United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, SOUTHEASTERN
POSTAL & DISTRIBUTION FACILITY,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 07-1672
Issued: January 17, 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 June 5, 2007 appellant filed a timely appeal from a January 8, 2007 decision of the
Office of Workers’ Compensation Programs denying a schedule award increase. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained greater than a 10 percent
impairment of the right upper extremity, for which she received a schedule award. On appeal,
appellant asserts that the opinion of an impartial medical examiner, Dr. James M. Nutt, III, a
Board-certified orthopedic surgeon, is insufficient to represent the weight of the medical
evidence. She contended that Dr. Nutt failed to measure adduction, flexion and extension of the
shoulder or provide measurements substantiating his conclusion that there was no muscular
atrophy.

FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision dated January 2,
2003, the Board set aside a decision of the Office dated November 21, 2000 and a decision
dated July 13, 2001 and finalized July 17, 2001, finding that appellant sustained a 10 percent
impairment of the right upper extremity due to February 19, 1999 resection of the distal clavicle
precipitated by accepted bicipital tendinitis of the right shoulder and a right rotator cuff tear. The
Board found a conflict of medical opinion between Dr. David Weiss, an attending osteopath,
who opined that appellant had a 24 percent permanent impairment of the right upper extremity,
and an Office medical adviser, for the government, who found a 10 percent impairment of the
right upper extremity. The Board remanded the case for appointment of an impartial medical
examiner to resolve the conflict of opinion. The law and the facts of the case as set forth in the
prior decision and order are hereby incorporated by reference.
1

In a March 12, 2003 letter, the Office referred appellant, the medical record and a
statement of accepted facts to Dr. Andrew S. Frankel, a Board-certified orthopedic surgeon, for
an impartial medical examination. He found that appellant had a one percent impairment of the
right upper extremity to a loss of 10 degrees of internal rotation of the shoulder.
By decisions dated June 18, 2003 and July 21, 2004,2 the Office found that appellant did
not have more than a 10 percent permanent impairment of the right upper extremity, based on
Dr. Frankel’s opinion as impartial medical examiner.
In a July 27, 2004 letter, appellant requested an oral hearing, held on April 7, 2005. At
the hearing, appellant, through her attorney representative, asserted that Dr. Frankel’s opinion
was flawed.
By decision dated and finalized June 27, 2005, the Office hearing representative vacated
the June 18, 2003 decision. The hearing representative found that Dr. Frankel’s report was
insufficiently rationalized to represent the weight of the medical evidence. The hearing
representative directed the appointment of a new impartial medical examiner to resolve the
conflict of medical opinion.3
On September 2, 2005 the Office referred appellant, the medical record and a statement
of accepted facts to Dr. Nutt, a Board-certified orthopedic surgeon, for a referee medical
examination. Dr. Nutt submitted an October 13, 2005 report reviewing the medical record and
statement of accepted facts. He observed no atrophy in the right shoulder, no restricted motion
1

Docket No. 02-117 (issued January 2, 2003).

2

The Office reissued the June 18, 2003 decision on July 21, 2004 as the Office failed to provide appellant with a
copy of the decision.
3

In a July 12, 2005 letter, appellant requested to participate in the selection of the impartial medical specialist. In
a July 22, 205 letter, the Office advised appellant that impartial medical examiners were selected on a rotational
system. The Office stated that if appellant had specific objections to the specialist selected, her reasons would be
duly considered. In a September 15, 2005 letter, appellant again requested to participate in selection of the impartial
medical examiner but made no objections to Dr. Nutt.

2

in abduction, internal rotation or external rotation and pain with abduction of the right shoulder
beyond 160 degrees. Dr. Nutt noted that appellant was able to “actively and strongly abduct her
right arm to 180 degrees to get her arm to her ear.” He did not provide measurements or
observations regarding adduction, flexion and extension of the right shoulder. Dr. Nutt opined
that appellant had “no restriction of strength, range of motion or nerve function” in the right arm.
He stated that appellant’s discomfort at extremes of abduction were due to post-surgical
degeneration in the supraspinatus tendon. Dr. Nutt opined that, according to Figure 18-1 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment,4 appellant
had a pain-related impairment, classified by Table 18-3 as a mild pain disorder.5 He noted that,
assuming that the “impingement pain cause[d] a functional loss of abduction to approximately
160 degrees,” this would equal a 1 percent upper extremity impairment according to Figure
16-43, page 477.6
By decision dated November 2, 2005, the Office found that appellant had not established
that she sustained greater than a 10 percent permanent impairment of the right upper extremity,
for which she received a schedule award. The Office found that the weight of the medical
evidence rested with Dr. Nutt, who submitted a well-rationalized opinion explaining that
appellant had only a one percent impairment of the right upper extremity, less than the 10
percent previously awarded.
In a November 8, 2005 letter, appellant requested an oral hearing.
By decision dated and finalized January 25, 2006, the Office hearing representative
remanded the case. The hearing representative found that Dr. Nutt’s opinion was insufficient to
resolve the conflict. The hearing representative directed that the Office contact Dr. Nutt, request
that he review additional medical evidence, provide his opinion regarding surgery performed and
discuss Dr. Weiss’ interpretation of the procedure and its impact on appellant’s impairment.
In a March 9, 2006 letter, the Office requested that Dr. Nutt review the medical record
and discuss the impact of the February 19, 1999 surgery on appellant’s condition. The Office
also requested that Dr. Nutt clarify his previous opinion regarding the percentage of permanent
impairment. The Office emphasized that there was a conflict of medical opinion between
Dr. Weiss and the Office medical adviser.
In a March 17, 2006 letter, Dr. Nutt reviewed the surgical report and opined that
appellant underwent an “arthroscopic subacromial bursectomy and an acriomioplasty. In this
procedure, the undersurface of the acromion bone [was] shaved a few millimeters…. This [was]
not an arthroplasty.” Dr. Nutt therefore disagreed with Dr. Weiss’ opinion that appellant had a
24 percent permanent impairment of the right arm due to shoulder arthroplasty. He opined that
4

Figure 18-1, page 574 of the fifth edition of the A.M.A., Guides is entitled, “Algorithm for Rating Pain-Related
Impairment in Conditions Associated with Conventionally Ratable Impairment.”
5

Table 18-3, page 575 of the fifth edition of the A.M.A., Guides is entitled, “Impairment Classifications Due to
Pain Disorders.”
6

Figure 16-43, page 477 of the fifth edition of the A.M.A., Guides is entitled, “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Abduction and Adduction of Shoulder.”

3

according to Table 16-27, page 506 of the fifth edition of the A.M.A., Guides, resection
arthroplasty of the distal clavicle equaled a 10 percent impairment of the upper extremity.
However, appellant did not undergo resection of the distal clavicle. Dr. Nutt concluded that his
schedule award evaluation was “accurate, just and fair.”
On May 1, 2006 the Office requested that an Office medical adviser review Dr. Nutt’s
reports and indicate if his schedule award assessment was accurate. In a May 4, 2006 report, the
Office medical adviser reviewed the medical record. He provided a schedule award assessment
chart showing that Dr. Nutt submitted no measurements for flexion, extension or adduction of
the right shoulder. The medical adviser opined that appellant sustained a one percent impairment
of the right upper extremity based on limitation of abduction to 160 degrees. He explained that
this was “not in addition to the 10 percent, it [was] the only impairment” based on Dr. Nutt’s
reports. The medical adviser explained that appellant did not undergo an arthroplasty or
resection of the distal clavicle. Therefore, appellant was not entitled to the 10 percent
impairment previously awarded.
By decision dated May 10, 2006, the Office found that appellant had not established an
additional impairment of the right upper extremity greater than the 10 percent previously
awarded. The Office found that Dr. Nutt’s opinion as impartial medical examiner, as reviewed
by the Office medical adviser, was sufficiently rationalized to represent the weight of the
medical evidence. The Office noted that appellant remained entitled to medical benefits to treat
the accepted condition.
In a May 12, 2006 letter, appellant requested an oral hearing. On October 27, 2006
appellant’s attorney representative amended the request to one for a review of the written record.
By decision dated and finalized January 8, 2007, the Office hearing representative
affirmed the May 10, 2006 decision, finding that appellant had not established that she sustained
greater than a 10 percent impairment of the right upper extremity. The hearing representative
found that the weight of the medical evidence rested with Dr. Nutt and the Office medical
adviser’s review of his findings. The hearing representative further found that appellant did not
submit medical evidence indicating any greater percentage of impairment than that awarded.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act7 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a mater which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluating schedule losses and the Board has concurred in such adoption.8 As of February 1, 2001,
7

5 U.S.C. §§ 8101-8193.

8

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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schedule awards are calculated according to the fifth edition of the A.M.A., Guides, published in
2000.9
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.10 Chapter 16
of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, restricted motion, loss
of sensation or loss of strength.11 Chapter 16 specifies that flexion, extension, abduction,
adduction internal rotation and external rotation are all to be considered in evaluating
impairments of shoulder motion.12 The A.M.A., Guides provides specific grading schemes for
rating upper extremity impairments due to restricted motion, including a lack of flexion and
extension of the shoulder.13
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.14 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.15 However, in a situation where the Office secures an opinion from an
impartial medical examiner for the purpose of resolving a conflict in the medical evidence and
the opinion from such examiner requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the examiner for the purpose of correcting the
defect in the original opinion.16

9

See FECA Bulletin No. 01-05 (issued January 29, 2001) (schedule awards calculated as of February 21, 2001
should be evaluated according to the fifth edition of the A.M.A., Guides. Any recalculations of previous awards
which result from hearings, reconsideration or appeals should, however, be based on the fifth edition of the A.M.A.,
Guides effective February 1, 2001).
10

See Paul A. Toms, 28 ECAB 403 (1987).

11

A.M.A., Guides, Chapter 16, “The Upper Extremities,” pages 433-521 (5th ed. 2001).

12

Id. at page 474, paragraph 16.4i, “Shoulder Motion Impairment.”

13

Figure 16-40, page 476 of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity Motion Impairments
Due to Lack of Flexion and Extension of Shoulder.” Figure 16-43, page 477 of the A.M.A., Guides is entitled “Pie
Chart of Upper Extremity Motion Impairments Due to Lack of Abduction and Adduction of Shoulder.” Figure 1646, page 479 of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity Motion Impairments Due to Lack of
Internal and External Rotation of Shoulder.”
14

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

15

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

16

Margaret M. Gilmore, 47 ECAB 718 (1996).

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ANALYSIS
The Office accepted that appellant sustained bicipital tendinitis of the right shoulder and
a right rotator cuff tear, requiring surgery on February 19, 1999. The Office awarded appellant a
schedule award for a 10 percent impairment to the right upper extremity based on resection of
the distal clavicle. Pursuant to the first appeal, the Board found a conflict of medical evidence
between an Office medical adviser and Dr. Weiss, an attending osteopath, regarding the
percentage of permanent impairment. On remand of the case, the Office obtained an impartial
medical opinion from Dr. Nutt, a Board-certified orthopedic surgeon.
Dr. Nutt opined that appellant had a one percent impairment of the right upper extremity
due to pain with abduction greater than 160 degrees, according to Figure 18-1 of the A.M.A.,
Guides. He stated that appellant had full abduction, internal and external rotation of the right
shoulder. However, Dr. Nutt did not provide range of motion measurements or clinical
observations regarding adduction, flexion and extension of the right shoulder. The A.M.A.,
Guides provides that adduction, flexion and extension of the shoulder must be assessed when
Thus, Dr. Nutt’s report was incomplete and required
evaluating range of motion.17
clarification.18 But the Office did not request a supplemental report from Dr. Nutt.
The Office did submit Dr. Nutt’s report to an Office medical adviser for review.
However, the medical adviser did not discuss the incomplete nature of Dr. Nutt’s opinion. He
indicated in a schedule award assessment chart that Dr. Nutt had not provided measurements for
adduction, flexion or extension of the right shoulder. Yet, he concurred with Dr. Nutt’s
assessment. The Board has held that, while an Office medical adviser may review the opinion of
an impartial medical specialist in a schedule award case, the resolution of the conflict is the
specialist’s responsibility.19 The Office issued its May 10, 2006 and January 8, 2007 decisions
finding a one percent impairment of the right upper extremity based on the Office medical
adviser’s opinion. The Board finds that the Office should obtain a supplemental report from
Dr. Nutt on the extent of permanent impairment to appellant. Following this and all other
development deemed necessary, the Office shall issue an appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to the Office for further development.

17

A.M.A., Guides, Chapter 16, “The Upper Extremities,” page 474, paragraph 16.4i, “Shoulder Motion
Impairment.”
18

Margaret M. Gilmore, supra note 16.

19

See, e.g., Willie C. Howard, 55 ECAB 564 (2004) (where the Office medical adviser concurred that the
impartial medical specialist’s impairment rating was appropriate under the fifth edition of the A.M.A., Guides).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 8, 2007 is set aside and the case remanded for further
action consistent with this opinion.
Issued: January 17, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CONNECTICUT HEATHCARE SYSTEM,
West Haven, CT, Employer
__________________________________________

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

Docket No. 08-300
Issued: May 9, 2008

Case Submitted on the Record

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

JURISDICTION
On November 8, 2007 appellant filed a timely appeal from the October 12, 2007 decision
of the Office of Workers’ Compensation Programs modifying its May 9, 2007 decision and
denying his claim on the grounds that he had not established fact of injury. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury on March 24,
2007, as alleged.
FACTUAL HISTORY
On March 30, 2007 appellant, then a 51-year-old maintenance mechanic, filed a
traumatic injury claim, Form CA-1, alleging that he injured his lower back on March 24, 2007 as
he passed tools down a crawl space. The employing establishment controverted the claim,
stating that appellant’s disability was not caused by a traumatic injury.

Appellant submitted an April 5, 2006 magnetic resonance imaging (MRI) scan of his
lumbar spine that showed a midline annular tear at L4-5 with a small central disc protrusion and
a left lateral/foraminal disc protrusion at L3-4, with potential to impinge the left side L3 nerve
root.
By decision dated May 9, 2007, the Office denied appellant’s claim on the grounds that
he had not submitted evidence sufficient to establish that the employment incident occurred as
alleged or that he had sustained an employment-related injury.
On July 16, 2007 appellant requested reconsideration. He submitted records from the
employee health unit completed by Debbie Simmons, an advanced practice registered nurse. On
a progress note dated March 30, 2007, Ms. Simmons reported that appellant was reaching
overhead for a container of tools when he felt his lower back “give out.” He finished his
assignment and then notified his supervisor that he needed to be relieved of duties because of his
severe back pain. Ms. Simmons noted tenderness in the lumbosacral paraspinal muscles, full
active range of motion and normal reflexes. She found that appellant had sustained a low back
strain. Ms. Simmons stated that this condition appeared to be employment related because sprain
and strain injuries can be caused by holding an awkward posture while reaching overhead. She
noted that appellant had a preexisting bulging disc that was aggravated in the employment
incident. Ms. Simmons stated that appellant was totally disabled from March 26 to 30, 2007 and
under working restrictions from March 30 to April 9, 2007.
On a March 26, 2007 accident report, Paul Moreau, appellant’s supervisor, stated that
appellant was working with another mechanic to correct a steam leak on March 24, 2007 at 7:00
a.m. While handling tools and turning, appellant felt a sharp pain in his lower back, which
progressively worsened. Appellant returned home at 9:00 a.m.
By decision dated October 12, 2007, the Office modified its May 9, 2007 decision to find
that appellant had established an employment incident on March 24, 2007. It found, however,
that the medical evidence of record was not sufficient to establish a diagnosis or causal
relationship because it was not prepared by a physician.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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
filed within the applicable time limitation, that an injury was sustained while in the performance
of duty, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
1

5 U.S.C. §§ 8101-8193.

2

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

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established. “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 is alleged to have occurred. The second component of “fact of injury”
is whether the incident caused a personal injury and, generally, this can be established only by
medical evidence.3
When determining whether an employment incident caused the claimant’s diagnosed
condition, the Office generally relies on the rationalized medical opinion of a physician.4 To be
rationalized, the opinion must be based on a complete factual and medical background of the
claimant5 and must be one of reasonable medical certainty,6 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.
ANALYSIS
The Office accepted that appellant felt pain in his back while passing tools to a coworker
on March 24, 2007. The issue to be resolved is whether he has established, by probative medical
evidence, that he sustained a diagnosed injury causally related to this incident.
In support of his claim, appellant submitted employee health unit records completed on
March 30, 2007 by Ms. Simmons, an advanced practice registered nurse. The Board finds that
Ms. Simmons is not competent to provide medical opinion evidence under the Act. The Board
has held that a medical report may not be considered probative medical evidence unless it can be
established that the person completing the report is a “physician” as defined in the Act.7 The Act
defines “physician” to include surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by state
law.8 Because Ms. Simmons is a registered nurse, which is not named in the Act under the
definition of “physician,” her reports are of no probative value in establishing a diagnosis or
causal relationship.9
The record contains an April 5, 2006 MRI scan of appellant’s lumbar spine, showing a
midline annular tear at L4-5 and a left lateral/foraminal disc protrusion at L3-4. The Board notes
that this report predates appellant’s accepted employment incident and includes no information
about causal relationship. It is therefore insufficient to establish appellant’s claim.
3

Ellen L. Noble, 55 ECAB 530 (2004).

4

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

5

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

6

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

7

Thomas L. Agee, 56 ECAB 465 (2005).

8

5 U.S.C. § 8101(2).

9

See Janet L. Terry, 53 EAB 570, n.22 (2002) (“lay individuals such as physician assistants, nurse practitioners
and social workers are not competent to render a medical opinion”).

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The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury causally related to his accepted employment incident.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
March 24, 2007, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 12, 2007 is affirmed.
Issued: May 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


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

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

Docket No. 13-2082
Issued: May 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 11, 2013 appellant, through her attorney, filed a timely appeal from a
June 12, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) which
affirmed a decision denying her claim for a 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 the case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board.2 In a May 17, 2000 decision, the Board
set aside OWCP’s denial of appellant’s occupational disease claim and remanded the case for
OWCP to refer her for a second opinion examination regarding whether her claimed right
shoulder, arm and wrist conditions were caused by her employment.3 In a June 12, 2007
decision, the Board affirmed OWCP decisions which denied her claim for a recurrence of
disability.4 The facts of the case are set forth in the Board’s prior decision and are incorporated
herein by reference.
On April 10, 2008 appellant filed a schedule award claim. She submitted an August 16,
2007 report from Dr. David Weiss, an osteopath, who provided an impairment rating under the
American Medical Association, Guides to the Evaluation of Permanent Impairment5 (A.M.A.,
Guides). Dr. Weiss determined that appellant had reached maximum medical improvement and
opined that she sustained 18 percent permanent impairment of the left upper extremity due to
sensory deficits of the left C5 and C6 nerve roots and a left lateral pinch deficit. He found that
she had 14 percent impairment of the right upper extremity due to sensory deficit in the right C5
nerve root and right lateral pinch deficit.
In an October 15, 2008 report, an OWCP medical adviser determined that appellant had
eight percent impairment of the left arm and one percent impairment of the right arm under the
fifth edition of the A.M.A., Guides. The medical adviser questioned the extent of objective
findings made by Dr. Weiss, opined that the evidence did not substantiate the extent of the deficit
on the left C5 and C6 nerve roots and advised that pinch deficit could not be used.
On December 28, 2009 OWCP referred appellant for a second opinion to Dr. Noubar A.
Didizian, a Board-certified orthopedist, for an opinion on whether appellant had residuals of her
accepted conditions and whether she had permanent impairment due to the accepted conditions.
In a January 20, 2010 report, Dr. Didizian noted reviewing the June 15, 2000 statement of
accepted facts (SOAF), history of injury and subsequent treatment. He noted that there were no
objective orthopedic or neurologic deficit in the cervical spine or extremities found on clinical
examination and therefore an impairment rating was inappropriate. Dr. Didizian found no
objective evidence of residuals in the neck or upper extremities.
In a memorandum dated February 26, 2010, OWCP noted that the SOAF provided to
Dr. Didizian was not updated and that a new SOAF should be prepared and forwarded to the
second opinion physician for an addendum report.

2

On August 20, 1996 appellant, a postal clerk, filed a claim alleging that repetitive motion in sorting mail
irritated and caused weakness in her right arm and shoulder. OWCP accepted brachial neuritis or radiculitis, mild
ulnar neuropathy, hypermobility of the metacarpophalangeal joint and cervical radiculopathy.
3

Docket No. 99-300 (issued May 17, 2000).

4

Docket No. 07-483 (issued June 12, 2007).

5

A.M.A., Guides (5th ed. 2001).

2

In a decision dated February 28, 2012, OWCP denied appellant’s claim for a schedule
award. Appellant requested an oral hearing.
In a decision dated May 11, 2012, an OWCP hearing representative set aside the
February 28, 2012 decision and remanded the matter for further medical development. The
hearing representative noted that Dr. Didizian, the second opinion physician, based his report on
an incomplete SOAF which did not include a description of the accepted conditions. OWCP was
instructed to prepare an updated SOAF and request an addendum report from Dr. Didizian.
OWCP prepared an updated SOAF dated June 1, 2012 which noted appellant’s accepted
claims as brachial neuritis or radiculitis, hypermobility of the metacarpophalangeal joint and
cervical radiculopathy on September 26, 2001. The SOAF did not include mild ulnar neuropathy
as an accepted condition.
Appellant submitted reports from Dr. Scott M. Fried, an osteopath, dated April 9 to
June 13, 2012, who diagnosed metacarpophalangeal volar plate capsular injury with chronic
laxity of the left thumb, disc space narrowing at C4-5, C5-6 with radiculopathy, right rotator cuff
tendinitis and subacromial impingement, posterior occipital neuralgia right side, bilateral radial
tunnel and left ulnar neuropathy, brachial plexopathy, cervical radiculopathy, thoracic neuritis
and scapular winging, carpal tunnel neuropathy secondary to work activities.
On July 3, 2012 OWCP referred appellant to Dr. Didizian for a supplemental report
regarding whether appellant had residuals of her accepted conditions and whether she had
permanent impairment attributable to her accepted conditions. In a September 25, 2012 e-mail,
OWCP noted that Dr. Didizian declined to provide another report.
In a September 26, 2012 letter, OWCP referred appellant to Dr. Robert F. Draper, Jr., a
Board-certified orthopedist, for a determination of whether she has residuals of her accepted
conditions and whether she had permanent impairment of the bilateral upper extremities. It
provided Dr. Draper with the June 1, 2012 SOAF. In an October 5, 2012 report, Dr. Draper
noted a history of appellant’s work-related condition and reviewed the medical record. He noted
examination findings of limited range of motion of the cervical spine, normal motor function for
the deltoids, biceps, triceps, wrist extensors, wrist flexors, finger extensors, finger flexors, intact
and symmetrical reflexes for the brachioradialis, biceps and triceps, normal light touch sensation
test for the dermatome levels at C2 to C8 and T1. Dr. Draper noted normal range of motion of
the elbow, forearm and wrists bilaterally, normal range of motion for the bilateral fingers for
distal interphalangeal joints, proximal interphalangeal joint and metacarpophalangeal joint, no
atrophy in the right hand, negative Tinel’s sign over the median and ulnar nerve and no sensory
deficit in the bilateral upper extremities. He noted the accepted diagnoses and advised that, on
examination, he noted no evidence of hypermobility of the metacarpophalangeal joint and no
evidence of aggravation of a preexisting condition. Dr. Draper noted symptoms of neuritis,
radiculitis or cervical radiculopathy but advised that physical examination of motor and sensory
function in the bilateral upper extremities was intact without evidence for these diagnoses.
However, he stated that appellant had symptoms and the symptoms needed to be taken into
account when determining an impairment rating. Dr. Draper opined that under the sixth edition

3

of the A.M.A., Guides6 appellant had two percent impairment of the right and left arms. He
noted using Table 15-18, page 429, Impairment for Sensory Following Peripheral Nerve Injury,
for evaluating subjective complaints of paresthesias in the upper extremities in the absence of
physical examination findings. Dr. Draper selected the mild category for retained protective
sensation and pain, for two percent impairment of the left upper extremity and right upper
extremity. He noted that the net adjustment formula yielded no adjustment.
In a December 15, 2012 report, an OWCP medical adviser found no basis for an upper
extremity impairment in either arm. He noted that Dr. Draper found no objective evidence of
hypermobility of the metacarpophalangeal joint or upper extremity sensory or motor deficits on
clinical examination related to the accepted condition of cervical radiculopathy and brachial
neuritis. With regard to the brachial neuritis, the medical adviser noted that an electromyogram
did not indicate brachial nerve issues and there were no objective clinical findings of this
condition. If there were findings, he noted that the appropriate table in the A.M.A., Guides
would be Table 15-14, not Table 15-18 as used by Dr. Draper. The medical adviser noted that
Table 15-14 required abnormalities on objective sensory and motor testing for a ratable
impairment. With regard to cervical radiculopathy, he referenced The Guides Newsletter of
July/August 2009 to rate the severity of objective sensory deficits. As Dr. Draper noted no
abnormalities on objective sensory and motor deficits upon testing in either upper extremity the
final impairment zero percent for the bilateral upper extremities. For hypermobility of the
metacarpalphalangeal joint, the medical adviser noted that Dr. Draper found no hypermobility
and therefore no basis for impairment for this condition. He noted the date of maximum
improvement was October 5, 2012.
In a decision dated January 7, 2013, OWCP denied appellant’s claim for a schedule
award.
On January 11, 2013 appellant requested an oral hearing which was held on
April 11, 2013. Appellant’s attorney asserted that the SOAF was inaccurate as it did not list
ulnar neuropathy as an accepted condition. Appellant submitted reports from Dr. Fried, dated
May 1, 2012 to May 7, 2013, who diagnosed metacarpophalangeal volar plate capsular injury
with chronic laxity of the left thumb, disc space narrowing at C4-5, C5-6 with radiculopathy,
right rotator cuff tendinitis and subacromial impingement, posterior occipital neuralgia right side,
bilateral radial tunnel and left ulnar neuropathy, brachial plexopathy, cervical radiculopathy,
thoracic neuritis and scapular winging, carpal tunnel neuropathy secondary to work activities.
She submitted an April 8, 2013 impairment rating from Dr. Weiss, who applied the updated
edition of the A.M.A., Guides (6th ed. 2008) to his August 16, 2007 examination findings.
Dr. Weiss found a combined 14 percent impairment of the left arm and 4 percent impairment of
the right arm. For the left arm, he found one percent impairment for a mild sensory deficit of the
left C5 nerve root, two percent impairment for mild sensory deficit of the left C6 nerve root, five
percent impairment for entrapment neuropathy of the left ulnar nerve at the elbow, six percent
impairment of the left arm for left thumb metacarpophalangeal subluxation. For the right arm,
Dr. Weiss found one percent impairment for mild sensory deficit of the right C5 nerve root and
three percent impairment for right shoulder acromioclavicular arthropathy.
6

A.M.A., Guides (6th ed. 2008).

4

In a June 12, 2013 decision, an OWCP hearing representative affirmed the decision dated
January 7, 2013. The hearing representative found that the statement of accepted facts was
accurate as the accepted condition of brachial neuritis or radiculitis encapsulated appellant’s mild
ulnar neuropathy.
LEGAL PRECEDENT
Section 8107 of FECA7 and its implementing federal regulations,8 set forth the number of
weeks of compensation payable to employees sustaining permanent impairment from loss or loss
of use, of scheduled members or functions of the body. However, FECA does not specify the
manner in which the percentage of loss shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.9 For decisions issued beginning May 1, 2009, the
sixth edition of the A.M.A., Guides will be used.10
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.11 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.13 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.14

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

Pamela J. Darling, 49 ECAB 286 (1998).

12

Thomas J. Engelhart, 50 ECAB 319 (1999).

13

L.J., Docket No. 10-1263 (issued March 3, 2011).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

5

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.15
OWCP’s Procedure Manual provides as follows:
“The [claims examiner] is responsible for ensuring that the SOAF is correct,
complete, unequivocal, and specific. When the [district medical adviser], second
opinion specialist or referee physician renders a medical opinion based on an
SOAF which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”16
ANALYSIS
Appellant’s claim was accepted by OWCP for brachial neuritis or radiculitis, mild ulnar
neuropathy, hypermobility of the metacarpophalangeal joint and cervical radiculopathy. On
April 10, 2008 she claimed a schedule award and submitted an August 16, 2007 report from
Dr. Weiss, who found 18 percent permanent impairment of the left arm and 14 percent
impairment of the right arm under the fifth edition of the A.M.A., Guides. On October 15, 2008
an OWCP medical adviser differed with Dr. Weiss and opined that appellant had eight percent
impairment of the left arm and one percent impairment of the right arm under the fifth edition of
the A.M.A., Guides.
Thereafter, OWCP determined that further development was warranted and it
subsequently referred appellant for a second opinion to Dr. Draper.17 It requested that
Dr. Draper review a June 1, 2012 SOAF and address whether appellant sustained impairment to
the bilateral upper extremities causally related to the accepted employment injury. In the SOAF,
however, OWCP failed to specify that it had accepted mild ulnar neuropathy. It provides a
physician with a SOAF to assure that the medical specialist’s report is based upon a proper
factual background.18 The SOAF must include the date of injury, claimant’s age, the job held on
the date of injury, the employer, the mechanism of injury and the claimed or accepted
conditions.19 OWCP procedures further indicate that, when an OWCP medical adviser, second
15

Tommy R. Martin, 56 ECAB 273 (2005). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6(f) (February 2013).
16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
17

The Board notes that, after OWCP initially referred appellant for a second opinion with Dr. Didizian, it
requested a supplemental report from Dr. Didizian but was informed that he would not provide a supplemental
report. OWCP acted properly in referring appellant for another opinion. See Ayanle A. Hashi, 56 ECAB 234 (2004)
(when OWCP refers a claimant for a second opinion evaluation and the report does not adequately address the
relevant issues, OWCP should secure an appropriate report on the relevant issues).
18

Helen Casillas, 46 ECAB 1044 (1995).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5
(September 2009); see also Darletha Coleman, 55 ECAB 143 (2003).

6

opinion specialist or referee physician renders a medical opinion based on a SOAF which is
incomplete or inaccurate or does not use the SOAF as the framework in forming his or her
opinion, the probative value of the opinion is seriously diminished or negated altogether.20 As
Dr. Draper rendered his opinion based on incomplete factual information, it is of limited
probative value. OWCP has the responsibility to obtain from its referral physician an evaluation
that will resolve the issue involved in this case.21 Accordingly, the Board finds that the case
must be remanded for further medical development as Dr. Draper’s opinion is of diminished
probative value as it was based on an incomplete SOAF.
On remand OWCP should prepare a complete, accurate and updated SOAF and refer
appellant to an appropriate medical specialist for examination and a reasoned opinion of whether
she sustained permanent impairment of the bilateral upper extremities causally related to her
accepted work injuries. Following such further development as deemed necessary, it shall issue
a de novo decision.22
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that the case is not in posture for decision.

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
21

Richard F. Williams, 55 ECAB 343 (2004).

22

Counsel argued that Dr. Weiss’ April 8, 2013 impairment rating under the A.M.A., Guides (6th ed. 2008)
created a medical conflict. In his April 8, 2013 report, Dr. Weiss merely applied the latest version of the A.M.A.,
Guides to his August 16, 2007 examination findings. While Dr. Weiss’ most recent report provided an impairment
rating under the sixth edition of the A.M.A., Guides, his report is not based on current findings. Dr. Weiss’
impairment rating contained in his April 8, 2013 report is thus of diminished probative value and insufficient to
create a medical conflict. See W.M., Docket No. 12-773 (issued March 29, 2013) (where the concurring opinion
found that Dr. Weiss’ dated, blended or composite reports offering opinions reached in 2010 based on a physical
examination in 2006 are of diminished probative value); J.K., Docket No. 11-1765 (issued April 12, 2012) (where
the Board found that a physician’s report in 2011 was of diminished probative value upon which to base a current
permanent impairment rating as his findings were based on an examination performed in 2006); C.W., Docket No.
12-1211 (issued November 15, 2012) (the Board found that applying the latest version of the A.M.A., Guides to
2007 examination findings did not create a conflict with a referee physician’s opinion which was based on
considerably more recent examination findings).

7

ORDER
IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision by the Board.
Issued: May 15, 2014
Washington, DC

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

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

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

8


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

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

Docket No. 08-2436
Issued: June 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 11, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated July 24, 2008 denying appellant’s claim for wage-loss
compensation between June 8 and 18, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she had a period of disability between
June 8 and 18, 2007 causally related to her June 9, 2004 employment-related injury.
FACTUAL HISTORY
On August 24, 2004 appellant, then a 40-year-old letter carrier, filed a traumatic injury
claim alleging that on June 9, 2004 she sustained a hernia in her stomach from lifting and pulling
collection tubs from the sidewalk to a truck. She did not stop work. The Office accepted
appellant’s claim for an inguinal hernia.

On August 20, 2004 appellant sought treatment from Dr. Zelda West Johnson, a family
practitioner, who put her on work restrictions and subsequently diagnosed back strain and a
ventral hernia. Dr. Johnson advised that appellant could return to work with no lifting over
10 pounds. In an October 15, 2004 report, Dr. Joynita Robinson, an osteopath specializing in
family medicine, diagnosed abdominal ventral hernia. She further noted that appellant’s carrier
duties could be modified to accommodate lifting restrictions. Drs. Johnson and Robinson
continued submitting reports regarding appellant’s work status.
In duty status reports dated February 14 and November 29, 2005 and June 16, 2006,
Dr. Derron Simon, a Board-certified surgeon, diagnosed abdominal ventral hernia and advised
that appellant could continue working with lifting restrictions.
On May 1, 2006 appellant accepted an offer of modified assignment from the employing
establishment. The duties of the modified assignment consisted of casing mail on various routes
within the station. On July 10, 2006 Dr. Leon Dixon, an internist and employing establishment
physician, reviewed her current work status at the request of the employing establishment and
found that, based on appellant’s restrictions, she was under-utilized and could perform other
duties without adversely impacting her hernia. He asked Dr. Johnson to indicate whether
appellant could perform the specified duties and to indicate any necessary modifications. The
record does not indicate that Dr. Johnson responded. In a February 14, 2007 duty status report, a
nurse noted that appellant could continue working with lifting restrictions.
On July 10, 2007 appellant filed a claim for wage-loss compensation for the period
June 8 to 18, 2007. In an accompanying time analysis form, (CA-7a,) she stated that her reason
for leave was because she was in pain. The CA-7a form reflects that appellant worked for four
hours on June 8, 2007 and claimed leave without pay for the remaining four hours that day and
that she claimed eight hours of leave without pay for each of the other claimed days.
On July 18, 2007 appellant accepted an offer of modified assignment consisting of casing
mail on various routes in the station and other duties within appellant’s medical limitations. She
subsequently submitted an October 9, 2007 report from Dr. Robinson in which she diagnosed
abdominal pain, low back pain and fatigue, who also indicated that appellant could return to
work on October 11, 2007.
On December 18, 2007 the Office advised appellant that it could not process her claim
for compensation beginning June 8, 2007 as there was no medical evidence supporting total
disability for the period claimed. It allowed appellant 30 days to submit additional evidence.
Appellant submitted a June 8, 2007 treatment note from a physician’s assistant
diagnosing a ventral hernia. The physician’s assistant indicated that her disability began on
June 8, 2008. The report also indicated that the light-duty restrictions and full-duty release date
were “per specialist.” Appellant also submitted duty status reports from Dr. Robinson dated
October 9, 2007 and July 16, 2008 diagnosing abdominal ventral hernia and low back pain.
Dr. Robinson indicated that appellant had no other disabling conditions. The reports also noted
that appellant could work with restrictions.

2

By decision dated July 24, 2008, the Office denied appellant’s wage-loss compensation
for the period June 8 to 18, 2007 finding that the medical evidence did not demonstrate that the
accepted medical condition caused or affected a total disability for the claimed period.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim, including that any specific condition
or disability for which she claims wage-loss compensation is causally related to the employment
injury.2
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. 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.3 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 she hurt 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.4 The Board will not require
the Office to pay compensation for disability in the absence of any 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.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6

1

5 U.S.C. §§ 8101-8193.

2

Tammy Medley, 55 ECAB 182 (2003).

3

Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

5

G.T., supra note 4; see Fereidoon Kharabi, supra note 3.

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS
The Office accepted that appellant sustained an inguinal hernia. Appellant claims that
this injury caused her total disability for employment from June 8 to 18, 2007. However, her
claim is not supported by the medical evidence of record. The record indicates that appellant
was working restricted duty before and after the claimed period of disability. There are no
medical reports from a physician indicating that the accepted employment injury caused any total
disability from June 8 to 18, 2007.
Appellant submitted a June 8, 2007, statement from a physician’s assistant diagnosing a
ventral hernia and indicating that her disability began that day. However, the Board has noted
that a physician’s assistant is not a physician as defined under the statute and therefore any report
from such individual does not constitute competent medical evidence, which can only be given
by a qualified physician.7 Thus, this report and other reports from physician’s assistants cannot
be considered as medical evidence. Likewise, the record contains reports and notes from nurses.
These documents also are not considered competent medical evidence as nurses are not
physicians under the terms of the Act and their opinions are of no probative value.8
Consequently, evidence submitted from physician’s assistants and nurses are insufficient to
establish appellant’s claim.
The record also contains medical reports from physicians but these reports are
insufficient to establish appellant’s claim because they do not provide any specific support that
her accepted hernia condition caused or aggravated any total disability from June 8 to 18, 2007.
For example, in duty status reports dated October 9, 2007 and July 16, 2008, Dr. Robinson
diagnosed abdominal ventral hernia and low back pain. She also advised that appellant could
work within restrictions. As neither of these reports indicates that appellant was disabled during
the claimed period of disability between June 8 and 18, 2007, due to her accepted hernia
condition, these reports are of little probative value. Additionally, other reports from
Dr. Robinson predate appellant’s claimed period of disability and therefore do not support her
claim.
The medical reports from Drs. Johnson and Simon are also insufficient to meet
appellant’s burden of proof. Each of these reports predate the claimed period of disability and
none indicate that appellant sustained any period of total disability due to her accepted hernia
condition. There is no medical evidence of record from a physician that specifically addresses
whether appellant had employment-related disability during the claimed period June 8
to 18, 2007.
Upon filing her claim for wage-loss compensation, appellant indicated in her time
analysis form that she stopped work due to pain. However, the record contains no objective
medical evidence supporting a finding of total disability, for the period claimed, causally related
7

See George H. Clark, 56 ECAB 162 (2004). See 5 U.S.C. § 8101(2) (defining the term “physician”); see also
Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a
qualified physician).
8

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

4

to the accepted hernia condition. As noted, for each period of disability claimed, appellant has
the burden of proving by the preponderance of the reliable, probative and substantial evidence
that she is disabled for work as a result of her employment injury. She has not provided such
medical evidence supporting her claim for disability between June 8 and 18, 2007.
Consequently, the medical evidence is insufficient to establish that appellant was totally
disabled between June 8 and 18, 2007 causally related to the accepted injury.
CONCLUSION
The Board finds that appellant has not established that she had a period of disability
between June 8 and 18, 2007 causally related to her June 9, 2004 employment-related injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 24, 2008 is affirmed.
Issued: June 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHIA VETERANS
ADMINISTRATION MEDICAL CENTER,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-1260
Issued: January 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 8, 2010 appellant filed a timely appeal of a January 21, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration.
Because more than one year elapsed between the last merit decision dated April 1, 2009 and the
filing of the appeal, the Board lacks jurisdiction to review the merits of the case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On October 18, 2008 appellant, then a 42-year-old registered nurse, filed a traumatic
injury claim alleging that on July 30, 1993 she developed major depression and bipolar disorder
as a result of the employing establishment’s denial of her request for leave without pay and lightduty work due to her early labor symptoms. She stated that she was forced to resign on the date
of injury due to the denial of her request.
In a decision dated December 11, 2008, the Office denied appellant’s claim on the
grounds that it was not timely filed under 5 U.S.C. § 8122. It found that she first became aware
of her emotional condition and the relationship to her employment on July 30, 1993 when she
resigned from the employing establishment but appellant did not file her claim within three years
of that date. The Office found that her immediate supervisor did not have actual knowledge of
the alleged employment-related injury within 30 days. It found that, even if appellant’s claim
was timely filed, the evidence of record failed to establish that she sustained an emotional
condition while in the performance of duty.
On December 29, 2008 appellant requested a review of the written record by an Office
hearing representative.
By decision dated April 1, 2009, an Office hearing representative found that appellant’s
claim was not timely filed in accordance with section 8122 of the Federal Employees’
Compensation Act and affirmed the December 11, 2008 decision.
On May 19, 2009 appellant requested reconsideration.
In a May 26, 2009 decision, the Office denied appellant’s request for reconsideration. It
found that she did not raise a substantive legal question or submit any new and relevant
evidence.
On August 10, 2009 appellant appealed the Office’s April 1, 2009 decision to the Board.
In an order dated September 17, 2009, the Board granted appellant’s September 3, 2009
request to dismiss her appeal.2
By letter dated September 29, 2009, appellant requested that the Office reconsider its
April 1, 2009 decision. She submitted medical evidence dated May 15, 1993 to October 5, 1998
that addressed, among other things, her emotional condition, disability and treatment. In a
May 30, 1995 medical report, Dr. Oscar A. Ruiz Lacomba, an attending Board-certified
psychiatrist, stated that extensive correspondence suggested a strong history of discrimination
and unfair labor practices directed towards appellant while working at the employing
establishment from December 1992 to July 1993. Dr. Ruiz Lacomba related that since the
employing establishment’s denial of appellant’s July 1993 request for leave without pay due to
her deteriorating health mental health and complications from her pregnancy, she remained
unemployed. He opined that, despite a history of an emotional condition dating back to
2

Docket No. 09-2086 (issued September 17, 2009).

2

adolescence, her ongoing depressive syndrome was caused by her employment. Dr. Ruiz
Lacomba concluded that appellant remained totally disabled. Appellant submitted a description
of her registered nurse position.
In a January 21, 2010 decision, the Office denied appellant’s request for reconsideration.
It found that she failed to raise a substantive legal question or submit new and relevant
evidence.3
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Act,4
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.5 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.6 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS
Appellant’s September 29, 2009 request for reconsideration did not allege or
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office. The Board finds that she is not entitled to a review of the merits of her claim based on
the first and second requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by the Office. Dr. Ruiz Lacomba opined in a May 30, 1995 report that appellant’s
ongoing depressive syndrome was caused by her employment and that she was totally disabled.
This report does not pertain to the issue of whether she timely filed a claim for an emotional
condition under section 8112 of the Act. The Board has held that the submission of evidence
which does not address the particular issue involved in the case does not constitute a basis for
reopening the claim.7
3

Following the issuance of the Office’s January 21, 2010 decision, the Office received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c)(1). Appellant may submit this evidence and legal contentions
with a formal, written request for reconsideration to the Office. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
4

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(1)-(2).

6

Id. at § 10.607(a).

7

D. Wayne Avila, 57 ECAB 642 (2006).

3

Similarly, the remaining medical evidence submitted is not relevant to the underlying
issue of whether appellant timely filed a claim for an emotional condition. The Board finds that
this evidence is insufficient to reopen her claim for further merit review.8
In this regard, a copy of appellant’s registered nurse position set forth its requirements.
As the position description does not address the issue of whether her emotional condition claim
was timely filed, this evidence is not relevant to the particular issue involved and, thus, does not
warrant reopening her claim for further merit review.9
The Board finds that the Office properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her September 29, 2009 request for reconsideration.10
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

8

Id.

9

Id.

10

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits).

4

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Detroit, MI,
Employer
__________________________________________

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

Docket No. 16-0174
Issued: April 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 9, 2015 appellant, through counsel, timely appealed a September 3, 2015
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 a ratable impairment of the lower extremities due to
his employment-related lumbar condition.

1

5 U.S.C. § et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 Appellant, a 54-year-old custodian,
injured his lower back on May 4, 2009 when he lifted a bucket of water and emptied it into a
sink. OWCP accepted his claim for sciatica and lumbar radiculopathy. On September 16, 2010
appellant filed a claim (Form CA-7) for a schedule award. OWCP denied the claim on
November 1, 2012 and an OWCP hearing representative with the Branch of Hearings and
Review affirmed that decision on April 8, 2013.3 The Board subsequently affirmed the hearing
representative’s decision.4 Appellant timely requested reconsideration and submitted a
November 19, 2014 impairment rating from Dr. Catherine E. Watkins-Campbell.5
Dr. Watkins-Campbell found that appellant had 15 percent left lower extremity impairment
based on motor and sensory deficits involving the L5 and S1 nerve roots.6 By decision dated
December 16, 2014, OWCP reviewed the merits of the schedule award claim, but denied
modification.7 Appellant appealed to the Board.
In a July 2, 2015 decision, the Board determined that the case was not in posture for
decision.8 The Board found that Dr. Watkins-Campbell’s November 19, 2014 report was
“probative as to permanent impairment due to appellant’s accepted conditions of sciatica and
lumbar radiculopathy.” OWCP had not previously referred Dr. Watkins-Campbell’s impairment
rating to its district medical adviser (DMA), and because of the report’s probative value, the
Board remanded the case to OWCP for proper development of the new medical evidence.
On remand, OWCP referred the case to its DMA, who recommended that appellant
undergo a second opinion evaluation.
Dr. Emmanuel N. Obianwu, a Board-certified orthopedic surgeon and OWCP-referral
physician, examined appellant on August 7, 2015 and diagnosed mild chronic lumbar disc
disease with no evidence of lumbar radiculopathy. He reviewed OWCP’s latest amended
statement of accepted facts, appellant’s history of injury, his occupational history, and his current
2

Docket Nos. 13-2011 (issued February 18, 2014) and 15-0606 (issued July 2, 2015).

3

OWCP based its denial on the January 4, 2011 evaluation of Dr. Nathan A. Fogt, a Board-certified orthopedic
surgeon and OWCP-referral physician, who found zero percent upper or lower extremity impairment. Dr. Fogt also
provided a February 13, 2012 supplemental report in which he reaffirmed his January 4, 2011 opinion.
4

Supra note 2.

5

Dr. Watkins-Campbell is Board-certified in both family medicine and occupational medicine.

6

With respect to the left S1 nerve root, Dr. Watkins-Campbell found a moderate sensory deficit two percent and a
mild motor deficit three percent for a combined five percent impairment. The left L5 nerve root revealed a mild
sensory 2 percent deficit and a mild motor 9 percent deficit for a combined 11 percent impairment.
Dr. Watkins-Campbell then combined the multi-level nerve root impairments, resulting in a 15 percent left lower
extremity impairment.
7

OWCP continued to rely on Dr. Fogt’s January 4, 2011 second opinion evaluation.

8

Supra note 2. The facts and circumstances outlined in the Board’s February 18, 2014 and July 2, 2015 decisions
are incorporated herein by reference.

2

work restriction.
Dr. Obianwu also reviewed various medical records, as well as
Dr. Watkins-Campbell’s report. Appellant’s current complaints included left buttocks pain after
walking even short distances. He also complained of pain radiating over the posterior aspect of
the left thigh to the left calf and ankle. Moreover, appellant reported a burning sensation in the
bottom of the left foot. Additionally, he complained of significant symptoms each morning
when he awakened, including intense discomfort across the lower back, which spread into the
left lower extremity. Dr. Obianwu further noted that bending over was especially painful.
On physical examination, Dr. Obianwu noted that appellant did not have any evidence
clinically of an L5 radiculopathy in his lower extremities. There was no objective evidence of
any lower extremity sensory or motor deficits. Dr. Obianwu explained that, for FECA
impairment rating purposes, there was no spinal nerve injury detected on the current clinical
examination. He further noted that the examination was marked by abnormal illness behavior,
which included moaning and inappropriate movements. Dr. Obianwu indicated that some of the
physical findings definitely did not make sense from an anatomical perspective. In conclusion,
he found that there was no work-related spinal nerve injury causing impairment to the lower
extremities.9
In an August 31, 2015 report, Dr. Morley Slutsky, the DMA Board-certified in
occupational medicine, noted that the majority of physicians, including Dr. Obianwu, found no
evidence of lower extremity sensory or motor deficits related to appellant’s accepted low back
conditions.10 He further noted that this was quite different from Dr. Watkins-Campbell’s
evaluation where she found left L5 and S1 deficits. Based on the majority view, the DMA found
that there was no basis for lower extremity impairment under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) (6th ed. 2009).
By decision dated September 3, 2015, OWCP reviewed the merits of the schedule award
claim, but denied modification.11
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.12 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides (6th ed. 2009) as the appropriate
9

Dr. Obianwu also commented on perceived “inconsistencies” in Dr. Watkins-Campbell’s examination and the
conclusions she drew from her reported findings.
10

Dr. Slutsky is Board-certified in occupational medicine.

11

OWCP purportedly denied modification of its December 16, 2014 decision. However, that decision had
already been set aside by the Board. See Docket No. 15-0606 (issued July 2, 2015).
12

For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks of compensation. 5 U.S.C.
§ 8107(c)(2).

3

standard for evaluating schedule losses.13 Effective May 1, 2009, schedule awards are
determined in accordance with the sixth edition of the A.M.A., Guides (2009).14
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.15 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.16 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment.17 It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the Federal (FECA) Procedure Manual.18
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.19 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”20 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well reasoned and based upon a proper factual background, must be given special
weight.21
ANALYSIS
The Board finds that the case is not in posture for decision as there is an unresolved
conflict in medical opinion. The Board previously found that Dr. Watkins-Campbell’s
November 19, 2014 report was “probative as to permanent impairment due to appellant’s
accepted conditions of sciatica and lumbar radiculopathy.” Dr. Watkins-Campbell found
15 percent left lower extremity impairment based on a combination of motor and sensory deficits
13

20 C.F.R. § 10.404 (2014).

14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(February 2013).
15

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

16

See supra note 14 at Chapter 2.808.6a(3).

17

The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009).
18

See supra note 14 at Chapter 3.700, Exhibit 4.

19

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on
behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
20

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

21

Gary R. Sieber, 46 ECAB 215, 225 (1994).

4

involving the L5 and S1 nerve roots. The Board remanded the case for further consideration of
this evidence. On remand, OWCP referred appellant to Dr. Obianwu for a second opinion
evaluation. Based on his August 7, 2015 examination, Dr. Obianwu found that there was no
objective evidence of any lower extremity sensory or motor deficits. Consequently, he
concluded that there was no ratable impairment of the lower extremities.
The Board finds that the reports of Dr. Obianwu and Dr. Watkins-Campbell are of
virtually equal weight and rationale.22 Both physicians identified findings on physical
examination, or the lack thereof, which ostensibly supported their respective opinions. Because
there is an unresolved conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a), the case will
be remanded to OWCP for referral to an impartial medical examiner to determine the existence
and extent of any spinal nerve extremity impairment. After OWCP has developed the case
record consistent with the Board’s directive, a de novo decision shall be issued.
CONCLUSION
The case is not in posture for decision.

22

See supra note 20.

5

ORDER
IT IS HEREBY ORDERED THAT the September 3, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, San Antonio, TX, Employer
__________________________________________

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

Docket No. 08-2510
Issued: July 16, 2009

Case Submitted on the Record

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

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from the February 20 and
August 28, 2008 merit decisions of the Office of Workers’ Compensation Programs that denied
his claim for an employment-related injury. 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 sustained an injury on December 8, 2007, while in the
performance of duty.
FACTUAL HISTORY
On December 28, 2007 appellant, then a 32-year-old custodian, filed a traumatic injury
claim alleging that on December 8, 2007 he was assaulted at work and sustained injury to his
head and neck. The employing establishment controverted the claim, contending that his injury
did not occur while in the performance of duty because he was struck by another employee in the

break room during a dispute over a television channel. The employing establishment noted that
appellant was aware of the zero-tolerance policy for violence in the workplace.
By letter dated January 17, 2008, the Office requested that appellant provide additional
evidence in support of his claim.
In a December 11, 2007 letter, appellant stated that on December 8, 2007 at
approximately 5:30 a.m. he walked into the main break room to speak with his coworkers. He
noted that there were two men asleep at a table and a third man sitting with headphones on his
ears at the rear of the break room. Appellant did not know his assailant by name but had seen
him several times at the employing establishment. He changed the television channel to a music
video channel which was broadcast in Spanish but with some English language. One of the men
at the table woke up and cursed at appellant, stating that he could not understand the television.
Appellant responded that maybe the channel had subtitles. The coworker again cursed at him
and came to about one inch from appellant’s face. Appellant told the coworker that they could
not fight because they were at work but that they could talk after work. The coworker headbutted him in the forehead. Appellant could not remember the details of what happened next, but
remembered being slapped in his face from right to left and his glasses knocked to the floor. The
coworker punched him in his face while his hands were down at his side. Appellant experienced
pain in his neck and jaw and his head pounded. He noticed blood on the floor coming from his
nose. Appellant raised his left hand to keep the coworker from landing another blow and went to
his supervisor’s office where he reported the assault. He was asked several times who had
assaulted him, but he did not know the identity of the coworker. Appellant stated that he had not
previously had a conversation with his assailant.
A December 13, 2007 investigative report stated that the altercation took place on
December 8, 2007 between appellant and Michael McCall at approximately 5:30 a.m. In an
interview, Mr. McCall stated that he did not know appellant but was aware that he was a
custodian. He was in the break room with about six other people when appellant entered and
started flipping channels on the television. Appellant stopped on a Spanish-language channel.
Mr. McCall told appellant, “I do n[o]t understand that,” to which appellant suggested that he read
the subtitles. He stood up and changed the television channel, which he believed angered
appellant. The two began cursing at one another; however, Mr. McCall did not recall what was
said as he was angry that appellant had disrespected him. Due to appellant’s actions, he believed
that a fight was inevitable and he pointed a finger at appellant. Mr. McCall pushed appellant,
who then came towards him in an aggressive manner. Without thinking, he reacted and struck
appellant with his fists. Several other coworkers provided witness statements regarding the
December 8, 2007 incident.1
A December 8, 2007 hospital discharge sheet noted that appellant received treatment for
facial and scalp contusions and a cervical paraspinal muscle strain.

1

The record includes a December 9, 2007 injury report and December 27, 2007 police report. Appellant’s
supervisor stated that to the best of his knowledge he was unaware of any animosity between appellant and
Mr. McCall. The record reflects that on January 13, 2008 appellant received a 14-day suspension due to the
incident.

2

In a February 20, 2008 decision, the Office denied appellant’s claim. It found that the
December 8, 2008 incident occurred on the employing establishment’s premises; however, the
incident occurred while appellant was on a break and not in the performance of his federal duties
as a custodian.
On March 12, 2008 appellant requested a review of the written record by an Office
hearing representative. In an undated letter, he cited to the Injury Compensation for Federal
Employees Publication CA-810 Chapter 3-4A, which stated that coverage under the Federal
Employees’ Compensation Act includes injuries that occur while the employee is engaging in an
activity which is reasonably associated with the employment, such as use of facilities for the
employee’s comfort, health and convenience, as well as eating meals and snacks provided on the
premises. Appellant also cited Publication CA-550, which stated that an employee is considered
to be in the performance of duty during break or at lunch while on the premises of the employer.
By decision dated August 28, 2008, an Office hearing representative affirmed the
February 20, 2008 decision. She found that the altercation arose out of a nonwork-related
discussion involving a television channel and not while appellant was reasonably fulfilling the
duties of his employment or engaged in doing something incidental thereto.
LEGAL PRECEDENT
The Act provides for payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation law, namely, “arising out of and in the
course of employment.”3 “Arising in the course of employment” relates to the elements of time,
place and work activity. To arise in the course of employment, an injury must occur at a time
when the employee may reasonably be said to be engaged in his employer’s business, at a place
where he may reasonably be expected to be in connection with his employment and while
reasonably fulfilling the duties of his employment or engaged in something incidental thereto.
This alone is not sufficient to establish entitlement to compensation. The employee must also
establish the concurrent requirement of an injury “arising out of the employment.” “Arising out
of the employment” requires that a factor of employment caused the injury.”4 Larson, in
addressing assaults arising out of employment, states:
“Assaults arise out of the employment either if the risk of assault is increased
because of the nature or setting of the work or if the reason for the assault was a
quarrel having its origin in the work…. Assaults for private reasons do not arise

2

5 U.S.C. § 8102.

3

See Bernard D. Blum, 1 ECAB 1 (1947).

4

Veleria Minus, 46 ECAB 799 (1995); Charles Crawford, 40 ECAB 474 (1989) (the phrase “arising out of and in
the course of employment” encompasses not only that the injury occurred in the work setting, but also the causal
concept that the employment caused the injury).

3

out of employment unless, by facilitating an assault which would not otherwise be
made, the employment becomes a contributing factor.”5
ANALYSIS
The issue is whether appellant sustained an injury on December 8, 2007 while in the
performance of duty. The facts are not in dispute.6 An altercation arose with a coworker when
appellant changed the channel on a break room television located on the employing
establishment premises. At the time, appellant was on break from his duties. Mr. McCall and
appellant did not have any preexisting relationship outside of work and both men stated that they
did not know each other at the time of the incident.
The Board finds that the altercation occurred in the performance of duty. The dispute in
this case is readily distinguishable from a private matter imported into the workplace.7 Here, the
two men did not know each other or have a relationship outside the workplace. The Board has
recognized that friction and strain among employees may arise as an inherent part of the
conditions of employment and the strain of enforced close contact may provide the necessary
work connection. Even if the subject of a dispute is unrelated to work, an assault is compensable
if the work of the participants brought them together and created the relations and conditions that
created the clash.8 Here, an argument arose on the employing establishment premises regarding
the use of a television furnished by the employer. The quarrel would not have taken place in the
absence of their employment at the employing establishment. Therefore, the assault occurred in
the performance of duty.
The fact that appellant was on break at the time of the assault does not preclude coverage
under the Act. It is well established that employees who, within the time and space limits of
5

A. Larson, The Law of Workers’ Compensation § 8.00 (1999).

6

While there is some question as to whether appellant or Mr. McCall was the aggressor; the fact that appellant
possibly was the aggressor in the altercation does not preclude recovery or act as a bar to his claim. See A.K.,
58 ECAB ___ (Docket No. 06-626, issued October 17, 2006).
7

The Board has held that, when animosity or a dispute which culminates in an assault is imported into the
employment from a claimant’s domestic or private life, the assault does not arise in the performance of duty. See
R.S., 58 ECAB ___ (Docket No. 06-1312, issued August 17, 2007) (where the Board found that appellant’s injuries
due to an assault by a coworker, who was an estranged boyfriend, arose out of a former, private relationship and
were not compensable).
8

The friction and strain doctrine “recognizes that work places employees under strains and fatigue from human
and mechanical impacts creating frictions, which explode in myriads of ways, only some of which are immediately
relevant to their tasks. Personal animosities are created by working together on the assembly line or in traffic.
Others initiated outside the job are magnified to the breaking point by its compelled contacts. No worker is immune
to these pressures and impacts upon temperament. They accumulate and explode over incidents trivial and
important, personal and official. But the explosion point is merely the culmination of antecedent pressures. That it
is not relevant to the immediate task, involves a lapse from duty or contains an element of violation or illegality does
not disconnect it from them nor nullify their causal effect in producing its injurious consequences.” A. Larson,
supra note 5 at § 801(6)(a). The Board has recognized the friction and strain doctrine. See Shirley Griffin,
43 ECAB 573 (1992). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter
2.804.12(b) (March 1994) (Coworker Harassment or Teasing).

4

their employment, engage in acts which minister to their personal comfort do not leave the
course of employment.9 Activities encompassing personal acts for the employee’s comfort,
convenience and relaxation, eating meals and snacks on the premises, including established
coffee breaks and the employee’s presence on the premises for a reasonable time before or after
specific working hours are reasonably incidental to the employment and are in the course of
employment.10 In this case, appellant was relaxing in an employer provided break room while
watching television. His activities fit squarely within the personal comfort doctrine; therefore,
the assault occurred while in the performance of duty.11
The case therefore rests on whether this incident at work caused an injury. The Office
denied appellant’s claim on the basis that the incident bore no relationship to the duties he was
hired to perform. Although causal relationship generally requires a rationalized medical opinion,
a claim may be accepted without a medical report in clear cut traumatic injury claims when one
or more of the following criteria, as set forth in the Office’s procedure manual, are satisfied:
“(1) The condition reported is a minor one which can be identified on visual
inspection by a lay person (e.g., burns, lacerations, insect stings, or animal bites);
“(2) The injury was witnessed or reported promptly, and no dispute exists as to
the fact of injury; and
“(3) No time was lost from work due to disability.”12
In the present case, the injuries reported, a bloody nose and contusions of the face and
scalp, are the types of conditions that can be readily identified on visual inspection by a lay
person. This is supported by the hospital discharge summary of December 8, 2007. Moreover,
there is no dispute that the injury was witnessed and promptly reported to appellant’s supervisor.
No dispute exists as to fact of injury. Therefore, the Board finds that the record establishes that
appellant sustained an injury while in the performance of duty on that date.
Because the Office made no findings as to whether appellant was disabled and, if so, the
extent and nature of such disability, the case will be remanded for further development. It should
make appropriate findings as to his entitlement to medical expenses and whether he missed time
from work due to his injury. After such further development as the Office considers necessary, it
shall issue an appropriate decision on appellant’s entitlement to benefits under the Act.

9

A. Larson, supra note 5 at § 21.

10

See Federal (FECA) Procedure Manual, supra note 8, at Chapter 2.804.4(a)(2) (August 1992) (Industrial
Premises).
11

The Board has held compensable employment incidents where an employee was using a toilet, V.O., 59 ECAB
___ (Docket No. 07-1684, issued May 2, 2008); on a smoking break, Roma A. Mortenson-Kindschi, 57 ECAB 418
(2006); opening a can of fruit on a snack break, Mary Kokich, 52 ECAB 239 (2001); and expectorating a mouth full
of phlegm into a garbage can, Lee R. Haywood, 48 ECAB 145 (1996).
12

Federal (FECA) Procedure Manual, supra note 8, at Causal Relationship, Chapter 2.805.3d(1) (July 2000). See
Timothy D. Douglas, 49 ECAB 558 (1998).

5

CONCLUSION
The Board finds that the December 8, 2007 altercation arose in the performance of duty
and that appellant sustained an employment-related injury.
ORDER
IT IS HEREBY ORDERED THAT the August 28 and February 20, 2008 decisions of
the Office of Workers’ Compensation Programs is reversed. The case is remanded for further
development consistent with this decision.
Issued: July 16, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6