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

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

Docket No. 18-1315
Issued: May 5, 2020

Case Submitted on the Record

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

JURISDICTION
On June 20, 2018 appellant, through counsel, filed a timely appeal from a February 26,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the February 26, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 12, 2016 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 28, 2016 she sustained a left shoulder injury, in the form of
left shoulder pain, due to lifting while in the performance of duty. She stopped work on March 29,
2016 and requested continuation of pay.
In an April 14, 2016 development letter, OWCP requested that appellant submit evidence
in support of her claim, including a physician’s reasoned opinion addressing the relationship
between her claimed medical condition and the reported employment incident. It also requested
that she complete and return an attached questionnaire which posed various questions regarding
the nature of her claimed injury and the course of her medical treatment. OWCP afforded appellant
30 days to submit the requested evidence.
In an April 23, 2016 response, appellant submitted a completed questionnaire in which she
reported that on March 28, 2016 she felt pain in her left shoulder after she lifted two mail tubs
(each weighing more than 25 pounds) to her mail case. She discussed her self-treatment regimen
and explained that she delayed in filing a claim because her pain prevented her from visiting the
claim office and she needed to obtain a report from her physician to submit with her claim.
In April 18, 2016 letters, the employing establishment controverted appellant’s traumatic
injury claim as well as her request for continuation of pay, noting that she reported to an attending
physician on April 12, 2016 that she did not experience any trauma or particular accident at work.
However, it advised that appellant’s claim should be considered to be a claim for an occupational
injury, rather than a traumatic injury.
Appellant submitted a March 30, 2016 note from Dr. Osiris Salcedo, a Board-certified
internist, who indicated that appellant’s absence was advised “due to injury or illness” until she
was reevaluated on April 7, 2016. On April 7, 2016 Dr. Salcedo noted that “due to injury”
appellant was excused from work until evaluated by an orthopedic physician. In an April 18, 2016
report, she advised that appellant complained of continuing left shoulder pain. Dr. Salcedo
reported physical examination findings for the left shoulder of limited abduction and local
tenderness, and she diagnosed left shoulder pain and sprain of the left rotator cuff capsule.
On April 12, 2016 Dr. George J. Zambetti, a Board-certified orthopedic surgeon, noted that
appellant complained of experiencing an insidious onset of left subacromial shoulder pain
beginning approximately two weeks prior. Appellant reported that she did not experience any
trauma or particular accident at work. Dr. Zambetti noted that, upon physical examination of the
left upper extremity, appellant exhibited pain but had good strength and very little restriction of
range of motion (ROM). He diagnosed subacromial tendinitis/bursitis of the left shoulder. In an
April 12, 2016 note, Dr. Zambetti advised that appellant could return to work in six weeks. In an
attending physician’s report (Form CA-20) dated April 12, 2016, he listed the date of injury as
March 28, 2016, diagnosed subacromial tendinitis/bursitis of the left shoulder, and checked a box
2

marked “Yes” to indicate that herappellant’s condition was caused or aggravated by an
employment activity. Dr. Zambetti opined that appellant could resume light-duty work on
May 23, 2016.4 In an April 26, 2016 report, he noted in the “history of present illness” portion of
the report that appellant’s “injury is a repetitive stress problem that was created by repetitive lifting
at work” and opined that her condition was “clearly work related.” Dr. Zambetti reported findings
on examination of severely limited ROM of the left shoulder with pain and he diagnosed
subacromial tendinitis of the left shoulder.5
By decision dated May 25, 2016, OWCP denied appellant’s claim because she did not
establish the factual component of fact of injury. It indicated that she provided conflicting accounts
to her attending physicians regarding the cause of her left shoulder problems. OWCP found that
the evidence of record was insufficient to establish that the claimed “injury and/or event(s)
occurred.”6 It concluded, therefore, that the requirements had not been met to establish an injury
as defined by FECA.
On June 8, 2016 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
February 14, 2017, appellant testified that her claim was for an occupational injury and not a
traumatic injury. She testified that she had, on occasion, lifted items at work weighing 25 pounds
or more since July 2014.
In a June 30, 2016 report, Dr. Salcedo noted that appellant reported picking up a bucket of
mail on March 28, 2016 and immediately feeling a click in her left shoulder with pain. Findings
on examination revealed tenderness of the left shoulder joint and decreased ROM of the left
shoulder. Dr. Salcedo diagnosed left shoulder pain and sprain of the left rotator cuff capsule. In
July 5 and 29, 2016 reports, she again diagnosed left shoulder pain and sprain of the left rotator
cuff capsule.7
On July 19, 2016 appellant was treated for her left shoulder condition by Dr. Danilo Sotelo,
a Board-certified orthopedic surgeon. She reported lifting a bucket at work on March 28, 2016
and experiencing a pop in her left shoulder. Examination of the left shoulder revealed restricted
ROM, positive impingement sign, and subacromial tenderness. Dr. Sotelo noted that an MRI scan
of the left shoulder revealed a labral tear and rotator cuff tendinosis, and diagnosed rotator cuff
syndrome and other injury to the tendons of the rotator cuff of the left shoulder. He recommended
that appellant undergo left shoulder surgery. On August 18 and October 6, 2016 Dr. Sotelo noted
that physical examination of the left shoulder revealed limited ROM and he collectively diagnosed
left shoulder pain and sprain of the left rotator cuff capsule and again recommended surgery. In
4
An April 19, 2016 magnetic resonance imaging (MRI) scan of the left shoulder revealed mild diffuse rotator cuff
tendinosis without rotator cuff tear, mild acromioclavicular joint impingement, anterior labral tear, and no fractures
or dislocations.

In an April 26, 2016 letter, Dr. Zambetti indicated that appellant was under his orthopedic care for a “workman’s
compensation issue.”
5

6

The record also contains a May 26, 2016 decision containing the same text, but OWCP later indicated that the
May 25, 2016 was the date of its decision initially denying appellant’s claim.
7

In the July 5, 2019 report, Dr. Salcedo listed the date of injury as March 28, 2016.

3

an October 25, 2016 report, he noted October 6, 2016 examination findings, diagnosed left
shoulder pain, and found appellant totally disabled due to such pain.
On January 20, 2017 appellant was treated by Dr. Gabriel Dassa, a Board-certified
orthopedic surgeon, who reported left shoulder findings of limited ROM, diffuse tenderness, and
positive impingement sign. Dr. Dassa diagnosed left shoulder pain. In a February 16, 2017 letter,
he indicated that appellant had been under his office’s care for a March 28, 2016 injury and updated
his diagnoses to include left shoulder anterior labral tear and mild diffuse left rotator cuff tendinitis.
Dr. Dassa opined that appellant’s condition was the result of working as a letter carrier for the past
two and a half years in which her duties consisted of heavy lifting on a daily basis. Appellant
reported lifting “3 buckets prior to the 2 buckets” weighing approximately 25 pounds each when
she felt a pop in her left shoulder on March 28, 2016. Dr. Dassa indicated that, when an employee
lifts heavy buckets of mail over a long period of time, these actions will cause wear and tear on
the tendons and eventually cause tendons to tear. He noted that these tendons can get irritated or
inflamed resulting in tendinitis and indicated, “[T]his is also a result of overuse of the arm.”
Dr. Dassa noted that an April 19, 2016 MRI scan of the left shoulder revealed mild diffuse rotator
cuff tendinitis, anterior labral tear, and mild acromioclavicular joint impingement. He
recommended arthroscopic surgery of the left shoulder.
In a February 1, 2017 report, Dr. Naglaa Hussein, a Board-certified physical medicine and
rehabilitation physician, noted that appellant reported feeling left shoulder pain after lifting a heavy
bucket at work a year prior. He reported restricted ROM of the left shoulder upon examination
and diagnosed impingement syndrome and adhesive capsulitis of the left shoulder.8 In a
February 14, 2017 report, Dr. Hussein diagnosed impingement syndrome of the left shoulder and
adhesive capsulitis of the left shoulder. He listed the date of injury as March 28, 2016 and noted
that the objective findings were consistent with the history of injury.
By decision dated April 6, 2017, OWCP’s hearing representative affirmed the May 25,
2016 decision, as modified. The hearing representative determined that, based on appellant’s
testimony at the hearing, her claim should be treated as one for an occupational injury, not a
traumatic injury. However, the claim remained denied because the evidence of record was
insufficient to establish causal relationship between the diagnosed conditions and the accepted
factors of her federal employment, i.e., lifting items at work weighing 25 pounds or more since
July 2014.
On November 30, 2017 appellant, through counsel, requested reconsideration of the
April 6, 2017 decision.
Appellant submitted a May 24, 2016 report from Dr. Zambetti who reported examination
findings, including loss of left shoulder ROM with pain upon subacromial motion, and diagnosed
subacromial tendinitis of the left shoulder. In a June 28, 2016 letter, Dr. Zambetti noted treating
appellant conservatively for a workers’ compensation injury to her left shoulder that “appeared to
be subacromial tendinitis.”

8
The case record contains the first page of a January 30, 2017 report which lists Dr. Hussein as a provider, but the
report is incomplete and unsigned.

4

In March 2 and April 4, 2017 reports, Dr. Hussein reported findings that were similar to
those contained in his prior reports. He diagnosed impingement syndrome of the left shoulder and
adhesive capsulitis of the left shoulder. In the April 4, 2017 report, Dr. Hussein listed the date of
injury as March 28, 2016 and noted that the objective findings were consistent with the history of
injury.
In a May 3, 2017 report, Dr. Dassa noted that appellant reported a March 28, 2016 lifting
incident. He diagnosed impingement syndrome of the left shoulder with rotator cuff tendinosis
and left shoulder labrum tear. In another May 3, 2017 report and a May 25, 2017 report, he
diagnosed left shoulder pain and impingement syndrome of the left shoulder. In the May 25, 2017
report, Dr. Dassa listed the date of injury as March 28, 2016 and noted that the objective findings
were consistent with the history of injury. He returned appellant to work without limitations on
May 9, 2017.
By decision dated February 26, 2018, OWCP denied modification of its April 6, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA9 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or medical condition for which compensation is claimed is causally related to the employment
injury.10 These are the essential elements of every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.11
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.12
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.13 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
9

Supra note 2.

10

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
11

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

12

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
13

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

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complete factual and medical background.14 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
Appellant submitted a March 30, 2016 note from Dr. Salcedo in which she indicated that
appellant’s absence was advised “due to injury or illness” and an April 7, 2016 note in which she
noted that “due to injury” appellant was excused from work until evaluated by an orthopedic
physician. In an April 18, 2016 report, Dr. Salcedo diagnosed left shoulder pain and sprain of the
left rotator cuff capsule. In June 30, July 5, and 29, 2016 reports, she again diagnosed left shoulder
pain and sprain of the left rotator cuff capsule.16 However, these reports are of no probative value
regarding appellant’s claim for an occupational left shoulder injury because they do not contain an
opinion on the cause of appellant’s medical condition. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.17 Therefore, these reports are insufficient to establish
appellant’s claim.
In an April 12, 2016 report, Dr. Zambetti listed the date of injury as March 28, 2016,
diagnosed subacromial tendinitis/bursitis of the left shoulder, and checked a box marked “Yes” to
indicate that appellant’s condition was caused or aggravated by an employment activity.
Appellant’s burden of proof includes the necessity of furnishing an affirmative opinion from a
physician who supports his or her conclusion with sound medical reasoning.18 Dr. Zambetti
provided no rationale for his opinion on causal relationship in this report. The Board has held that
when a physician’s opinion on causal relationship consists only of checking “Yes” to a form
question, without more by the way of medical rationale, that opinion is of limited probative value
and is insufficient to establish causal relationship.19 As such, Dr. Zambetti’s April 12, 2016 report
is insufficient to meet appellant’s burden of proof.
In another April 12, 2016 report, Dr. Zambetti noted that appellant complained of
experiencing an insidious onset of left subacromial shoulder pain beginning approximately two
weeks prior. Appellant reported that she did not experience any trauma or particular accident at
work. Dr. Zambetti diagnosed subacromial tendinitis/bursitis of the left shoulder. In an April 12,
2016 note, he advised that appellant could return to work in six weeks. Appellant also submitted a
14

M.V., Docket No. 18-0884 (issued December 28, 2018).

15

Id.; Victor J. Woodhams, supra note 12.

16

In the June 30 and July 5, 2019 reports, Dr. Salcedo noted a reported date of injury of March 28, 2016.

17

See L.F., Docket No. 19-1905 (issued April 10, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018).

18
19

J.A., Docket No. 18-1586 (issued April 9, 2019); Lillian M. Jones, 34 ECAB 379, 381 (1982).
Id.

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May 24, 2016 report in which Dr. Zambetti diagnosed subacromial tendinitis of the left shoulder,
but it does not contain an opinion relative to causal relationship. As none of these reports contain an
opinion on the issue of causal relationship they are of no probative value and are insufficient to
establish appellant’s claim.20
In an April 26, 2016 report, Dr. Zambetti noted that appellant’s “injury is a repetitive stress
problem that was created by repetitive lifting at work” and opined that her condition was “clearly
work related.” He diagnosed subacromial tendinitis of the left shoulder. In an April 26, 2016
letter, Dr. Zambetti indicated that appellant was under his orthopedic care for a “workman’s
compensation issue.” Although he opined that appellant sustained an occupational injury due to
performing work duties over time, he did not provide a rationalized medical opinion which
adequately explained the reasons for this opinion. Dr. Zambetti did not provide a discussion of
appellant’s work duties or explain how they could have been competent to cause or aggravate the
diagnosed left shoulder conditions and, therefore, his reports are of limited probative value
regarding causal relationship. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how an
employment activity could have caused or aggravated a medical condition.21 Therefore, the
April 26, 2016 report and April 26, 2016 note are insufficient to establish appellant’s claim. In a
June 28, 2016 letter, Dr. Zambetti noted treating appellant conservatively for a workers’
compensation injury to her left shoulder that “appeared to be subacromial tendinitis.” Although
Dr. Zambetti again indicated a work-related cause for appellant’s condition in this letter, he did
not provide a rationalized medical opinion on causal relationship and this report is of limited
probative value.22
In a July 19, 2016 report, Dr. Sotelo noted that appellant reported lifting a bucket at work
on March 28, 2016 and experiencing a pop in her shoulder. He diagnosed rotator cuff syndrome
and other injury to the tendons of the rotator cuff of the left shoulder. On August 18 and October 6,
2016 Dr. Sotelo collectively diagnosed left shoulder pain and sprain of the left rotator cuff capsule
and recommended surgery. In an October 25, 2016 report, he diagnosed left shoulder pain, and
found total disability due to such pain. However, these reports are of no probative value regarding
appellant’s claim for an occupational left shoulder injury because they do not contain an opinion
on the cause of appellant’s medical condition.23
In a February 1, 2017 report, Dr. Hussein noted that appellant reported feeling left shoulder
pain after lifting a heavy bucket at work a year prior. He diagnosed impingement syndrome and
adhesive capsulitis of the left shoulder. In a March 2, 2017 report, Dr. Hussein also diagnosed
impingement syndrome of the left shoulder and adhesive capsulitis of the left shoulder. These
reports are of no probative value on appellant’s claim for an occupational injury because
Dr. Hussein did not provide an opinion on causal relationship.24 In February 14 and April 4, 2017
20

See supra note 18.

21

See M.G., Docket No. 18-1616 (issued April 9, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

22

See supra note 22.

23

See supra note 18.

24

See D.K., Docket No. 17-1549 (issued July 6, 2018).

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reports, Dr. Hussein diagnosed impingement syndrome of the left shoulder and adhesive capsulitis
of the left shoulder, listed the date of injury as March 28, 2016, and noted that the objective
findings were consistent with the history of injury. Although Dr. Hussein provided an ostensible
opinion on causal relationship in these reports, they are of limited probative value in establishing
appellant’s claim because they do not contain a rationalized opinion on causal relationship.25
In a February 16, 2017 letter, Dr. Dassa indicated that appellant had been under his office’s
care for a March 28, 2016 injury and had been diagnosed with left shoulder anterior labral tear and
mild diffuse rotator cuff tendinitis. He opined that appellant’s condition was the result of working
as a letter carrier for the past two and a half years in which her duties consisted of heavy lifting on
a daily basis. Dr. Dassa indicated that appellant reported lifting “3 buckets prior to the 2 buckets”
weighing approximately 25 pounds each when she felt a pop in her left shoulder on
March 28, 2016. He noted that, when an employee lifts heavy buckets of mail over a long period
of time, these actions will cause wear and tear on the tendons and eventually cause tendons to tear.
Dr. Dassa indicated that these tendons can get irritated or inflamed resulting in tendinitis and
indicated, “[T]his is also a result of overuse of the arm.” Although he opined that there was a
work-related cause for appellant’s condition in this letter, he did not provide a rationalized medical
opinion on causal relationship and this letter is of limited probative value.26 Dr. Dassa did not
describe appellant’s work duties other than to generally indicate that she engaged in heavy lifting
and he did not adequately explain how these duties would have been competent to cause or
aggravate the diagnosed conditions. His discussion of the mechanism of injury is vague in nature
in that it is expressed in general terms and does not sufficiently reference appellant’s specific
medical findings. Moreover, Dr. Dassa’s opinion is of limited probative value for the further
reason that it is equivocal in nature as he suggested both an occupational and a traumatic cause for
appellant’s medical condition without providing adequate explanation.27
In a January 20, 2017 report, Dr. Dassa had previously diagnosed left shoulder pain, but he
provided no indication that a specific medical condition was related to employment factors.
Similarly, in two May 3, 2017 reports, he collectively diagnosed impingement syndrome of the
left shoulder with rotator cuff tendinosis, left shoulder labrum tear, and left shoulder pain.
However, Dr. Dassa did not provide any opinion on causal relationship in these reports and these
reports are of no probative value.28 In a May 25, 2017 report, he diagnosed left shoulder pain and
impingement syndrome of the left shoulder, listed the date of injury as March 28, 2016, and noted
that the objective findings were consistent with the history of injury. Although Dr. Dassa
suggested a work-related cause for the diagnosed conditions in his May 25, 2017 report, it is of
25

See G.R., Docket No. 19-0940 (issued December 20, 2018). The case record contains the first page of a
January 30, 2017 report which lists Dr. Hussein as a provider, but the report is incomplete and unsigned. This
document is of no probative value regarding the underlying medical issue of the present case because the Board has
held that a medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). See C.B., Docket No. 09-2027 (issued
May 12, 2010).
26

See supra note 22.

27

See E.B., Docket No. 18-1060 (issued November 1, 2018) (finding that an opinion which is equivocal is of limited
probative value regarding the issue of causal relationship).
28

See supra note 18.

8

limited probative value in establishing appellant’s claim because it does not contain a rationalized
opinion on causal relationship.29
Appellant also submitted several reports dated between August 9, 2017 and January 2,
2018 from Dr. Durbhaka who noted that she treated appellant for a right foot injury that appellant
reported occurred due to twisting her right foot at work on August 8, 2017. These reports are of
no probative value with respect to the present case as this case does not concern a claim for an
August 8, 2017 traumatic injury.30
As appellant has not submitted rationalized medical evidence establishing causal relationship
between her diagnosed conditions and the accepted factors of her federal employment, she has not
met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2020
Washington, DC

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

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

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

29

See supra note 22.

30

See supra note 18.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Buffalo, NY, Employer
__________________________________________

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

Docket No. 19-0688
Issued: January 24, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 11, 2019 appellant, through counsel, filed a timely appeal from a
December 27, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot injury
causally related to the accepted June 3, 2010 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On June 4, 2010 appellant, then a 37-year-old customs and border protection officer, filed
a traumatic injury claim (Form CA-1) alleging that on June 3, 2010 she developed a bump on the
bottom of her right foot and experienced pain when walking and when putting pressure on her big
toe while in the performance of duty. She noted that the cause of the injury was unknown, but
indicated that she was working in the vehicle export office and was walking up and down stairs.
Appellant did not stop work.
By decision dated September 10, 2010, OWCP denied appellant’s claim finding that she
had failed to establish fact of injury. By decision dated April 14, 2011, OWCP’s hearing
representative affirmed the September 10, 2010 decision finding that the medical evidence of
record was insufficient to establish causal relationship between the diagnosed condition and the
June 3, 2010 employment incident. By decision dated April 4, 2012, the Board affirmed OWCP’s
April 14, 2011 decision, finding that the medical evidence of record was insufficient to establish
that the June 3, 2010 incident caused or aggravated a diagnosed medical condition.4
On April 2, 2013 appellant requested reconsideration with OWCP. By decision dated
June 18, 2013, OWCP denied modification. Appellant appealed to the Board and, by decision
dated April 16, 2014, the Board affirmed the June 18, 2013 decision, finding that appellant had
not met her burden of proof to establish a right foot injury causally related to the June 3, 2010
employment incident.5
Appellant timely requested reconsideration with OWCP and, by decision dated May 13,
2016, OWCP denied modification. By decision dated June 6, 2016, a representative of OWCP’s
Branch of Hearings and Review denied appellant’s request for a hearing. On appeal the Board
affirmed both the May 13, 2016 merit decision and the June 6, 2016 nonmerit decision. In its
August 8, 2017 decision, the Board found that the medical evidence of record was insufficient to
3

Docket No. 16-1436 (issued August 8, 2017); Docket No. 14-0023 (issued April 16, 2014); Docket No. 12-1203
(issued January 24, 2013); Docket No. 11-1885 (issued April 4, 2012).
4
Docket No. 11-1885 (issued April 4, 2012). On May 9, 2012 appellant’s then counsel appealed the April 4, 2012
decision. By order dated January 24, 2013, the Board dismissed the appeal because OWCP had not issued a decision
within 180 days of the May 9, 2012 application for review. The Board further noted that, to the extent counsel was
seeking reconsideration of the Board’s April 4, 2012 decision, the May 9, 2012 filing postdated the Board’s decision
by more than 30 days and, thus, was untimely. Docket No. 12-1203 (issued January 24, 2013).
5

Docket No. 14-0023 (issued April 16, 2014).

2

establish that appellant sustained a right foot injury causally related to the accepted June 3, 2010
employment incident. The Board further found that OWCP had not abused its discretion in
denying appellant’s request for an oral hearing.6
On June 1, 2018 appellant, through counsel, requested reconsideration with OWCP.
In a May 30, 2018 report, Dr. Neil Allen, a Board-certified internist and neurologist,
indicated that he reviewed appellant’s medical records to opine as to whether there was a causal
relationship between her diagnosed right foot condition and the accepted employment incident of
June 3, 2010. He noted appellant’s medical history and history of injury, and documented his
review of the medical case record. Dr. Allen reported that appellant’s 2010 and 2012 magnetic
resonance imaging (MRI) scans of the right foot revealed tibial sesamoiditis associated with a
stress fracture. He described her employment duties as a Custom & Border Protection officer as
climbing and descending a flight of concrete steps over 70 times (more than two times that required
on an average workday) while working her entire shift on her feet. He noted that the record
reflected that appellant related complaints of worsening right foot pain and was diagnosed with
dipartite fracture of the medial sesamoid and underwent resection of the tibial sesamoid bone due
to complications from avascular necrosis. Dr. Allen cited to medical literature regarding causes
of stress fractures which include “fatigue and insufficiency.” Having explained the known causes
of stress fractures, he opined that appellant’s claim should be accepted for stress fracture of the
right foot. Dr. Allen explained that appellant’s history of repetitive stress at the first metatarsophalangeal joint, repetitively climbing and descending concrete stairs (more than two times than
required on an average workday) combined with constant standing had resulted in fatigue and a
resultant stress fracture. He further explained that the abnormal stress from the climbing and
descending concrete stairs and standing for the entire workday caused increased force through the
first ray due to compression which increased pain and could complicate healing. According to
Dr. Allen, appellant’s right foot injury was directly caused by occupational trauma sustained due
to her employment duties on June 3, 2010. In support of his opinion, he noted that the MRI scans
confirmed the presence of the fracture and associated inflammatory changes and that the medical
record reflected tenderness in the region of the fracture, bruising, and painful dorsiflexion and
plantar flexion of the foot contemporaneously to the date of injury.
By decision dated December 27, 2018, OWCP denied modification of its May 13, 2016
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,8 that an injury was sustained in the performance of duty as alleged, and
6

Docket No. 16-1436 (issued August 8, 2017).

7

Supra note 2.

8
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

3

that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.10
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.11 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.12 The second component is whether the employment incident caused a personal injury.13
An employee may establish that an injury occurred in the performance of duty, as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the injury.14
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.15 The absence of a physical examination by a physician may affect the
weight to be a given medical report, but does not necessarily render it incompetent as medical
evidence.16 In cases where the sole issue is one of causal relationship, a physical examination is
unnecessary as it would be of no consequence and would only result in additional delay and cost.17

9

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
10
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
11

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

12

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

13

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

14

J.P., Docket No. 19-0129 (issued April 26, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019);
Shirley A. Temple, 48 ECAB 404, 407 (1997).
15

See E.J., Docket No. 09-1481 (issued February 19, 2010).

16
See W.C., Docket No. 18-1386 (issued January 22, 2019); M.M., Docket No. 17-0438 (issued March 13, 2018);
C.B., Docket No. 17-0726 (issued July 3, 2017); Melvina Jackson, 38 ECAB 443, 447-52 (1987).
17

See T.H., Docket No. 18-1585 (issued March 22, 2019); Sherry Shreiber, Docket No. 04-1966 (issued January 24,
2005) (the Board held that the fact that an OWCP-selected second opinion physician had not physically examined the
claimant was of no consequence as the diagnosis had already been established, and thus the only question was causal
relationship).

4

ANALYSIS
The Board finds that the case is not in posture for decision.
Preliminarily, it is unnecessary for the Board to reconsider the evidence appellant
submitted prior to the issuance of OWCP’s May 13, 2016 decision because the Board evaluated
that evidence in its August 8, 2017 decision and found that it was insufficient to establish her
claim.18
In support of her claim, appellant submitted a May 30, 2018 report by Dr. Allen who
indicated that he reviewed her medical records to opine as to whether there was a causal
relationship between her right foot injury and the accepted employment trauma on June 3, 2010.
The report establishes that Dr. Allen reviewed the medical record, including diagnostic test results,
and it contains an accurate medical history and history of injury. The report also establishes that
he had had a correct understanding of appellant’s employment duties as a Custom & Border
Protection officer, including climbing and descending a flight of concrete steps over 70 times
(more than two times that required on an average work day) while working her entire shift on her
feet. Dr. Allen reported the correct medical diagnosis and cited to and explained medical literature
regarding causes of the diagnosis of a stress fractures which includes “fatigue and insufficiency.”
With that foundation set forth in his report, he opined that appellant’s claim should be accepted
for stress fracture of the right foot. Dr. Allen explained that appellant’s history of repetitive stress
at the first metatarsophalangeal joint, repetitively climbing and descending concrete stairs
(specifically excessive climbing and descending stairs on the date of the accepted incident)
combined with constant standing on concrete had resulted in fatigue and a resultant stress fracture.
He opined that appellant’s right foot injury was directly caused by occupational trauma sustained
due to her employment duties on June 3, 2010. In support of his opinion, Dr. Allen noted that the
MRI scans of record confirmed the presence of the fracture and associated inflammatory changes,
and that the medical record reflected tenderness in the region of the fracture, bruising, and painful
dorsiflexion and plantar flexion of the foot contemporaneous to the date of injury.
The Board finds that the report of Dr. Allen is sufficient to require further development of
the medical evidence to see that justice is done.19 Dr. Allen is a Board-certified physician who is
qualified in his field of medicine to render rationalized opinions on the issue of causal relationship
and he provided a comprehensive review of the medical record and case history. It is further found
that he provided a comprehensive pathophysiological explanation as to how the mechanism of the
accepted employment incident was sufficient to cause the diagnosed condition and his opinion was
supported by medical literature, the contemporaneous diagnostic testing, and the examination
findings of attending physicians.
It is unnecessary that the evidence of record in a case be so conclusive as to suggest causal
connection beyond all possible doubt. Rather, the evidence required is only that necessary to

18

See L.E., Docket No. 18-1138 (issued February 1, 2019); B.R., Docket No. 17-0294 (issued May 11, 2018).

19
D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

5

convince the adjudicator that the conclusion drawn is rational, sound, and logical.20 Following
review of Dr. Allen’s May 30, 2018 report, it is found that his medical opinion is sufficient to
require further development of appellant’s claim.
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.21 OWCP has an obligation to see that justice is
done.22
On remand OWCP shall refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician shall provide a well-rationalized
opinion as to whether appellant’s diagnosed condition was causally related to the accepted June 3,
2010 employment incident, including an explanation if the opinion conflicts with Dr. Allen’s
explanation of causal relationship. After such further development of the case record as OWCP
deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

20

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein).
21

See supra note 19. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB
219, 223 (1999).
22

See B.C., Docket No. 15-1853 (issued January 19, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the December 27, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with the decision of the Board.
Issued: January 24, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge, dissenting,
The majority opinion finds that, although the medical report of Dr. Neil Allen was
insufficient to meet appellant’s burden of proof to establish their claim, it was sufficient to require
the Office of Workers’ Compensation Programs to further develop the medical evidence. I
disagree.
As a standard proposition, the Board has long held that the weight of medical opinion is
determined by the opportunity for thoroughness of examination, the accuracy, and completeness
of the physician’s knowledge of the facts of the case, the medical history provided, the care of
analysis manifested, and the medical rationale expressed in support of stated conclusions.1
The Federal (FECA) Procedural Manual also sets out parameters for the weighing of
medical evidence.2 It describes a comprehensive report as one which reflects that all testing and
analysis necessary to support the physician’s final conclusions were performed. OWCP’s
procedures provide that, in general, greater probative value is given to a medical opinion based on

1

R.C., Docket No 14-1964 (issued January 22, 2015); Anna C. Leanza, 48 ECAB 115 (1996)

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.810.6(a)(4)
(September 2010).

7

an actual examination. An opinion based on a cursory or incomplete examination will have less
value compared to an opinion based on a more complete evaluation.3
The case at bar raises a novel constellation of facts where the appellant’s physician is
providing a causal opinion without examining the appellant. While arguably considered a treating
physician, Dr. Allen never saw in person nor physically examined appellant. He premised his
opinion solely on what he characterized as medical records that he had reviewed. Dr. Allen did
not, however, identify the records provided for his review and only referenced two MRI scans with
regard to the reports on which he relied.
It is an important distinction that the medical report of Dr. Allen in this case is being used
to remand the case for further development.4 The majority finds that, although his opinion contains
insufficient medical rationale to establish the claim, it is sufficient to remand for OWCP to further
develop the claim. This is effectuated by the 30-year-old Board-created standard, which provides
that “when there is sufficient evidence to establish that the incident occurred, as alleged, but the
medical evidence was insufficiently developed to establish the component of fact of injury,
evidence submitted by appellant, which contains a history of injury, an absence of any other noted
trauma, and an opinion that the condition found was consistent with the original injury is sufficient,
given the absence of any opposing medical evidence, to require further development of the
record.”5 It could be characterized as a reduced subjective standard, which effectively shifts the
burden of proof to OWCP. This case was previously denied by OWCP based on in-person physical
examination(s), which were found to be insufficient under the same reduced standard.
Especially in this posture, I believe certain basic medical examination parameters must be
met. Dr. Allen espoused an opinion on causal relationship without the benefit of direct physical
examination or observations and based his findings on the second-hand opinion(s) of what we
believe to be other physicians. This is the type of injury that lends itself to physical examination
for the purposes of diagnosis and causation, where the physician is able to palpate the patient,
question and receive a first-hand account of the injury and compare same. This remains critical
even when the only issue is causation. I do not agree that words of causation in the ordinary course
alone can be separated from an examination of appellant by appellant’s physician.
Of course, there are occasions where a physical examination cannot be conducted, such as
when appellant is deceased. In that situation, record reviews are required and the weight of
medical reports in the first instance are weighed using the above-mentioned criteria. But those
circumstances are rare and that is inapplicable in the present case.
One could argue that this type of situation is similar to the use by OWCP of a district
medical adviser (DMA). The Board has found that the unique status of the DMA, which allows
for an advisory medical opinion without a physical examination, can be of sufficient probative

3

Id.

4

R.H., Docket No. 17-1966 (issued March 6, 2018); John J. Carlone, 41 ECAB 354 (1989).

5

Id.

8

value in certain circumstances.6 I believe that there is an important distinction between a DMA as
described in Jackson and a treating physician such as Dr. Allen in this case. A treating physician
and DMA do not share the same status. DMAs have a much more defined and narrow purpose.
They are generally charged with the computations of schedule awards, the medical necessity of
requested surgeries, and other such issues that do not require an in-person examination. As well,
they operate under parameters that ensure appropriate review of the evidence, as they have the
benefit of the complete OWCP record, as well as a statement of accepted facts created by OWCP,
which they must follow for the purposes of history, knowledge, and analysis. In Dr. Allen’s
situation, there are no such safeguards.
If Dr. Allen had physically examined appellant, noted an in-person history, reviewed the
entire record, and made his own conclusions, I would be inclined to perhaps be satisfied with his
knowledge and understanding of the matter and agree with the majority that his opinion would be
sufficient to remand for OWCP to pay for a second opinion physician to further develop the
medical evidence. However, the majority finding in my view, without the benefit of in-person
physical examination, effectively shifts the burden of proof to OWCP to disprove the claim based
on a medical report that is of questionable probative value, leading to what I fear will be the advent
of mail order medicine.

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

6

Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such
factors as a physician's knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Omaha, NE, Employer
__________________________________________

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)
)
)

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

Docket No. 10-246
Issued: August 9, 2010

Case Submitted on the Record

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

JURISDICTION
On November 2, 2009 appellant filed a timely appeal from the September 29, 2009 merit
decision of the Office of the Workers’ Compensation Programs. 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 the Office properly suspended appellant’s compensation benefits
effective April 9, 2009 based on her obstruction of a medical examination.
FACTUAL HISTORY
This case has previously been before the Board. On February 25, 2008 the Board set
aside Office decisions dated June 28 and February 9, 2007 and remanded the claim for further
medical development. The Board instructed the Office to secure a medical opinion on the issue
of whether appellant’s left wrist carpal tunnel syndrome and tendinitis of the left elbow was

caused or aggravated by her work duties.1 The facts of the case as set forth in the Board’s prior
decision are incorporated herein by reference.
On March 11, 2008 the Office advised that it would not refer appellant for a second
opinion examination as its review of the evidence warranted the acceptance of appellant’s claim
for the conditions of left carpal tunnel syndrome and left elbow tendinitis. On April 10, 2008 it
accepted appellant’s claim for carpal tunnel syndrome and left sprain of the elbow and forearm.
On December 1, 2008 appellant filed a claim for a schedule award.
On December 16, 2008 the Office requested that appellant submit a report from her
treating physician addressing the extent of any permanent impairment in accordance with the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 She did not respond.
On February 26, 2009 the Office referred appellant together with a statement of accepted
facts and the case record, for a second opinion evaluation to determine whether she sustained any
permanent impairment of her left arm. It advised appellant that the appointment was scheduled
for March 12, 2009 at 9:00 a.m. with Dr. Andrew Lee, a Board-certified physiatrist. The Office
informed appellant of her responsibility to attend the appointment and, if she failed to do so
without an acceptable reason, her compensation benefits could be suspended in accordance with
section 8123(d) of the Federal Employees’ Compensation Act.3 This correspondence was also
sent to appellant’s attorney of record.
In a letter and e-mail dated March 13, 2009, the company that schedules medical
examinations, QTC Medical Services, informed the Office that appellant failed to keep the
scheduled appointment with Dr. Lee on March 12, 2009 at 9:00 a.m. In an e-mail of the same
date, the Office advised that the appointment was not to be rescheduled, but the referral was to
remain open.
On March 17, 2009 appellant contacted the Office stating that she received the
appointment letter for the medical evaluation, but she missed the appointment. It instructed
appellant to send in a written statement explaining why she missed the appointment and to
indicate that she was willing to attend a rescheduled appointment. Appellant inquired as to
whether this had anything to do with her disability benefits through the Office of Personnel
Management. She also inquired as to whether she had to attend the appointment and was

1

Docket No. 07-1878 (issued February 25, 2008). Appellant filed a separate claim for a traumatic injury
sustained on November 30, 2005, file number xxxxxx259, that was accepted for right superior labrum tear. In file
number xxxxxx330, appellant filed an occupational disease claim on September 13, 2006 for a low back injury. The
Office accepted the claim for temporary aggravation of spinal stenosis of the lumbar region. In a May 18, 2009
decision, the Board found that the Office met its burden of proof to terminate benefits, effective June 14, 2007, for
the accepted lumbar condition. Docket No. 09-86 (issued May 18, 2009). These cases were consolidated with the
current claim before the Board.
2

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

3

5 U.S.C. § 8123(d).

2

advised that she did not have to attend the examination; however, if she chose not to attend she
would jeopardize her claim for a schedule award.
By letter dated March 23, 2009, the Office proposed to suspend appellant’s compensation
benefits on the grounds that she failed to report for a medical examination scheduled for
March 12, 2009. It allowed her 14 days to provide good cause for her failure to submit or
cooperate with the second opinion examination and informed him of the penalty provision of
section 8123(d) of the Act. This correspondence was also sent to appellant’s attorney.
Thereafter, appellant submitted magnetic resonance imaging (MRI) scans of the left elbow and
lumbar spine.
In an e-mail dated April 16, 2009, the Office advised QTC Medical Services that the
appointment would not be rescheduled and the referral would be closed. A copy of the e-mail
was sent to appellant’s attorney.
In an April 16, 2009 decision, the Office finalized the proposed suspension of
compensation, finding that appellant failed to attend the medical examination scheduled for
March 12, 2009 and did not establish good cause for refusing to submit to the examination. It
noted that on February 26, 2009 appellant was directed to report for examination by Dr. Lee on
March 12, 2009 but failed to attend the appointment. The Office noted that, by letter dated
March 23, 2009, appellant was provided with 14 days to provide written evidence justifying her
failure to attend the examination, but she did not respond. The suspension was effective
April 9, 2009.
On April 20, 2009 appellant’s attorney advised that she was in the hospital when she was
supposed to attend the scheduled examination and provided a doctor’s note. In a prescription
note dated April 8, 2009, Dr. Aly Hassan, a Board-certified psychiatrist, noted that appellant was
hospitalized on March 28, 2009 and her discharge date had not been determined.
On April 22, 2009 appellant requested a telephonic hearing which was held on
August 4, 2009. She testified that she was hospitalized for depression, but was unsure of the date
of admission and indicated that she had problems prior to admission. The hearing representative
inquired as to why counsel did not contact the Office regarding her failure to attend the
examination. Appellant’s attorney noted that he had contact with her on March 17, 2009 and
March 31, 2009. He was advised by appellant’s sister on April 8, 2009 that she was in the
hospital. The hearing representative requested that appellant submit evidence documenting the
initial date of her hospitalization. No additional evidence was received to the record.
In a September 29, 2009 decision, the hearing representative affirmed the April 16, 2009
decision.
LEGAL PRECEDENT
Section 8123 of the Act authorizes the Office to require an employee, who claims
disability as a result of federal employment, to undergo a physical examination as it deems
necessary.4 The determination of the need for an examination, the type of examination, the
4

5 U.S.C. § 8123(a).

3

choice of locale and the choice of medical examiners are matters within the province and
discretion of the Office.5 The Office’s federal regulations at section 10.320 provide that a
claimant must submit to examination by a qualified physician as often and at such time and
places as the Office considers reasonably necessary.6 Section 8123(d) of the Act and section
10.323 of the Office’s regulations provide that, if an employee refuses to submit to or obstructs a
directed medical examination, his or her compensation is suspended until the refusal or
obstruction ceases.7 However, before the Office may invoke these provisions, the employee is
provided a period of 14 days within which to present in writing his or her reasons for the refusal
or obstruction.8 If good cause for the refusal or obstruction is not established, entitlement to
compensation is suspended in accordance with section 8123(d) of the Act.9
ANALYSIS
The Board finds that appellant refused to submit to the March 12, 2009 second opinion
examination with Dr. Lee within the meaning of section 8123 of the Act.
The Office directed appellant to attend a second opinion evaluation with Dr. Lee, a
Board-certified physiatrist. It properly determined that it required an assessment of any
permanent impairment in order to determine whether she was eligible for a schedule award. The
Office had previously requested that appellant provide a report from her physician evaluating her
permanent impairment. However, no evidence was submitted. On February 26, 2009 the Office
referred appellant to Dr. Lee for a second opinion evaluation. It advised her that the examination
was scheduled for March 12, 2009 at 9:00 a.m. and instructed her to attend the examination. The
Office advised appellant that her compensation could be suspended if she refused or obstructed
the examination. A copy of this letter was sent to appellant’s attorney.
On March 23, 2009 the Office afforded appellant 14 days to provide good cause for her
failure to attend the March 12, 2009 examination and further advised her of the penalty provision
of section 8123(d) of the Act for failure to attend such an examination. A copy of this
correspondence was also sent to appellant’s attorney. She did not contact the Office or submit
any evidence addressing why she did not appear for the scheduled March 12, 2009 examination.
The Board has recognized the Office’s responsibility in developing claims.10 Section
8123 authorizes it to require an employee, who claims disability as a result of federal
5

James C. Talbert, 42 ECAB 974, 976 (1991).

6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
9

Id.; see Scott R. Walsh, 56 ECAB 353 (2005); Raymond C. Dickinson, 48 ECAB 646 (1997).

10

Walsh, id.

4

employment, to undergo a physical examination as the Office deems necessary. The
determination of the need for an examination, the type of examination, the choice of locale and
the choice of medical examiners are matters within the province and discretion of the Office.
The only limitation on this authority is that of reasonableness.11 The referral to an appropriate
specialist in appellant’s area at the Office’s expense cannot be considered unreasonable. It
clearly acted within its discretion by referring appellant for a second opinion examination to
assess any impairment related to her left upper extremity conditions after she failed to provide an
impairment evaluation from an attending physician. Neither appellant nor her attorney
responded to the notice of proposed suspension or otherwise provided reasons for not attending
the examination. Appellant failed to establish good cause.
After the Office’s April 16, 2009 decision suspending appellant’s right to compensation,
she advised the Office that she was hospitalized at the time she was supposed to attend the
scheduled examination. Appellant submitted an April 8, 2009 prescription note from
Dr. Hassan. He noted that she was hospitalized on March 28, 2009 and her discharge date had
not been determined. However, the Board finds this evidence is insufficient to establish that
appellant was unable to attend the March 12, 2009 examination. Dr. Hassan stated that her
hospitalization began 16 days after the scheduled examination. It does not otherwise address or
establish her inability to attend the examination on March 12, 2009.
Appellant testified at her hearing that she was hospitalized for depression. She was
unsure of the exact date of admission and generally indicated that she was having problems prior
to admission. The hearing representative requested that appellant submit documentation
concerning her hospitalization, but no responsive evidence was received prior to issuance of the
hearing representative’s decision.
The Board finds that appellant did not establish good cause for her failure to appear for
the March 12, 2009 examination. The Office properly invoked 5 U.S.C. § 8123(d) and
suspended her entitlement to compensation benefits.12
CONCLUSION
The Board finds that the Office properly suspended appellant’s compensation benefits
based on her failure to attend the second opinion medical examination scheduled for
March 12, 2009.

11

See Id.

12

After issuance of the Office’s September 29, 2009 decision, appellant submitted additional evidence. The
Board may not consider this new evidence on appeal as its review of a case is limited to the evidence in the case
record that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c)(1).

5

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 08-189
Issued: May 21, 2008

Case Submitted on the Record

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

JURISDICTION
On October 25, 2007 appellant filed a timely appeal from a May 23, 2007 decision by a
hearing representative of the Office of Workers’ Compensation Programs that affirmed a
schedule award for 20 percent impairment of the right upper extremity. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has established that she has more than 20 percent
impairment of the right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
On June 17, 2004 appellant, then a 40-year-old part-time flexible clerk, filed an
occupational disease claim stating that she developed carpal tunnel syndrome in the performance
of duty. In a June 13, 2004 report, Dr. Thomas P. Harder, an internist and Board-certified
rheumatologist, diagnosed carpal tunnel syndrome involving the right wrist and hand and noted
right wrist synovitis. The Office accepted appellant’s claim for right carpal tunnel syndrome,

authorized a right carpal tunnel release and paid appropriate compensation. She stopped work
and underwent surgery on July 16, 2004. Appellant returned to a light-duty assignment on
September 13, 2004 and resumed full-duty work on November 18, 2004.
An August 27, 2004 electromyogram (EMG) report, by Dr. Steven Mandel, a Boardcertified neurologist, diagnosed mild right carpal tunnel syndrome and chronic denervation of the
ulnar and radial nerves. In a September 9, 2004 report, he noted appellant’s history of carpal
tunnel syndrome and complaints of continuing symptoms after surgery. Dr. Mandel stated that
appellant reported that her pain was worse after surgery and she had a positive Tinel’s sign in her
right wrist. In a September 30, 2004 report, Dr. Mark Rekant, a Board-certified orthopedic and
hand surgeon, noted appellant’s complaints of ongoing pain and numbness. He diagnosed
persistent right median nerve neuropathy. Dr. Rekant found that appellant had some decreased
sensation in the index, middle and ring fingers, but had full digital range of motion of the right
hand.
In a May 26, 2005 report, Dr. Nicholas Diamond, an osteopath, noted appellant’s history
of carpal tunnel syndrome and complaint of ongoing pain, numbness and tingling in the right
upper extremity. He also found a decreased grip strength and difficulty with fine dexterity in the
right hand. Dr. Diamond found that appellant’s right hand exhibited diminished range of motion
with pain at the extremes, decreased sensation and diminished grip and pinch strength. He also
noted that appellant’s Tinel’s sign, Phalen’s sign, carpal compression test and pronator
compression test were all positive. Dr. Diamond opined that the cumulative and repetitive workrelated injury was the competent producing factor for the claimant’s subjective and objective
findings. He rated appellant’s impairment as follows: 31 percent impairment for sensory deficit
in the right median nerve and 20 percent impairment for right lateral pinch deficit, which he
combined to find 45 percent impairment. Dr. Diamond referenced the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment1 (A.M.A.,
Guides), Table 16-102 and Table 16-153 in support of his impairment rating for sensory deficit
and Table 16-344 of the A.M.A., Guides in support of his impairment rating for right lateral
pinch deficit. He then added 3 percent for pain, citing Figure 18-15 of the A.M.A., Guides,
finding a total of 48 percent impairment of the right arm. Dr. Diamond concluded that appellant
reached maximum medical improvement effective May 26, 2005.
On July 25, 2006 appellant claimed a schedule award.
On October 2, 2006 the Office referred appellant, together with a statement of accepted
facts, to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, for a second opinion
examination to determine the degree of any work-related permanent impairment.
1

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

2

Id. at 482, Table 16-10.

3

Id. at 492, Table 16-15.

4

Id. at 509, Table 16-34.

5

Id. at 574, Figure 18-1.

2

In an October 17, 2006 second opinion report, Dr. Hanley discussed appellant’s history of
carpal tunnel syndrome and carpal tunnel release. He explained that, although appellant
complained of total numbness in her right hand, “it is obvious that she is utilizing the hand
during the course of the conversation and one would have to suggest that she has disordered
sensation but no absent sensation.” Dr. Hanley also noted that appellant had full range of motion
in the small joints and that her hands appeared normal, with none of the “abnormality of the skin
that would typically be seen in an individual who has complete loss of sensation.” He found that
she did have a positive Tinel’s sign and some sensitivity in the surgical area. Dr. Hanley
diagnosed right carpal tunnel syndrome. In rating appellant’s right upper extremity impairment,
he utilized Tables 16-106 and 16-157 of the A.M.A., Guides. Dr. Hanley explained that appellant
had positive clinical findings of median nerve dysfunction and distorted superficial tactile
sensibility with diminished light touch and two-point discrimination with abnormal sensation.
Therefore, appellant fit into the Grade 3 category for sensory deficit pursuant to Table 16-10.8
Dr. Hanley determined, based on clinical judgment, that appellant’s sensory deficit “should be
rated at 50 percent.”9 He noted that, based on Table 16-15,10 the maximum impairment for
sensory deficit or pain of the median nerve was 39 percent. Dr. Hanley calculated appellant’s
impairment at 19.5 percent or 50 percent of 39 percent, which he rounded up to 20 percent. He
explained that he did not find pinch strength deficit, motor loss or any other basis for rating
appellant’s impairment. In a work capacity evaluation, also prepared on October 17, 2006,
Dr. Hanley indicated that appellant could work for eight hours per day without restrictions.
In an October 28, 2006 report, an Office medical adviser reviewed the medical evidence.
He concurred with Dr. Hanley’s ratings that appellant’s right upper extremity impairment was
20 percent. The medical adviser explained that “Dr. Hanley specifically addressed the accepted
condition of right carpal tunnel syndrome and he provided full documentation of how he arrived
at the claimant’s right upper extremity rating.” By contrast, he noted that Dr. Diamond’s rating
did not reflect the physical examination results and that the doctor did not give a detailed
explanation of his calculation methods. The medical adviser also noted that Dr. Diamond
recommended an additional three percent impairment for pain, which was already addressed in
the rating for the sensory component of median nerve dysfunction under Table 16-10 of the
A.M.A., Guides.
By decision dated November 13, 2006, the Office granted appellant a schedule award for
20 percent impairment of the right upper extremity.
On November 17, 2006 appellant requested an oral hearing, which was held on
March 20, 2007. In a February 19, 2007 report, Dr. Mandel noted appellant’s continuing
6

See supra note 2.

7

See supra note 3.

8

See supra note 2.

9

See id. A Grade 3 classification for sensory deficit or pain provides for a range of a 26 to 60 percent deficit for
the affected nerve.
10

See supra note 3.

3

complaints of tingling and numbness. He indicated that she had weakness and difficulty with
manipulation in both hands. Dr. Mandel noted that a February 15, 2007 EMG and nerve
conduction study revealed prolonged median responses and carpal tunnel syndrome bilaterally,
although he found normal sensation. He diagnosed bilateral carpal tunnel syndrome. Appellant
also provided a copy of the February 15, 2007 nerve conduction study.
By decision dated May 23, 2007, the hearing representative affirmed the November 13,
2006 schedule award. She noted that Dr. Hanley’s impairment rating was based on more current
test results and objective findings and conformed with the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act11 and its
implementing regulations12 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.13
ANALYSIS
The Board finds that appellant has not established that she has more than 20 percent
impairment of the right arm, for which she received a schedule award.
In support of her claim, appellant provided a May 26, 2005 report from Dr. Diamond,
who determined that she had 31 percent impairment due to sensory deficit and 20 percent
impairment for right lateral pinch deficit with reference to Tables 16-10 and 16-15 of the
A.M.A., Guides. In finding 20 percent impairment for right lateral pinch deficit, Dr. Diamond
referenced Table 16-34. However, he did not provide a full explanation or discussion of how he
utilized the cited provisions in determining appellant’s impairment rating.
Although
Dr. Diamond noted his physical examination findings, he did not explain how he applied the
A.M.A., Guides to reach his impairment rating. Furthermore, he did not explain why he used
pinch strength testing to rate impairment due to carpal tunnel syndrome when in the A.M.A.,
Guides do not provide for using loss of pinch strength to rate impairment in case of carpal tunnel

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404 (1999).

13

See id.; B.C., 58 ECAB ___ (Docket No. 06-925, issued October 13, 2006).

4

syndrome.14 Similarly, Dr. Diamond did not explain the basis for attributing an additional three
percent impairment for pain under Chapter 18 of the A.M.A., Guides when he had already rated
sensory loss under Chapter 16. The Board has held that physicians should not use Chapter 18 to
rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides.15
Dr. Diamond therefore provided a duplicative rating for sensory loss. Moreover, the Board notes
that Table 16-10,16 which he referenced, rates pain in determining impairment for peripheral
nerve disorders. Accordingly, the Board finds that Dr. Diamond’s impairment rating is of
diminished probative value. He did not properly explained how his rating comports with the
provisions of the A.M.A., Guides.17
By contrast, Dr. Hanley’s October 17, 2006 report was detailed and reasoned. He
presented his findings on physical examination and thoroughly explained how he applied the
specific provisions of the A.M.A., Guides to reach his impairment rating. Dr. Hanley related his
physical examination findings to the A.M.A., Guides, noting that appellant fit into the Grade 3
category for sensory deficit pursuant to Table 16-10.18 Appellant exhibited positive clinical
findings of median nerve dysfunction and distorted superficial tactile sensibility with diminished
light touch and two-point discrimination with abnormal sensation. Dr. Hanley used his clinical
judgment to find that appellant’s sensory deficit was 50 percent (within the Grade 3 range of 26
to 60 percent). He multiplied the 50 percent deficit grade by the maximum 39 percent
impairment of the median nerve allowed under Table 16-15.19 The Board finds that Dr. Hanley
properly explained how he calculated impairment pursuant to Tables 16-10 and 16-15. He found
no other basis on which to attribute permanent impairment. Dr. Hanley noted that appellant had
full range of motion in the small joints of the hands, no motor deficit and no pinch strength
deficit. In an October 28, 2006 report, an Office medical adviser reviewed the record and
concurred with Dr. Hanley’s findings. The Board finds that Dr. Hanley’s October 17, 2006
report establishes that appellant has no more than 20 percent permanent impairment of the right
arm.
On appeal, appellant asserts that there is a conflict in the medical evidence between
Dr. Diamond and Dr. Hanley. However, there is no conflict in the medical evidence To
14

See A.M.A., Guides, at 495 (sets forth three scenarios for rating impairment after optimal recover from surgical
decompression), 508 (provides that impairment ratings based on objective anatomic findings should take precedence
over ratings based on loss of strength based on measurements of grip and pinch strength); see also Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (November 2002) (grip and/or
pinch strength should not be used to calculate upper extremity impairment caused by a compression neuropathy such
as carpal tunnel syndrome).
15

Linda Beale, 57 ECAB 429 (2006).

16

See supra note 2.

17

See Carl J. Cleary, 57 ECAB 563 (2006) (an opinion which is not based upon the standards adopted by the
Office and approved by the Board as appropriate for evaluating schedule losses is of little probative value in
determining the extent of a claimant’s impairment).
18

See supra note 2.

19

See supra note 3.

5

constitute a conflict of medical opinion, the opposing physicians’ reports must be of virtually
equal weight and rationale.20 As noted Dr. Diamond’s and Dr. Hanley’s reports are not of
virtually equal weight and rationale. Dr. Diamond did not present adequate explanation or
reasoning in support of his impairment rating conform with the A.M.A., Guides and Office
procedures. Rather, he simply noted his recommended rating and cited generally to certain
tables of the A.M.A., Guides without explaining his calculation methods or discussing the
physical examination findings. Dr. Hanley’s report, as noted, properly applied the A.M.A.,
Guides in determining impairment and detailed his calculation methods.
CONCLUSION
The Board finds that appellant has not established that she had more than 20 percent
impairment of the right upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

20

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, JFK STATION,
Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-73
Issued: May 10, 2012

Case Submitted on the Record

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

JURISDICTION
On October 20, 2011 appellant filed a timely appeal from a September 27, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 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 aggravation of a left foot condition causally
related to factors of his federal employment.
FACTUAL HISTORY
On August 12, 2011 appellant, then a 56-year-old window clerk, filed an occupational
disease claim alleging that he sustained an aggravation of left foot pain and swelling as a result
of prolonged standing in the course of his federal employment. He stopped work on
1

5 U.S.C. § 8101 et seq.

August 4, 2011. In a statement accompanying his claim, appellant related that he broke three of
his toes in an August 2010 nonwork-related motor vehicle accident. He asserted that
“[p]rolonged standing at work” caused his left foot to swell.
On August 3, 2011 Dr. Jonathan R. Perryman, a Board-certified orthopedic surgeon,
released appellant for modified work standing no more than two hours per day. In a form report
dated August 10, 2011, he provided a history of appellant fracturing the second, third and fourth
metatarsals of the left foot on August 28, 2010. Dr Perryman diagnosed left foot pain with
healed metatarsal neck fractures. He checked “yes” that the condition was caused or aggravated
by employing establishment and provided as a rationale that appellant experienced pain with
“prolonged standing.” In a work status report of the same date, Dr. Perryman found that
appellant could return to light-duty employment standing no more than two hours a day.2
On August 15, 2011 the employing establishment controverted the claim. It noted that
appellant’s left foot condition resulted from an August 2010 motor vehicle accident. The
employing establishment related that he had been employed for around 17 weeks and that he
worked an average of 32 hours per week sitting four hours per day and standing two hours per
day.
By letter dated August 23, 2011, OWCP requested that appellant provide additional
factual and medical evidence. It advised him that the evidence was currently insufficient to show
that he experienced the work factors alleged to have resulted in the injury or that he sustained a
medical condition due to his employment. OWCP requested that appellant submit a detailed
statement describing the work activities he believed responsible for his condition. It further
requested that he submit a rationalized medical report from his attending physician explaining
how work factors caused or aggravated a diagnosed condition and addressing whether standing a
few hours per day aggravated a preexisting condition.
In a light-duty status form dated August 23, 2011, Dr. Perryman opined that appellant
could work with restrictions on standing more than two hours per day. In a duty status report of
the same date, he found increased pain and swelling and advised that appellant could resume
work with restrictions.
By decision dated September 27, 2011, OWCP denied appellant’s occupational disease
claim after finding that he did not establish the claimed work factors and did not submit medical
evidence sufficient to show a diagnosed condition causally related to his employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
2

The August 10, 2011 work status report was signed by all the physicians at Dr. Perryman’s practice.

3

Supra note 1.

2

disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.9 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,10 must be one of reasonable medical certainty11 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.12
ANALYSIS
Appellant filed an occupational disease claim alleging that prolonged standing at work
aggravated a preexisting left foot condition. The employing establishment controverted the
claim, arguing that he stood only two hours per day. By letter dated August 23, 2011, OWCP
requested that appellant submit a detailed statement describing the work factors to which he
attributed his condition. Appellant did not respond with any additional factual information. It is
his burden to submit a detailed description of the employment factors or conditions that he
believes caused or adversely affected the condition or conditions for which compensation is

4

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Michael R. Shaffer, 55 ECAB 386 (2004).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

8

Beverly A. Spencer, 55 ECAB 501 (2004).

9

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

10

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

11

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

12

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

3

claimed.13 The Board thus finds that appellant has not established the alleged employment
factors of prolonged standing at work.
Additionally, the medical evidence is insufficient to establish that appellant sustained an
employment-related condition. On August 3, 2011 Dr. Perryman advised that appellant could
work with restrictions of standing no more than two hours per day. He further provided duty
status reports and work releases on August 23, 2011 finding that appellant could work standing
no more than two hours per day. Dr. Perryman, however, failed to address the cause of
appellant’s condition and thus these reports are of little probative value.14
In an August 10, 2011 form report, Dr. Perryman indicated that the history of injury was
appellant fracturing the second, third and fourth metatarsals of the left foot on August 28, 2010.
He diagnosed left foot pain and checked “yes” that the condition was caused or aggravated by
employment as appellant sustained increased pain with prolonged standing at work. As
discussed, however, appellant has not established the occurrence of the identified work factor of
prolonged standing at work and thus Dr. Perryman’s report is not based on an adequate medical
history from the report. Further, Dr. Perryman did not explain how standing at work aggravated
a preexisting nonemployment-related condition; consequently, his report is of little probative
value.15
Appellant submitted new evidence with his appeal. The Board has no jurisdiction to
review new evidence on appeal.16 Appellant may submit new evidence or argument with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5
U.S.C. § 8128 and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an aggravation of a
left foot condition causally related to factors of his federal employment.

13

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

14

See K.W., 59 ECAB 271 (2007); Conard Hightower, supra note 9.

15

See John W. Montoya, supra note 11.

16

See 20 C.F.R. § 501.2(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5