. Ingemi was improperly bypassed.16 The
Board finds that OWCP provided documentation regarding Dr. Levitsky’s selection. The Board
has placed great importance on the appearance as well as the fact of impartiality and only if the
selection procedures which were designed to achieve this result are scrupulously followed may
the selected physician carry the special weight accorded to an impartial specialist. As OWCP
has met its affirmative obligation to establish that it properly followed its selection procedures,
the Board finds that the attorney’s argument is not substantiated.17
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages in the constructed position of information clerk.

16

See E.M., Docket No. 11-1373 (issued February 3, 2012).

17

Cf. H.W., Docket No. 10-404 (issued September 28, 2011) (where the MEO23 IFECs report was the only
documentation of the scheduled impartial medical specialist examination. There were no screen shots substantiating
the selection of the impartial medical specialist. The Board remanded the case by an order for selection of another
impartial medical specialist and the issuance of an appropriate decision following any further development).

8

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 17-1483
Issued: December 5, 2017

Case Submitted on the Record

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

JURISDICTION
On June 21, 2017 appellant filed a timely appeal from an April 4, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury on March 15, 2016 in the performance of duty, as alleged.
FACTUAL HISTORY
On April 27, 2016 appellant, then a 58-year-old enforcement removal assistant, filed a
traumatic injury claim (Form CA-1) alleging that on March 15, 2016 she injured her left leg
when she stepped in a space between concrete pads on a sidewalk approaching the entrance to
1

5 U.S.C. § 8101 et seq.

her work location. The injury occurred at 11:00 a.m. and her duty hours were from 8:00 a.m. to
4:30 p.m. Appellant did not stop work. The employing establishment indicated on the claim
form that she was not in the performance of duty at the time of the incident as she was “walking
into [the] building.”
A May 3, 2016 x-ray of the lumbar spine showed status post interbody fusion at L2-3 and
L5-S1 and degenerative disc disease. On May 17, 2016 a nurse practitioner noted that appellant
had left leg pain and referred her for physical therapy.2 A June 20, 2016 magnetic resonance
imaging (MRI) scan revealed a suspected left L1-2 posterior disc protrusion impressing the
thecal sac with bilateral foraminal stenosis, retrolisthesis at T12 to L1 and L3-4, anterolisthesis
of L5 in relation to S1, marked stenosis at L1 through S1, disc bulges at multiple levels, and
degenerative changes.
OWCP, by letter dated February 8, 2017, informed appellant that it had paid a limited
amount of medical expenses as her claim initially appeared minor and was uncontroverted. It
was now formally adjudicating her claim. OWCP requested that appellant submit a
comprehensive report from her attending physician addressing the causal relationship between
any diagnosed condition and the alleged work incident.
In a report dated March 2, 2017, Dr. Joshua Zeidler, an osteopath, related that appellant
was initially treated on May 3, 2016 for “complaints of leg pain occurring from an injury
acquired at work a month or so prior to the visit.” The diagnosis was lumbago with left sciatica.
Dr. Zeidler reviewed the results of diagnostic testing and opined that appellant’s “injury has most
likely exacerbated her degenerative disc disease.”
By decision dated April 4, 2017, OWCP denied appellant’s traumatic injury claim. It
found that she had not submitted sufficient medical evidence to establish that she sustained a
diagnosed condition due to the accepted March 15, 2016 work incident.
On appeal appellant contends that she submitted a detailed medical report supporting
causation.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.3 In order to
be covered, an injury must occur at a time when the employee may reasonably be said to be
engaged in her master’s business, at a place where she may reasonably be expected to be in
connection with her employment and while she was reasonably fulfilling the duties of her
employment or engaged in doing something incidental thereto.4 For an employee with fixed
hours and a fixed workplace, an injury that occurs on the employing establishment premises
when the employee is going to or from work, before or after working hours or at lunch time, is
2

Appellant underwent physical therapy in June and July 2016.

3

5 U.S.C. § 8102(a).

4

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

2

compensable.5 However, that same employee with fixed hours and a fixed workplace would
generally not be covered when an injury occurs off the employing establishment premises while
traveling to or from work.6 The reason for the distinction is that the latter injury is often merely
a consequence of the ordinary, nonemployment hazards of the journey itself which are shared by
all travelers.7
The employing establishment premises may include all the property owned by the
employing establishment.8 Although it does not have ownership and control of the place where
an injury occurred, the locale may nevertheless be considered part of the premises. 9 The
proximity exception to the premises rule states that under certain circumstances the industrial
premises are constructively extended to those hazardous conditions which are proximate to the
premises and may, therefore, be considered as hazards of the employing establishment.10
ANALYSIS
The Board finds that the case is not in posture for decision. Appellant contended that she
sustained an injury to her left leg on March 15, 2016 at 11:00 a.m. when she stepped into a space
on a sidewalk between concrete pads while walking with a coworker. Her duty hours were from
8:00 a.m. to 4:30 p.m. The employing establishment controverted the claim, contending that
appellant was not in the performance of duty at the time of the incident as she was walking into
the building. OWCP did not develop this aspect of her claim to determine whether she was in
the performance of duty at the time of the alleged March 15, 2016 employment incident.
A claimant seeking compensation under FECA has the burden to establish the essential
elements of her claim by the weight of the evidence, including that she sustained an injury in the
performance of duty.11 Nonetheless, proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter. While the claimant has the burden to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence, particularly
when such evidence is of the character normally obtained from the employing establishment or
other governmental source.12 The Board will remand the case for OWCP to develop the factual
evidence and determine whether appellant was in the performance of duty at the time of the
March 15, 2016 incident.13 Following such development as deemed necessary, it shall issue a de
novo decision on appellant’s claim.
5

Id.; Denise A. Curry, 51 ECAB 158, 160 (1999).

6

Idalaine L. Hollins-Williamson, 55 ECAB 655, 658 (2004).

7

Id.

8

See Denise A. Curry, supra note 5.

9

Id.

10

D.M., Docket No. 13-535 (issued June 6, 2013).

11

See Elaine Pendleton, 40 ECAB 1143 (1989).

12

See Shirley A. Temple, 48 ECAB 404 (1997); Mary A. Wright, 48 ECAB 240 (1996).

13

See F.L., Docket No. 15-1172 (issued October 2, 2015).

3

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 5, 2017
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blairsville, GA, Employer
__________________________________________

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

Docket No. 07-1906
Issued: January 23, 2008

Case Submitted on the Record

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

JURISDICTION
On April 16, 2007 appellant filed a timely appeal from a November 6, 2006 decision of
the Office of Workers’ Compensation Programs that denied her traumatic injury claim.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.

1

Appellant also requested review of a March 14, 2007 Office decision that denied her request for reconsideration
without conducting a merit review. This decision, however, is null and void as the Board and the Office may not
simultaneously have jurisdiction over the same issue. On December 7, 2006 appellant filed a timely request for
review by the Board. The appeal was docketed as number 07-447. By correspondence dated February 27, 2007,
appellant requested that the Board dismiss her appeal so that she might submit additional evidence to the Office with
a request for reconsideration. The Board’s order dismissing appellant’s appeal was issued on April 30, 2007. At the
time the Office issued its March 14, 2007 decision denying appellant’s request for reconsideration, appeal number
07-445 was still pending. The Board dismissed appellant’s appeal on April 30, 2007. As the Board still retained
jurisdiction over appellant’s appeal, the Office could not issue a decision on appellant’s request for reconsideration
as this pertained to the same issue that was before the Board in appeal number 07-445. See Terry L. Smith, 51
ECAB 182 (1999); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On September 19, 2006 appellant, then a 53-year-old rural route carrier, filed a traumatic
injury claim alleging that she pulled a muscle in her right arm and sustained bruises to her arms
and legs when, on September 18, 2006 a motorcyclist lost control and struck her postal delivery
vehicle. She stopped work on October 10, 2006.
On September 26, 2006 the Office requested additional information concerning
appellant’s claim. It advised appellant that it was crucial to her claim that she submit a
physician’s opinion explaining how the employment incident caused or aggravated the claimed
injury.
By decision dated November 6, 2006, the Office denied appellant’s claim on the grounds
that there was no medical evidence establishing a causal relationship between the accepted
employment incident and a diagnosed medical condition.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.4
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the

2

Following the Office’s denial of the claim, appellant submitted a November 7, 2006 note, in addition to
examination forms from Marilyn Williams, a nurse practitioner.
3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

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

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
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.8 The
opinion of the physician must be based on a complete factual and medical background of the
claimant9 and must be one of reasonable medical certainty10 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.11
ANALYSIS
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty. The evidence establishes that on
September 18, 2006, a motorcycle struck appellant’s postal vehicle. However, the Board finds
that appellant has not submitted medical evidence supporting that the established employment
incident caused a personal injury.
On September 26, 2006 the Office advised appellant that it was crucial to her claim that
she submit a physician’s opinion explaining how the employment incident caused or aggravated
the claimed injury. However, the record does not reflect that, prior to the Office’s November 6,
2006 decision appellant submitted medical evidence from a physician addressing how the
September 18, 2006 work incident caused or aggravated appellant’s claimed injury. As noted
above, to meet her burden of proof, appellant must submit medical evidence establishing that the
employment incident caused an injury.
Consequently, appellant has not met her burden of proof in establishing her claim
because she has not submitted medical evidence from a physician which explains how the
September 18, 2006 work incident caused or aggravated her claimed injury.12

7

Id.

8

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

Following the Office’s November 6, 2006 decision, appellant submitted a nurse’s report. Also, on the present
appeal before the Board, she submitted medical evidence from a physician. The Board, however, notes that it
cannot consider this evidence for the first time on appeal because the Office did not consider this evidence in
reaching a final decision. The Board’s review is limited to the evidence in the case record at the time the Office
made its final decision. 20 C.F.R. § 501.2(c). This decision of the Board does not preclude appellant from
submitting additional evidence to the Office as part of a reconsideration request.

3

CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
NATIONAL ARCHIVES & RECORDS
ADMINISTRATION, Suitland, MD, Employer
__________________________________________

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

Docket No. 18-0644
Issued: November 15, 2018

Case Submitted on the Record

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

JURISDICTION
On February 5, 2018 appellant filed a timely appeal from January 3, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.1
ISSUE
The issue is whether appellant has met his burden of proof to establish total disability
beginning July 17, 2017 causally related to his May 17, 2017 employment injury.

The Board notes that appellant submitted new evidence with his appeal. However, “The Board’s review of a case
is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not
before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this evidence for the first time on appeal.
1

FACTUAL HISTORY
On June 6, 2017 appellant, then a 45-year-old archives technician, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2017 he sustained a low back injury as a result of
pulling heavy boxes weighing up to 65 pounds and placing them on a platform while on a ladder
at work. He stopped work on the date of injury. OWCP accepted the claim on July 27, 2017 for
strain of the back wall of the thorax muscle and tendon. Appellant initially received continuation
of pay benefits. OWCP paid wage-loss compensation and medical benefits for intermittent periods
of disability commencing July 17, 2017.
In a June 25, 2017 work capacity evaluation (Form OWCP-5c), Dr. Girish Rao, an
internist, advised that, while appellant could not return to his usual job, he could work eight hours
a day with certain restrictions as of June 28, 2017. He related that appellant’s restrictions would
remain in place from June 28 until July 12, 2017.
In a certificate of disability dated August 3, 2017, Dr. Dennis A. Carlini, a Board-certified
orthopedic surgeon, noted that appellant was disabled through August 24, 2017.
On September 15, 2017 appellant filed two claims for compensation (Form CA-7) for leave
without pay (LWOP) for the period July 17 to September 15, 2017.
By development letter dated September 18, 2017, OWCP advised appellant that additional
medical evidence was necessary to support his claim for disability benefits. It afforded him 30
days to submit the necessary evidence.
In a September 7, 2017 attending physician’s report (Form CA-20), Dr. Carlini diagnosed
disc herniation at L5 and indicated, by checking a box marked “yes,” that the diagnosed condition
was caused or aggravated by an employment activity. He noted that appellant had no issues prior
to the event. Dr. Carlini indicated that appellant was totally disabled from work from August 4 to
October 5, 2017.
On September 29, 2017 appellant filed another Form CA-7 for compensation for LWOP
for the period September 18 to 29, 2017.
On October 3, 2017 OWCP referred appellant, together with a statement of accepted facts
(SOAF), the medical record, and a list of questions, to Dr. Matthew Drake, a Board-certified
orthopedic surgeon, to determine whether he had residuals from his accepted conditions and to
determine if he had continuing disability. The examination was scheduled for October 31, 2017
at 10:00 a.m. On November 1, 2017 OWCP was advised by its medical scheduler that appellant
did not keep the scheduled appointment with Dr. Drake.
On October 16, 2017 appellant filed a claim for compensation (Form CA-7) for LWOP for
the period September 30 to October 10, 2017.
In an October 9, 2017 letter, Dr. Carlini noted a history of appellant’s medical treatment.
He noted diagnoses of left-sided L5 radiculopathy and a central disc rupture at L4-5 and L5-S1.
Dr. Carlini opined that appellant’s conditions were a direct result of the May 17, 2017 work injury.

2

In a November 1, 2017 notice, OWCP proposed to suspend appellant’s wage-loss
compensation and medical benefits as he failed to appear for the examination scheduled for
October 31, 2017 with Dr. Drake. On November 9 and 21, 2017 appellant apologized to OWCP
for missing his appointment with Dr. Drake and expressed his intent to reschedule the examination.
In a work capacity evaluation (Form OWCP-5c) dated November 20, 2017, Dr. Carlini
noted appellant’s accepted condition of strain of the muscle and tendon of the back wall of the
thorax and advised that he could not perform his usual work or work with restrictions. He further
advised that appellant had not reached maximum medical improvement (MMI).
Appellant, on November 27, 2017, filed another claim for compensation (Form CA-7) for
LWOP for the period October 11 to November 24, 2017.
OWCP, by letter dated December 5, 2017, advised appellant that his second opinion
evaluation had been rescheduled for December 5, 2017 with Dr. Willie Thompson, a Boardcertified orthopedic surgeon. Appellant presented for the appointment.
In December 5, 2017 report, Dr. Thompson reviewed the SOAF and medical record. He
noted appellant’s complaint of localized low back pain without radiculopathy and that lumbar
epidural steroid injections had been recommended. Dr. Thompson provided a review of symptoms
and findings on physical examination. He noted that appellant was a well-developed, wellnourished male who was in no acute distress. Dr. Thompson noted that he was alert and oriented.
Appellant ambulated with a normal tandem gait. There was no evidence of a limp. On
examination of the lumbar spine, Dr. Thompson reported full range of motion. There was no
tenderness or paraspinous muscle spasms. Hee1-walking and toe-walking were performed
adequately. Straight leg raising was negative bilaterally. No motor or sensory deﬁcits were noted.
The deep tendon reﬂexes were intact and equal bilaterally. The dorsalis pedis pulse was 3+ and
regular. Manual muscle testing revealed strength to be graded at 5/5. There was normal muscle
bulk and tone. Dr. Thompson noted that he did not have imaging studies available for review. He
diagnosed soft tissue sprain/strain-type injury to the lower back. Dr. Thompson indicated that
appellant had received adequate treatment. He saw no objective indication for need for additional
treatment or diagnostic testing. Dr. Thompson advised that there was no evidence of continuing
residuals of the May 17, 2017 employment injury. There were nonindustrial factors to consider.
Dr. Thompson related that appellant’s prognosis was good. He opined that the recommended
steroid injections were neither indicated nor would be beneficial. Dr. Thompson, in a Form
OWCP-5c dated December 5, 2017, indicated that appellant could perform his usual job without
restriction. He also indicated that appellant had reached MMI.
By decision dated January 3, 2018, OWCP denied appellant’s claim for disability
compensation commencing July 17, 2017. It found that the weight of the medical evidence rested
with Dr. Thompson’s opinion and concluded that appellant submitted insufficient medical
evidence to establish that the claimed disability was related to the accepted May 17, 2017
employment injuries.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish essential
elements of his or her claim by the weight of the evidence.2 For each period of disability claimed,
the employee has the burden of proof to establish disability for work as a result of the accepted
employment injury.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.4 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a physician’s
statements regarding an employee’s ability to work consist only of repetition of the employee’s
complaints that he hurts too much to work, without objective findings of disability being shown,
the physician has not presented a medical opinion on the issue of disability or a basis for payment
of compensation.5 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 employees to self-certify their
disability and entitlement to compensation.6
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 Rationalized medical evidence is medical evidence
which includes a physician’s detailed medical opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.8 Neither the fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9

2

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

3

See Amelia S. Jefferson, id.

4

See Fereidoon Kharabi, 52 ECAB 291 (2001); see also A.C., Docket No. 17-1296 (issued February 15, 2018).

5

Id.

6

Id.

7

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

8

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

9

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

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish employmentrelated total disability commencing July 17, 2017 causally related to his accepted employment
injury.10
Appellant was initially treated by Dr. Rao. In a June 25, 2017 report, Dr. Rao related that
appellant could return to work on June 28, 2017 with restrictions. He also related that these
restrictions would be in place until July 12, 2017. Dr. Rao did not report that appellant would be
disabled after July 17, 2017. As previously noted, OWCP is not required to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability for
which compensation is claimed.11 As Dr. Rao’s report does not address appellant’s disability
status as of July 17, 2017 it is insufficient to establish appellant’s claim for wage-loss benefits
commencing on that date.
Appellant relies upon the medical opinions of Dr. Carlini to establish that his disability
from work during the claimed period was due to his accepted May 17, 2017 work injuries. In
several reports, Dr. Carlini examined appellant and found that he had lumbar radiculopathy, that
the condition was causally related to the May 17, 2017 employment injury, and that he was unable
to work during an intermittent period August 4 to November 20, 2017. The Board notes that
OWCP has not accepted the diagnosis of lumbar radiculopathy as causally related to the accepted
May 17, 2017 employment injuries. OWCP has only accepted strain of the muscle and tendon of
the back wall of the thorax and a lumbar strain in this case. For conditions not accepted by OWCP
as being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relationship.12 None of the reports from Dr. Carlini contain rationale
explaining how this condition had been caused or aggravated by the accepted May 17, 2017
employment injuries. Moreover, Dr. Carlini did not offer a specific medical opinion addressing
whether appellant’s disability from work during the claimed period was causally related to the
accepted work injuries.13 Thus, for these reasons, his reports are insufficient to meet appellant’s
burden of proof.
In his December 5, 2017 report, Dr. Thompson, OWCP’s second opinion physician,
opined that appellant had no residuals of the May 17, 2017 employment injuries and he had
reached MMI, that he could perform his usual job without restriction, and that no further medical
treatment was necessary. He examined appellant and noted full range of motion of the lumbar
spine. Dr. Thompson found no tenderness or paraspinous muscle spasms. He reported that heelwalking and toe-walking were performed adequately, that straight leg raising was negative
bilaterally, and no motor or sensory deﬁcits were noted. Dr. Thompson further reported that deep
tendon reﬂexes were intact and equal bilaterally and that the dorsalis pedis pulse was 3+ and
10

Alfredo Rodriguez, 47 ECAB 437 (1996).

11

Supra note 5.

12

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
13

Id.

5

regular. He related that manual muscle testing revealed strength to be graded at 5/5 and that there
was normal muscle bulk and tone. Dr. Thompson diagnosed soft tissue sprain/strain-type injury
to the lower back for which appellant received adequate treatment. He determined that there was
no evidence of any residuals of the May 17, 2017 employment injury or objective indication for
need for additional treatment or diagnostic testing. Dr. Thompson concluded that appellant’s
prognosis was good.
The Board finds that Dr. Thompson’s report represents the weight of the medical evidence
and establishes that appellant was not totally disabled as of the date of his examination due to his
accepted May 17, 2017 employment injury. Dr. Thompson’s opinion is based on a proper factual
and medical history as he reviewed the SOAF and medical record. He also related his
comprehensive examination findings in support of his opinion that appellant could work without
restrictions.
As noted, appellant must submit reasoned medical evidence directly addressing the specific
dates of disability for work for which he claims compensation.14 He did not provide medical
evidence containing a rationalized opinion supporting that he could not work beginning July 17,
2017 due to his accepted conditions, and thus did not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
commencing July 17, 2017 causally related to his May 17, 2017 employment injury.

14

See K.A., Docket No. 16-0592 (issued October 26, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the January 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2018
Washington, DC

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

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

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

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