United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
U.S. POSTAL SERVICE, TRENTON
PROCESSING & DISTRIBUTION CENTER,
Trenton, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0653
Issued: September 30, 2021

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 March 24, 2021 appellant, through counsel, filed a timely appeal from an October 23,
2020 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 permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On November 7, 2001 appellant, then a 56-year-old mail processor, filed a traumatic injury
claim (Form CA-1) alleging that on October 9, 2001 she inhaled dust particles contaminated with
anthrax spores while in the performance of duty. OWCP accepted the claim for inhalation of
anthrax. It paid appellant wage-loss compensation on the periodic rolls for total disability
beginning June 16, 2002 and for partial disability based on her earnings from private-sector
employment beginning February 19, 2006. On August 7, 2006 appellant returned to her regular
employment at the employing establishment.
In a June 23, 2011 impairment rating, Dr. Leon H. Waller, an osteopath Board-certified in
internal medicine, recounted appellant’s history of developing a flu-like illness approximately five
weeks after September 11, 2001. He noted that she had been hospitalized for bilateral pneumonia
for 18 days and required “the insertion of bilateral chest tubes to drain fluid in both lungs. ”
Dr. Waller advised that appellant had worked since 2008 as a teacher. He discussed her symptoms
of shortness of breath, especially on exertion. On examination, Dr. Waller found crackling in the
lungs bilaterally, consistent with fibrosis. He diagnosed pulmonary anthrax with bilateral lung
involvement and moderate restrictive lung disease due to residual scarring from appellant’s
employment-related pulmonary anthrax. Dr. Waller opined that she had 47.5 percent permanent
impairment due to pulmonary disease.
On November 29, 2011 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
On June 25, 2012 Dr. Mitchell Horowitz, a Board-certified internist and pulmonologist ,
reviewed the medical records at the request of OWCP. He opined that appellant had 28 percent
whole person impairment rating using the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 Dr. Horowitz found,
however, that she had not reached maximum medical improvement (MMI) as she had not received
treatment with bronchodilators or corticosteroids. He recommended reevaluation after appellant
had received additional treatment.
On July 20, 2012 OWCP informed appellant that there was no evidence to support that she
had reached MMI, and that it was thus unable to determine her entitlement to a schedule award.
On November 21, 2014 OWCP referred appellant to Dr. Leonard B. Berkowitz, a Boardcertified internist and pulmonologist, for a second opinion examination to determine the extent
and degree of any employment-related permanent impairment.

3

A.M.A., Guides (6th ed. 2009).

2

An x-ray of the chest obtained on January 13, 2015 showed severe scoliosis and mild
probable atelectasis likely due to scoliosis or mild focal infiltrate.
In a report dated February 20, 2015, Dr. Berkowitz noted that appellant had returned to her
usual employment for two years after her injury and had subsequently worked teaching adult
education until she retired in August 2014. On examination he found no rales, rhonchi, or wheezes.
Dr. Berkowitz advised that pulmonary function testing showed a forced vital capacity (FVC) of
99.9 percent of predicted, a forced expiratory volume in one second (FEV 1) of 105 percent of
predicted, and total lung capacity of 94 percent of predicted. He indicated that a chest x-ray
showed severe spinal scoliosis that had worsened with time and a retrocardiac density that was
either atelectasis or minimal infiltrate. Dr. Berkowitz found that appellant had no pulmonary
impairment based on her normal lung examination and test results.
On October 8, 2019 OWCP referred appellant to Dr. Nicholas E. Roy, an osteopath, for
another second opinion examination regarding the extent and degree of appellant’s permanent
impairment.
In a report dated October 21, 2019, Dr. Roy discussed appellant’s complaints of dyspnea
after walking more than one or two blocks. On examination, he found diffusely diminished lung
volume with no rales, rhonchi, or wheezing. Dr. Roy performed a six-minute walk test that was
76 percent of the distance predicted. He advised that a pulmonary function study showed an FEV1
of 44 percent of predicted, an FEV 1/FVC of 92 percent of predicted, and mild restriction of total
lung capacity at 77 percent of predicted. Dr. Roy advised that February 8, 2007 x-rays
demonstrated mild hyperexpansion of the lungs, showing possible chronic obstructive pulmonary
disease; a September 12, 2016 x-ray showed moderate dextroscoliosis; and September 5, 2018
x-rays revealed prominent dextroscoliosis of the lumbar spine and minimal infiltrate, likely due to
loss of volume. He diagnosed mild restrictive lung disease most likely due to underlying
dextroscoliosis, moderate dextroscoliosis, and a history of pulmonary anthrax. Dr. Roy discussed
appellant’s history of dyspnea subsequent to her hospitalization for anthrax and pleural effusions
that required drainage with chest tubes. He noted that her dyspnea and restrictive lung disease had
been attributed to scarring from her anthrax exposure. Dr. Roy related that the most likely cause
of appellant’s restrictive lung disease and dyspnea was dextroscoliosis, noting that he found no
interstitial scarring on imaging studies. He advised that her exercise capacity after a six-minute
walk was on the lower limit of normal, and that pulmonary function studies revealed mild
restrictive lung disease that was previously found due to scarring from pulmonary anthrax.
Dr. Roy related that he had “a difficult time attributing [appellant’s] restrictive lung disease and
subsequent complaints of ‘residual scarring’ given [the] lack of roentgenographic evidence of any
interstitial scarring or fibrosis. Review of available imaging does, however, reveal the most likely
etiology of her mild restriction lung disease to be her underlying dextroscoliosis.” He found that
appellant had 11 percent whole person impairment due to her restrictive lung disease.
On March 13, 2020 Dr. David I. Krohn, a Board-certified internist serving as a DMA,
noted that Dr. Roy had found 11 percent whole person impairment due to appellant’s preexisting
dextroscoliosis rather than the accepted employment injury. He found that she had “progressive
severe dextroscoliosis of the spine, a well-known and well accepted cause of restrictive lung
disease.” Dr. Krohn reviewed the reports of Dr. Berkowitz and Dr. Roy and opined that
appellant’s symptoms and mild restriction was due to dextroscoliosis rather than her anthrax

3

exposure. He noted that Dr. Waller had found extreme scarring on x-ray, which was contradicted
by Dr. Roy’s interpretation of the x-ray. Dr. Krohn related, “In my opinion, [Dr. Roy’s] evaluation
of the claimant demonstrated a disputed interpretation of the chest x-ray, lacked the benefit of
results of the [six]-minute walk test, and did not consider the physiologic effect of the claimant’s
scoliosis.” He found that appellant had no ratable impairment due to employment-related anthrax
pneumonia, noting that her symptoms, the x-ray findings, and pulmonary testing were “likely due
to [appellant’s] preexisting and progressive dextroscoliosis….”
By decision dated April 10, 2020, OWCP denied appellant’s schedule award claim.
On April 18, 2020 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on August 13, 2020. Counsel argued that a conflict existed
between Drs. Waller and Roy.
By decision dated October 23, 2020, OWCP’s hearing representative affirmed the
April 10, 2020 decision.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proof to establish permanent impairment of a scheduled member or
function as a result of an employment injury. 4
The schedule award provisions of FECA,5 and its implementing federal regulations,6 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. 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.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.7 The Board has approved the use by

4

G.C., Docket No. 20-0238 (issued February 17, 2021); B.S., Docket No. 19-1717 (issued August 11, 2020);
Tammy L. Meehan, 53 ECAB 229 (2001).
5

Supra note 2.

6

20 C.F.R. § 10.404.

7

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).

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OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 8
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP referred appellant to Dr. Roy for a second opinion examination to determine
whether she had a permanent impairment due to her accepted pulmonary anthrax. On October 21,
2019 Dr. Roy advised that pulmonary testing had showed an FEV1 of 44 percent of predicted, an
FEV1/FVC of 92 percent of predicted, and mild restriction of total lung capacity at 77 percent of
predicted. He further noted that a six-minute walk test had yielded findings on the lower end of
normal. Dr. Roy interpreted the latest x-ray as showing significant dextroscoliosis of the lumbar
spine and minimal infiltrate probably due to volume loss. He advised that imaging showed no
interstitial scarring or chronic interstitial process. Dr. Roy opined that, due to the lack of evidence
of interstitial scarring or fibrosis, he believed that the most likely etiology of appellant’s restrictive
lung disease was her dextroscoliosis. He opined that she had 11 percent whole person impairment
due to her restrictive lung disease. However, Dr. Roy’s opinion is equivocal. First, he stated that
appellant’s restrictive lung disease was most likely due to underlying dextroscoliosis, moderate
dextroscoliosis, and a history of pulmonary anthrax. Dr. Roy then later stated that the most likely
cause of her restrictive lung disease and dyspnea was only dextroscoliosis, noting that he found no
interstitial scarring on imaging studies. The Board has held that medical opinions that are
speculative or equivocal in nature are of diminished probative value.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation, but OWCP
shares responsibility in the development of the evidence to see that justice is done. 9 Once it
undertakes development of the record, OWCP must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case. 10 If the opinion is vague, speculative,
incomplete, or not rationalized, it has the responsibility to secure a supplemental report to correct
the defect.11 As further clarification is required with regard to Dr. Roy’s opinion, the case must
be remanded to OWCP.
On remand, OWCP shall request a supplemental report from Dr. Roy regarding whether
appellant sustained a permanent impairment due to her accepted pulmonary anthrax. Following
this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.

8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

See L.B., Docket No. 19-0432 (issued July 23, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

10

Id.; see also S.A., Docket No. 18-1024 (issued March 12, 2020).

11

T.C., Docket No. 17-1906 (issued May 25, 2018).

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 30, 2021
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flint, MI, Employer
__________________________________________

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

Docket No. 19-1092
Issued: June 24, 2020

Case Submitted on the Record

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

JURISDICTION
On April 19, 2019 appellant, through counsel, filed a timely appeal from a March 21, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right ankle
condition causally related to the accepted December 7, 2017 employment incident.
FACTUAL HISTORY
On December 7, 2017 appellant, then a 45-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, she injured her right ankle while in the
performance of duty. She claimed that she sprained her right ankle when descending stairs, and
she fell down on a walkway, landing on both knees. Appellant stopped work on the date of the
claimed injury.
Appellant submitted a report dated December 7, 2017 from Dr. Michael G. Williams,
Board-certified in emergency medicine, who noted that appellant complained of twisting her right
ankle while descending stairs at work that day, causing her to fall and roll over onto her back. On
physical examination of appellant’s right lower extremity, he observed tenderness and soft tissue
swelling at the right lateral ankle, as well as decreased range of motion (ROM) of the right ankle
secondary to pain. An x-ray of the right ankle taken in the office revealed no acute fracture or
dislocation. Dr. Williams diagnosed right ankle sprain of an unspecified ligament and
administered a pain medication injection. In a duty status report (Form CA-17) of even date, he
listed the date of injury as December 7, 2017, provided a diagnosis “due to injury” of right ankle
sprain, and recommended work restrictions. In a patient discharge form of even date, Dr. Williams
listed the date of injury as December 7, 2017, diagnosed right ankle sprain, and checked a box to
indicate that the condition was work related. In a patient discharge form dated December 14, 2017,
Dr. Williams diagnosed right ankle sprain and recommended work restrictions.
In a patient discharge form dated December 21, 2017, Brianne Frankini, a nurse
practitioner, diagnosed right ankle sprain and recommended work restrictions. In an outpatient
order form dated December 28, 2017, Joy Sandy, a nurse practitioner, reported examination
findings of pain/swelling and decreased ROM of the right ankle. She diagnosed right ankle sprain.
In two January 6, 2018 form reports, Ms. Frankini again diagnosed right ankle sprain and
recommended work restrictions. On January 9, 2018 Jammie Pierson, a nurse practitioner,
diagnosed right ankle sprain, and she detailed work restrictions and a medication regimen.
A January 18, 2018 magnetic resonance imaging (MRI) scan of appellant’s right ankle
contained an impression of partial tear of the anterior talofibular ligament, tear of the
calcaneofibular ligament, bone bruise on the medial aspect of the talar body and neck, and joint
effusion. In a Form CA-17 and a patient discharge form dated January 22, 2018, Ms. Sandy
diagnosed right calcaneofibular ligament tear and partial tear of the anterior talofibular ligament.
She also included examination notes of even date. Appellant submitted unsigned progress reports
dated January 6, 9, 16, and 22, 2018.
In a development letter dated February 5, 2018, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how the reported December 7, 2017 employment incident caused or aggravated

2

a medical condition. It provided a questionnaire for her completion requesting further details
regarding the December 7, 2017 accident. OWCP afforded appellant 30 days to respond.
On February 12, 2018 appellant responded to OWCP’s questionnaire, noting that on
December 7, 2017 she came down stairs, twisted her right ankle inwardly, and heard a “pop.” She
was not able to bear weight and fell to the ground in pain, laying there for approximately 10
minutes. Appellant indicated that she hopped back to her truck and drove back to the office.
Appellant also submitted an attending physician’s report (Form CA-20) dated February 12,
2018 from Dr. Williams who advised that appellant reported that she walked down stairs and
injured her right ankle on December 7, 2017. Dr. Williams noted examination findings of
tenderness and reduced ROM of the right ankle, and he diagnosed right ankle sprain.3
Also received were unsigned progress reports dated December 7, 14, 21, and 28, 2017. An
unsigned injury treatment report dated February 21, 2017 summarized appellant’s medical
treatment visits between December 7, 2017 and January 22, 2018.
By decision dated March 9, 2018, OWCP accepted that appellant’s December 7, 2017
employment incident of twisting her right ankle and falling on stairs occurred as alleged. However,
it denied her claim finding that the medical evidence of record was insufficient to establish a right
ankle condition causally related to the accepted December 7, 2017 employment incident.
On April 6, 2018 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
Appellant subsequently submitted an intake note dated December 7, 2017 in which
Dr. Williams initially noted that she reported twisting her right ankle and falling down stairs that
afternoon. Dr. Williams detailed examination findings and diagnosed right ankle sprain. In a
progress note dated December 14, 2017, he also diagnosed right ankle sprain. In an attending
physician’s report dated February 12, 2018, Dr. Williams noted that appellant reported suffering
an injury while walking down stairs at work on December 7, 2017. He diagnosed right ankle
sprain and checked a box marked “Yes” indicating that the diagnosed condition was caused or
aggravated by the employment activity.4 In a Form CA-17 dated March 30, 2018, Dr. Williams
diagnosed right ankle tear due to the injury, and recommended work restrictions.
In a work excuse note dated July 24, 2018, Dr. Susan Mosier-LaClair, a Board-certified
orthopedic surgeon, indicated that appellant had undergone Brostrom repair surgery on July 10,
2018 for right ankle instability. She advised that appellant was unable to work during her
postoperative recovery and rehabilitation.
Dr. Mosier-LaClair indicated that the first
recommended off-work day for appellant was July 10, 2018 and the estimated date of return to
work was October 15, 2018.

3

On examination of the right ankle, Dr. Williams observed edema, reduced ROM, and sinus tarsi syndrome. He
found that appellant had been partially disabled since December 7, 2017.
4
This February 12, 2018 Form CA-20 contained content similar to that of a previously submitted February 12,
2018 Form CA-20, but the previously submitted version did not contain a checkmark relating to causal relationship.

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Appellant also submitted additional progress notes, including December 21, 2017,
January 6 and 16, 2018 notes from Ms. Frankini, a December 28, 2017 note from Ms. Sandy, and
a January 9, 2018 note from Ms. Pierson. An unsigned injury treatment report dated May 1, 2018
summarized appellant’s medical treatment visits between December 7, 2017 and January 22, 2018.
By decision dated July 30, 2018, OWCP’s hearing representative affirmed the March 9,
2018 decision, finding that the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed right ankle conditions and the accepted December 7,
2017 employment incident.
On January 4, 2019 appellant, through counsel, requested reconsideration of the July 30,
2018 decision.
Appellant submitted an October 4, 2018 report from Dr. Mosier-LaClair who noted that
appellant reported that she sustained an injury at work on December 7, 2017. Dr. Mosier-LaClair
indicated that appellant advised that she fell when she came down stairs and sprained her right
ankle. Appellant reported that she heard a “pop” and was unable to bear her weight, causing her
to fall to the ground. Dr. Mosier-LaClair noted that she first examined appellant on June 13, 2018
and found decreased ROM over the right ankle with dorsiflexion of neutral to 5 degrees and plantar
flexion to 50 degrees. She observed right hindfoot ROM at approximately 80 percent with
tenderness over the lateral ankle ligaments, soft tissue swelling, effusion of the ankle joint, a
positive anterior drawer test, and a positive inversion test for instability. Dr. Mosier-LaClair noted
that an MRI scan of the right ankle which she ordered demonstrated ankle synovitis with a tear of
the lateral ankle ligaments, avulsion fracture of the fibula, and peroneal tenosynovitis.5 She
advised that on July 10, 2018, appellant underwent right ankle surgery consisting of a modified
Brostrom repair of the lateral ankle ligaments for instability and excision of the nonunion of her
fibular avulsion fracture with a peroneal tenosynovectomy.
Dr. Mosier-LaClair further noted in her report that she conducted an examination on
October 4, 2018. She reported ROM findings for appellant’s right ankle, noting dorsiflexion to
neutral and plantar flexion to 50 degrees. Appellant’s right hindfoot ROM was at 80 percent and
she had minor pain and swelling over the lateral ankle ligaments and peroneal tendon sheath.
Dr. Mosier-LaClair opined that appellant’s right ankle pain, swelling, instability, peroneal
tendinitis, and fibular avulsion fracture were “100 percent from her work-related injury on
December 7, 2017 when she fell while at work….” She indicated that appellant’s physical
examination at the time she initially assessed her condition, as well as the MRI scan of the right
ankle, “100 percent confirmed her ankle sprain with a tear of the ankle ligaments and swelling of
the joint, as well as peroneal tenosynovitis….” Dr. Mosier-LaClair advised that appellant’s
disability from this work-related injury commenced on December 7, 2017 and would last through
November 5, 2018.
Appellant also submitted a December 7, 2017 report from Dr. Williams who referenced
appellant’s fall and noted tenderness and decreased ROM of the right ankle. Dr. Williams
diagnosed sprain of calcaneoﬁbular ligament of the left ankle and sprain of tibioﬁbular ligament
of an unspeciﬁed ankle. The findings of a December 7, 2017 x-ray of the right ankle contained an
5

The case record does not contain a report of the MRI scan ordered by Dr. Mosier-LaClair.

4

impression of no acute process. An unsigned injury treatment report dated August 29, 2018
summarized appellant’s medical treatment visits between December 7, 2017 and January 22, 2018.
By decision dated March 21, 2019, OWCP denied modification of the July 30, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 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.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 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.9 The second component is whether the employment incident caused a personal injury.10
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident.11
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.12

6
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

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

11

S.S., Docket No. 18-1488 (issued March 11, 2019).

12

J.L., Docket No. 18-1804 (issued April 12, 2019).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right ankle
condition causally related to the accepted December 7, 2017 employment incident.
Appellant submitted an October 4, 2018 report from Dr. Mosier-LaClair who opined that
appellant’s ankle pain, swelling, instability, peroneal tendinitis, and fibular avulsion fracture were
“100 percent from her work-related injury on December 7, 2017 when she fell while at work….”
Dr. Mosier-LaClair indicated that both appellant’s physical examination results at the time she
initially examined her on June 13, 2018 and a right ankle MRI scan of unspecified date “100
percent confirmed” a right ankle sprain with a tear of the ankle ligaments and swelling of the joint,
as well as peroneal tenosynovitis. While her October 4, 2018 report does discuss the accepted
December 7, 2017 employment incident as a contributing factor to appellant’s right ankle
condition, the Board finds that the report is insufficient because it is conclusory in nature and does
not explain the pathophysiologic mechanism by which the accepted employment incident caused,
aggravated, or accelerated appellant’s injuries.13 The Board has held that a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.14 As such, Dr. Mosier-LaClair’s October 4,
2018 report is insufficient to establish appellant’s claim for an employment-related December 7,
2017 right ankle injury.15
In a work excuse note dated July 24, 2018, Dr. Mosier-LaClair indicated that appellant had
undergone Brostrom right ankle repair surgery on July 10, 2018 and found that she had disability
commencing the date of the surgery. However, this report is of no probative value with regard to
appellant’s claim for an employment-related right ankle injury because Dr. Mosier-LaClair did not
provide an opinion relative to the causal relationship between the right ankle condition and the
accepted employment incident. The Board has held that medical evidence which does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.16
In a patient discharge form dated December 7, 2017, Dr. Williams listed the date of injury
as December 7, 2017, diagnosed right ankle sprain, and checked a box to indicate that the condition
was work related. In an attending physician’s report dated February 12, 2018, he noted that
appellant reported suffering an injury while descending stairs at work on December 7, 2017.
Dr. Williams diagnosed right ankle sprain and again checked a box marked “Yes” indicating that
the diagnosed condition was caused or aggravated by the 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.17 Dr. Williams provided no rationale for his
13

See A.P., Docket No. 19-0224 (issued July 11, 2019).

14

L.G., Docket No. 19-0142 (issued August 8, 2019); C.M., Docket No. 14-0088 (issued April 18, 2014).

15

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

16

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

17

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

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opinion on causal relationship in either report.18 Furthermore, 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, these reports are insufficient to discharge
appellant’s burden of proof.
In two December 7, 2017 narrative reports, Dr. Williams noted that appellant reported a
December 7, 2017 fall at work and he diagnosed right ankle sprain.20 In a duty status report of
even date, he listed the date of injury as December 7, 2017, and provided a diagnosis due to injury
of right ankle sprain. In a patient discharge report and a progress note, both dated December 14,
2017, Dr. Williams diagnosed right ankle sprain. In a February 12, 2018 attending physician’s
report, he diagnosed right ankle sprain and, in a March 30, 2018 duty status report, he provided a
diagnosis due to injury of right ankle tear. The Board finds, however, that these reports are of no
probative value regarding the underlying issue of this case because Dr. Williams did not provide
an opinion that the December 7, 2017 fall caused or contributed to the diagnosed right ankle
conditions. As noted above, 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.21 As such, these reports are insufficient to establish appellant’s claim.
Appellant submitted reports from nurse practitioners in support of her claim. The Board
has held that certain health care providers, such as nurses, physician assistants, and physical
therapists, are not considered physicians as defined under FECA and their reports do not constitute
competent medical evidence.22 Therefore, these reports are of no probative value and are
insufficient to meet appellant’s burden of proof.
Appellant also submitted unsigned progress reports. In addition, the case record contains
unsigned injury treatment reports dated February 21, 2017, and May 1 and August 29, 2018 which
summarized appellant’s medical treatment visits between December 7, 2017 and January 22, 2018.
The Board has held that a 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) and reports lacking proper identification do not constitute probative medical evidence.23
18

Supra note 16

19

Supra note 17.

In another December 7, 2017 report, Dr. Williams diagnosed sprain of calcaneoﬁbular ligament of the left ankle
and sprain of tibioﬁbular ligament of an unspeciﬁed ankle. His diagnosis of a left ankle condition appears to have
been inadvertent as he only reported deficiencies upon physical examination for the right ankle.
20

21

See supra note 16.

22

See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
P.S., Docket No. 17-0598 (issued June 23, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by state law).
23

See C.B., Docket No. 09-2027 (issued May 12, 2010).

7

Therefore, these documents are of no probative value regarding appellant’s claim for an
employment-related December 7, 2017 right ankle injury.
The case record also includes diagnostic reports dated December 7, 2017 and
January 18, 2018. Diagnostic testing reports, standing alone, lack probative value on the issue of
causal relationship as they do not provide an opinion regarding the cause of the diagnosed
conditions and these reports also have no probative value on the underlying issue of the case.24
The Board finds that, because appellant has not submitted medical evidence providing a
rationalized medical opinion that a diagnosed right ankle condition is causally related to the
accepted December 7, 2017 employment incident, she has not met her burden of proof to establish
her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right ankle
condition causally related to the accepted December 7, 2017 employment incident.

24

See Z.G., Docket No. 19-0967 (issued October 21, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the March 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Minneapolis, MN,
Employer
__________________________________________

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

Docket No. 21-1308
Issued: March 30, 2022

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 April 9, 2020 appellant filed a timely appeal from a March 31, 2020 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. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 31, 2020 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 met her burden of proof to establish more than 23 percent
permanent impairment of her left lower extremity, for which she previously received a schedule
award.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.3 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On December 9, 2009 appellant, then a 33-year-old pharmacy technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 10, 2009 she injured her left knee when she
tripped over a stack of totes. OWCP accepted the claim for left knee strain and authorized left
kneecap repair/arthroscopic surgery, which was performed on July 26, 2012. It also authorized
the removal of left support implant, which was performed on February 7, 2014, and total left knee
arthroplasty, which was performed on January 21, 2015.
On December 17, 2015 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
By decision dated February 8, 2016, OWCP granted appellant a schedule award for 23
percent left lower extremity permanent impairment. The award ran 66.24 weeks for the period
January 23, 2016 to April 30, 2017 and was based on the impairment rating of Dr. Ann M. Reiner,
an occupational and environment physician, and the January 14, 2016 report of Dr. David I.
Krohn, a Board-certified internist, serving as an OWCP district medical adviser (DMA). The
diagnostic basis for the schedule award was appellant’s total knee replacement.
By decision dated July 29, 2016, OWCP expanded acceptance of the claim to include left
leg sprain, left lower leg joint pain, left gait abnormality, closed dislocation of patella, c ramp in
limb, and venous embolism and thrombosis of deep vessels of the lower extremity.
On December 2, 2019 appellant filed a Form CA-7 claim for an increased schedule award.
On January 8, 2020 OWCP referred appellant, along with the case record, an updated
statement of accepted facts (SOAF), and a series of questions to Dr. Chester A. DiLallo, a Boardcertified orthopedic, for a second opinion evaluation regarding permanent impairment of
appellant’s left lower extremity. The January 8, 2020 SOAF provided to Dr. DiLallo included past
treatment modalities and noted that appellant previously received a schedule award for 23 percent
permanent impairment of the left lower extremity.
In a report dated February 4, 2020, Dr. DiLallo noted his review of the SOAF and
appellant’s medical records. He determined that appellant had reached MMI on February 4, 2020.
Upon examination of the left knee, Dr. DiLallo found a slightly shortened stance on the left side,
3

Docket No. 18-1620 (issued May 6, 2019).

2

tenderness in the inferior patella and lateral side of the knee in the collateral ligaments region, no
effusion, some slight medial instability, and the patella could not be subluxed by manual pressure.
He also reported full left knee extension and flexion to 120 degrees. Dr. DiLallo referred to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),4 Knee Regional Grid and noted that, for the left knee, the diagnostic key factor was a
total knee replacement arthroplasty with a good result (good position, stable, and functional).5 He
noted a grade modifier for functional history (GMFH) of 3 based on a pain disability questionnaire,
which yielded a raw score of 113. Dr. DiLallo found that a grade modifier for clinical studies
(GMCS) was not applicable and that no other grade modifiers were applicable.6 He explained that
application of the net adjustment formula resulted in a finding of -+1 or grade D, which was the
equivalent of 25 percent permanent impairment of the left lower extremity.
On February 7, 2020 OWCP referred Dr. DiLallo’s report, the medical record, and SOAF,
to Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a district medical adviser
(DMA). In a report dated March 21, 2020, Dr. Slutsky noted his disagreement with Dr. DiLallo’s
impairment rating of 25 percent left lower extremity permanent impairment. Based on his review
of Dr. DiLallo’s report and SOAF, Dr. Slutsky calculated 21 percent left lower extremity
permanent impairment. In reaching this determination, he assigned a class of diagnosis (CDX) for
the diagnosis of total knee replacement with fair or good result of class 2 7 (class 2, default value
of 25 percent). 8 Dr. Slutsky assigned a GMFH of 0 as Dr. DiLallo related that appellant had no
gait derangement, a grade modifier for physical examination (GMPE) of 2 due to general palpatory
tenderness and no instability and no GMCS as it was used to define the class of impairment. 9 He
explained that application of the net adjustment formula resulted in a finding of -2 or grade A,
which was the equivalent of 21 percent permanent impairment of the left lower extremity. 10
Dr. DiLallo noted that this was less than her prior impairment rating.
By decision dated March 31, 2020, OWCP denied appellant’s claim for an increased
schedule award.

4

A.M.A., Guides (6 th ed. 2009).

5

Id. at 511, Table 16-3.

6

Id. at 516, Table 16-6.

7

Dr. Slutsky noted a class 3 instead of class 2. However, this appears to be a typographical error as he refers the
midrange of 25 percent. The midrange is 25 percent for a class 2 while the midrange for a class 3 is 37 percent.
8

Supra note 6.

9

Id. at 516, Table 16-6, 517, Table 16-7, and 519, Table 16-8.

10

Id. at 521.

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LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 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. FECA,
however, does not specify the manner in which the percentage loss of a membe r shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. 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.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.13 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 14
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the left knee, the relevant position of the left leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509. 15 After CDX is
determined from the Knee Regional Grid (including identification of a default grade value), the
net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).16 Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnosis from regional grids
and calculations of modifier scores. 17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
extent of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.18

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
14

M.T., Docket No. 21-0169 (issued October 14, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
15

See supra note 5 at 509-11.

16

Id. at 515-22.

17

Id. at 23-28; see D.W., Docket No. 21-0840 (issued November 30, 2021); R.V., Docket No. 10-1827 (issued
April 1, 2011).
18

See supra note 16 at Chapter 2.808.6(f) (March 2017).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.
In a February 4, 2020 report, Dr. DiLallo, based upon a review of the medical records, a
SOAF, and series of questions, diagnosed a total left knee replacement. He provided a permanent
impairment rating based upon the sixth edition of the A.M.A., Guides. Dr. DiLallo assigned a
CDX for the diagnosis of total knee replacement with fair or good result of class 2 based on a good
result and a GMFH of 3 based on a pain disability questionnaire which yielded a raw score of 113.
He applied the net adjustment formula and calculated 25 percent permanent impairment of the left
lower extremity based upon the DBI methodology.
OWCP referred Dr. DiLallo’s report to the DMA, Dr. Slutsky. In a report dated March 21,
2021, Dr. Slutsky found 21 percent left lower extremity permanent impairment. He disagreed with
Dr. DiLallo’s finding of 25 percent left lower agreement impairment, which he explained was due
to the difference in the application of the GMFH. Dr. Slutsky explained that he determined
appellant GMFH of 0 rather than GMFH 3, as found by Dr. DiLallo, which he explained was based
Dr. DiLallo’s finding of no gait derangement.
Dr. Slutsky properly reviewed the medical evidence and evaluated appellant’s impairment
of the left lower extremity in accordance with the A.M.A., Guides, as a GMFH of 0 rather than
GMFH of 3, based upon no gait derangement. The Board further finds that Table 17-12, cited by
Dr. DiLallo as the basis for finding a GMFH of 3 is inapplicable as it pertains to the pelvis and not
the knee.
As there is no medical evidence of record in conformance with the sixth edition of the
A.M.A., Guides, establishing that appellant has greater impairment than that which was previously
awarded, the Board finds that appellant has not met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her left lower extremity for which she previously received a
schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 30, 2022
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

6


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

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1106
Issued: August 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 15, 2014 appellant, through his representative, filed a timely appeal from the
January 28, 2014 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 established an employment-related injury in the
performance of duty on February 13, 2013, as alleged.
On appeal, appellant’s representative argues that appellant was coerced into returning to
work, that the employing establishment did not provide the accommodations necessary for
appellant to perform his work, he had to twist and turn in an awkward position to do his work,
that he was unable to elevate both of his legs or stand to do some filing as required by his

1

5 U.S.C. § 8101 et seq.

physician and that, as a result thereof, he had a buildup of fluid in his legs which led to an
infection.
FACTUAL HISTORY
On February 13, 2013 appellant, then a 59-year-old city letter carrier, filed a traumatic
injury claim alleging injury to his neck, both shoulders, lower back and both legs as a result of
his federal duties. In an attached statement, he stated that he arrived to work at 8:00 a.m. on
February 13, 2013 and was sitting in his chair with his feet elevated because of a prior job injury
and had to twist his body all the way to the right to take notes. Appellant noted that, after he was
at work about two and a half hours, he twisted and felt pain and pinching on his right side and a
popping sound in his lower back. When getting out of his chair, he felt an increase in pain and
pinching in his neck and shoulders. The employing establishment controverted appellant’s claim
in a letter dated March 2, 2013. It noted that he was previously on the periodic rolls under
OWCP File No. xxxxxx291 until he returned to work on February 11, 2013 to a sedentary
limited-duty job.
By letter dated March 12, 2013, OWCP noted that appellant’s claim was first accepted
for a limited amount of medical expenses and was administratively approved, but that it had now
been reopened. It informed him that certain items were necessary before his claim could be
approved, including medical evidence establishing a causal relationship between the diagnosed
condition and the alleged employment event.
In a March 19, 2013 medical report of an initial orthopedic examination, Dr. Samy F.
Bishai, a physician Board-certified in emergency medicine, diagnosed appellant with cervical
strain; cervical disc syndrome, herniated cervical discs at C3-4, C4-5 and C5-6; bilateral
radiculopathy upper extremities; lumbosacral strain, lumbar disc syndrome; herniated disc at L5S1; facet hypertrophic changes from L3 to S1 levels bilaterally, worse at L3-4 and L4-5; internal
derangement of the right knee joint; internal derangement of the left knee joint; contusion; and
sprain of the lower extremities particularly in the legs, ankles and feet. He noted that at
8:00 a.m. on February 13, 2013, while appellant was working, he had to twist his body all the
way to the right, to work and that, after two and a half hours, he twisted and felt pain, pinching
and a popping sound in his low back. Dr. Bishai opined that appellant has suffered an
aggravation of the preexisting condition due to twisting his back. He stated that appellant was
not in a position to return to any type of work but was forced to return to work due to the opinion
of the second physician in appellant’s other case, an opinion that was contrary to that of
Dr. Bishai, who stated that appellant “could not possibly tolerate this type of work.” Dr. Bishai
concluded, “My opinion was based on several examinations of this patient’s conditions and
review of all diagnostic studies that I have done on this patient. He contended that it is
unfortunate that a second opinion examination of a few minutes would cause an opinion that was
hastily made and the result is continued suffering of this patient and continued problems with his
condition.
By decision dated April 24, 2013, OWCP denied appellant’s claim as it found that the
medical evidence did not demonstrate that the claimed medical condition was related to the
established employment-related event.

2

On May 1, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
In a May 8, 2013 report, Dr. Bishai opined that appellant could not do any work, even
sedentary work.
At the hearing held on November 6, 2013, appellant testified that his prior claim was
filed due to injuries he sustained while slipping and falling getting into his postal vehicle on
February 6, 2012, and that OWCP had accepted this claim. He noted that he was contacted by
the employing establishment on January 9, 2013 to return to work. Appellant testified that, upon
his return to work, the promised accommodations were not in place and he had to sit sideways at
his desk so that he could elevate his legs and that he could not elevate both of his legs at the
same time. He noted that, on the date of the incident, he felt pain in his legs and they became
swollen, he was not able to see his kneecaps and he was in pain. Appellant noted that he saw a
doctor who determined that he had an infection in his leg and that he had an operation after
which he was in the hospital for three weeks. His representative argued that the fluid build-up
inside of appellant’s leg was because he was not able to properly elevate it, he was not
accommodated properly as the employing establishment promised him and that the fluid and
swelling caused the bacteria which required him to have surgery. The representative noted that
appellant got the infection two days after his return to work.
In a December 3, 2013 report, Dr. Bishai reiterated his prior diagnoses. He then
indicated that appellant had a severe setback to his condition because he suffered an infection
that occurred in his legs after he was pressured to return to work against his advice. Dr. Bishai
reported that appellant’s supervisor made appellant return to work against his will and against his
doctor’s opinion, that as a result he suffered an injury shortly after returning to work and only a
few hours later developed an infection. He stated that the connection and causal relationship
between appellant’s development of his serious problem with his legs and his return to work is
very obvious. Dr. Bishai indicated that this constituted a rationalized medical opinion to explain
how appellant’s injury occurred after his return to work resulting in this disastrous result with a
severe infection, surgery and appellant’s misery for several months. He declared appellant
totally and permanently disabled and stated that he should never be forced go to any type of
work in the future based on the desires of his supervisors or the managers of the employing
establishment and to do so will only lead to further disastrous consequences.
In a decision dated January 28, 2014, an OWCP hearing representative affirmed the
April 24, 2013 OWCP decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 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 and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an

3

occupational disease.2 OWCP’s regulations define a traumatic injury as a condition of the body
caused by a specific event or incident or series of events or incidents, within a single workday or
shift. Such condition must be caused by external force, including stress or strain, which is
identifiable as to time and place of occurrence and member or function of the body affected.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
OWCP denied appellant’s claim as he had not established that there was a causal
relationship between the accepted employment incident and his medically diagnosed conditions.
In his claim form, appellant alleged that he suffered injuries to his neck, shoulders, low back and
both legs as a result of his federal duties. Dr. Bishai listed appellant’s diagnoses as cervical
strain; cervical disc syndrome, herniated cervical discs at C3-4, C4-5 and C5-6; bilateral
radiculopathy upper extremities; lumbosacral strain, lumbar disc syndrome; herniated disc at
L5-S1; facet hypertrophic changes from L3 to S1 levels bilaterally, worse at L3-4 and L4-5;
internal derangement of the right knee joint; internal derangement of the left knee joint;
contusion; and sprain of the lower extremities particularly in the legs, ankles and feet. In his
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

20 C.F.R. § 10.5(e).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

4

March 19, 2013 report, he expressed his dismay that appellant returned to work against his
orders and opined that appellant had an aggravation of his preexisting condition due to the
twisting of his back at his federal employment. Dr. Bishai did not specifically indicate which
conditions were aggravated and the mechanism of how appellant’s employment duties
specifically aggravated that specific medical condition. In a May 8, 2013 report, he opined that
appellant was unable to work but did not provide a rationalized opinion on causal relationship.
Then, at the hearing, appellant contended that he suffered an infection in his leg. The
representative argued that the fluid build-up inside appellant’s leg occurred because he was
unable to elevate his leg properly while working. Although appellant mentioned in his claim
form that he experienced significant swelling in his leg, the first extensive discussion of the
infection occurred at the hearing. In a December 3, 2013 report, Dr. Bishai reiterated his prior
diagnoses and stated that, because appellant was forced to go back to work, he developed an
infection and that the connection and causal relationship between this and his return to work was
“obvious.”
The Board finds that the opinion of Dr. Bishai is not sufficiently well rationalized to meet
appellant’s burden of proof. Dr. Bishai did not mention any infection until his December 3, 2013
report and noted at that time that appellant had never had an infection in his legs before. The
Board has held that the mere fact that a condition manifests itself during a period of employment
does not raise an inference of causal relation.8 Medical reports without adequate rationale on
causal relationship are of diminished probative value and do not meet an employee’s burden of
proof.9 Without any explanation or rationale for the conclusion reached, Dr. Bishai’s opinion is
insufficient to establish that appellant’s medical conditions are causally related to the
employment incident of February 13, 2013.10
CONCLUSION
The Board finds that appellant did not establish an injury on February 13, 2013.

8

Daniel O. Vasquez, 57 ECAB 559 (2006).

9

R.W., Docket No. 12-375 (issued October 28, 2013).

10

See Deborah L. Beatty, 54 ECAB 334 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 28, 2014 is affirmed.
Issued: August 20, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting 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.M., Appellant
and
U.S. POSTAL SERVICE, SEVEN OAKS
STATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 13-535
Issued: June 6, 2013

Case Submitted on the Record

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

JURISDICTION
On January 7, 2013 appellant, through her representative, filed a timely appeal from a
November 28, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) that
denied her claim. 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 sustained an injury in the performance of duty on
February 28, 2008.
On appeal, appellant’s attorney asserts that the November 28, 2012 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 9, 2008 appellant, then a 53-year-old sales service associate, filed a traumatic
injury claim, alleging that on February 28, 2008 she injured her right shoulder and elbow when
she fell on ice in an alley. In a statement dated February 28, 2008, she noted that she parked in
an alley next to a parking lot. As she was walking down the alley toward the employing
establishment at 7:19 a.m., appellant slipped and fell. On the claim form the employing
establishment advised that she had regular work hours from 8:00 a.m. to 4:30 p.m. The
employing establishment authorized medical treatment on an OWCP CA-16 form.
In reports dated February 28 and 29, 2008, Dr. Donald Speyer, an osteopath at an urgent
care center, reported a history that appellant slipped and fell on ice injuring her right arm and
shoulder. He noted decreased range of motion and an equivocal rotator cuff test. A shoulder xray was negative for fracture. Dr. Speyer diagnosed shoulder strain and recommended no use of
the right upper extremity. Appellant began working modified duty. She submitted additional
reports dated March 3 to 11, 2008 from Dr. Stephen D. Daly, a Board-certified osteopath
specializing in family medicine and Dr. Michael Burke, an emergency medicine specialist.
Appellant was diagnosed with a shoulder contusion and strain and placed on limited use of the
right upper extremity. A March 14, 2008 magnetic resonance imaging (MRI) scan of the right
shoulder demonstrated a full-thickness tear of the supraspinatus tendon, a partial tear of the head
of the biceps tendon, mild infraspinatus tendinosis and mild acromioclavicular osteoarthritis. In
a March 17, 2008 report, Dr. Daley referred appellant for an orthopedic consultation. On
March 28, 2008 Dr. Matthew Steffes, Board-certified in orthopedic surgery, reviewed the MRI
scan study and diagnosed right full-thickness supraspinatus tear. He submitted additional reports
describing appellant’s condition and advising that she should not use her right arm.
On April 2, 2008 OWCP noted that the claim had been in “quick closed” status but would
be reopened for review and formal adjudication. In correspondence dated April 14, 2008, it
asked the employing establishment whether the parking lot or alley described by appellant were
on federal property and whether the parking lot was owned or operated by the employing
establishment. OWCP also informed appellant of the evidence needed to support her claim.
On April 28, 2008 appellant filed two claims, stating that she sustained recurrences of
disability on April 21 and 25, 2008 when she experienced extreme pain. The employing
establishment controverted her claims. In an attached statement, appellant noted that she had
severe pain in both arms and her back. She had been working for two months with no use of the
right hand and was now having problems with the left hand and arm. Appellant also had
stomach problems due to medication. In an April 29, 2008 statement, she noted that the alley in
which she fell was not federal property and that the parking lot was either owned or operated by
the employing establishment. Appellant reiterated that she injured her right arm and shoulder
when she slipped and fell on February 28, 2008.
On May 14, 2008 the employing establishment advised OWCP that the alley where
appellant fell was not owned by the Federal Government and that there were two doors to access
the post office building.

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By decision dated May 14, 2008, OWCP denied the claim, finding that appellant was not
injured while in the performance of duty because her fall in an alley on February 28, 2008 did
not occur on the industrial premises.
Appellant submitted three additional claims, alleging that she sustained recurrences on
April 28, 30 and May 1, 2008 due to pain in both arms and shoulders and her back. The
employing establishment controverted the claims. On June 2, 2008 OWCP informed appellant
that, as her claim for injury on February 28, 2008 had been denied, she was not entitled to
benefits and her recurrence claims would not be processed.
On June 2, 2008 appellant requested a hearing.
In an undated statement, submitted to OWCP on November 12, 2008, appellant
contended that the parking lot was owned by the employing establishment but would not
accommodate all employees. On February 28, 2008 the parking lot was full. The alley was
owned by the city. Appellant stated that she had to walk in the alley to access the employee
entrance. She provided a map that showed the locations of the employing establishment, the
parking lot, the alley and where she parked on February 28, 2008. The map notes that the alley
was perpendicular to and across the street from the employing establishment and showed that
businesses and houses backed up to the alley. Appellant also submitted a City of Detroit
ordinance regarding property maintenance of snow, ice and a contract for snow removal from the
employing establishment parking lots for employees and postal vehicles that expired on
April 30, 2006.
Appellant retired effective December 31, 2008. She submitted a claim for compensation
for the period May 1 to December 31, 2008. On July 16, 2009 appellant, through her attorney,
requested reconsideration.
In a merit decision dated August 17, 2010, OWCP denied modification of the May 14,
2008 decision.
On September 2, 2010 appellant filed an application for review with the Board. In an
order dated June 28, 2011, the Board noted that on June 4, 2008 she timely requested an oral
hearing from the May 14, 2008 OWCP decision. While appellant also requested reconsideration
on July 16, 2009, it was not proper for OWCP to exercise discretion in issuing the August 17,
2010 decision when the case was within the purview of the Branch of Hearings and Review. The
Board remanded the case to OWCP to schedule an oral hearing.2
At the October 3, 2012 hearing, counsel asserted that appellant had no option about
where to park and had to use the alley to enter the employing establishment. This constituted an
exception to the “going and coming” rule because the premises of the employing establishment
extended to the alley where she fell. Appellant testified that she parked beside the parking lot on
February 28, 2008. The parking lot had snowed and when plowed, some of the excess snow was
in the alley. Appellant fell in the alley close to the exit of the parking lot, as shown by an “X” on
the map she provided. She stated that she proceeded to the back entrance of the employing
2

Docket No. 10-2011 (issued June 28, 2011).

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establishment and then sought medical care. Appellant stopped work in May 2008, had shoulder
surgery in June 2008 and worked a few days from September to November 2008. She retired in
December 2008 and had not received medical treatment since.
By decision dated November 28, 2012, OWCP’s hearing representative affirmed the
August 12, 2010 decision.3
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.4 The phrase
“sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.5 In the compensation field, to occur in the performance of duty, an injury must
occur at a time when the employee may reasonably be said to be engaged in the master’s
business, at a place where he or she may reasonably be expected to be in connection with the
employment and while he or she was reasonably fulfilling the duties of the employment or
engaged in doing something incidental thereto.6
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work, while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment.7 Rather, such injuries
are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers.8 However, many exceptions to the rule have been declared by courts and workmen’s
compensation agencies. One such exception almost universally recognized is the premises rule:
an employee going to or coming from work is covered under workers’ compensation while on
the premises of the employing establishment.9
The premises of the employing establishment, as the term is used in workers’
compensation law, are not necessarily coterminous with the property owned by the employing
establishment; they may be broader or narrower and are dependent more on the relationship of
the property to the employment than on the status or extent of the legal title.10 In some cases,
3

The Board notes that the November 28, 2012 decision contains a typographical error. The decision indicates
that a July 15, 2011 decision was affirmed. There is no decision dated July 15, 2011. The proper decision would be
OWCP’s decision dated May 14, 2008.
4

5 U.S.C. § 8102(a).

5

Bernard Blum, 1 ECAB 1 (1947).

6

R.A., 59 ECAB 581 (2008).

7

J.E., 59 ECAB 119 (2007).

8

Id.

9

T.L., 59 ECAB 537 (2008).

10

S.F., Docket No. 09-2172 (issued August 23, 2010).

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premises may include all the property owned by the employing establishment; in other cases,
even though the employing establishment does not have ownership and control of the place
where the injury occurred, the place is nevertheless considered part of the premises.11
The employing establishment premises may include all the property owned by the
employer,12 and even though an employer does not have ownership and control of the place
where an injury occurred, the locale may nevertheless be considered part of the premises.13 For
example, a parking lot used by employees may be considered a part of the employing
establishment premises when the employer contracted for the exclusive use of the facility or
where specific parking spaces were assigned by the employing establishment.14 Other factors to
be considered include whether the employing establishment monitored the parking facility to
prevent unauthorized use, whether the employing establishment provided parking at no cost to
the employee, whether the general public had access to the parking facility and whether there
was alternate parking available for the employee.15 An employee’s mere use of an offsite
parking lot, by itself, is not sufficient to demonstrate that the parking lot is part of the employing
establishment premises.16
The Board also recognizes the proximity exception to the premises rule, which states that
under special circumstances the industrial premises are constructively extended to those
hazardous conditions which are proximate to the premises and may, therefore, be considered as
hazards of the employing establishment.17 Underlying the proximity exception is the principle
that course of employment should extend to an injury that occurred at a point where the
employee was within the range of dangers associated with the employment.18 The most common
ground of extension is that the off-premises location where the injury occurred lies on the only
route or at least on the normal route, which employees must traverse to reach the plant and the
special hazards of that route become the hazards of employment.19 The main consideration in
applying this rule is whether the conditions giving rise to the injury are causally connected to the
employment.20

11

M.P., Docket No. 10-54 (issued July 27, 2010).

12

Denise A. Curry, 51 ECAB 158 (1999).

13

D.K., Docket No. 11-1029 (issued December 1, 2012).

14

Supra note 11.

15

Supra note 13.

16

Id.

17

Id.

18

F.S., Docket No. 09-1573 (issued April 6, 2010).

19

Id.

20

Supra note 11.

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ANALYSIS
The Board finds that appellant did not sustain an injury in the performance of duty when
she slipped and fell on ice in an alley on February 28, 2008.
Appellant had fixed hours of work from 8:00 a.m. to 4:30 p.m. she was injured when she
slipped on ice at 7:19 a.m. while walking to work in an alley across the street from the
employing establishment. Unless her injury occurred on the actual or constructive premises of
the employing establishment, her injury cannot be considered as occurring in the performance of
duty. The evidence establishes that the alley where appellant fell is not owned by the employing
establishment but by the city of Detroit. Statements from both appellant and the employing
establishment confirm that the location where she fell is not owned by the employing
establishment but is a public alleyway.
Appellant has not established that the alley was used exclusively or principally by the
employees of the employing establishment for the convenience of the employing establishment.21
There is no evidence to support that the use of the alley was restricted to the employees of the
employing establishment. As noted on the map of record, other private, businesses and houses
back up to the alley. The Board therefore finds that appellant’s injury constitutes an ordinary,
nonemployment hazard of the journey itself, shared by all travelers.22 Appellant has not
established that she was injured on the premises of the employing establishment.
The proximity rule does not apply as the hazard causing the injury, an encounter with ice
in a public alley is a hazard common to all travelers in the alley and is not causally related to the
employment. The injury was caused when appellant slipped on ice, which is an ordinary,
nonemployment hazard of the journey from work itself that is shared by all travelers.23
Appellant has not met her burden to establish that she sustained an injury in the
performance of duty because the evidence establishes that her injury did not occur on the
premises of the employing establishment, as the injury occurred while she was walking on city
property.
The Board notes that where, as in this case, an employing establishment properly
executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim
for an employment-related injury, it creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action
taken on the claim.24 The period for which treatment is authorized by a Form CA-16 is limited
to 60 days from the date of issuance, unless terminated earlier by OWCP.25 The record does not

21

Supra note 18.

22

D.C., Docket No. 08-1872 (issued January 16, 2009).

23

Supra note 18.

24

See Tracy P. Spillane, 54 ECAB 608 (2003).

25

See 20 C.F.R. § 10.300(c).

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reflect whether OWCP paid for the cost of appellant’s examination or treatment for the period
noted on the form.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related injury on February 28, 2008.
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
BUSHWICK STATION, Brooklyn, NY,
Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 09-257
Issued: August 25, 2009

Case Submitted on the Record

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

JURISDICTION
On November 4, 2008 appellant filed a timely appeal from a September 22, 2008
nonmerit decision of the Office of Workers’ Compensation Programs. The Board also has
jurisdiction over the Office’s February 27, 2008 nonmerit decision. As over a year has passed
since the date of the last merit decision, dated September 18, 2007, and the filing of this appeal,
on November 4, 2008, the Board lacks jurisdiction over the merits of appellant’s claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 1, 2007 appellant, a 51-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) for a right knee injury. She attributed her injury to a July 26, 2007 incident when,
while standing at her route, she felt a sharp pain in her right knee.
1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

By decision dated September 18, 2007, the Office denied appellant’s claim because the
evidence of record did not establish that she sustained an injury in the performance of duty.
Specifically, the Office noted that she had not established the factual basis underlying her claim.
On October 13, 2007 appellant requested reconsideration submitting an October 25, 2007
medical note signed by Dr. Robert Meyerson, a Board-certified orthopedic surgeon, who
reported that he was treating appellant and diagnosed her with right knee post-traumatic arthritis.
Dr. Meyerson noted that she was temporarily totally disabled.
Appellant submitted a handwritten note in which she reported that on April 28, 2007
while she was delivering mail, she felt a sharp pain in her knee, her knee gave way and she fell.
She stated that a man on her route witnessed her fall and helped her get up. In a separate
handwritten statement, appellant reported that on July 26, 2007 she experienced severe pain in
her right knee and could not walk. She stated that the employing establishment sent her to the
emergency room.
By decision dated February 27, 2008, the Office denied reconsideration of its prior
decision.
Appellant disagreed and on June 30, 2008 requested reconsideration. In support of her
reconsideration request, she submitted an October 25, 2007 report in which Dr. Meyerson noted
that x-rays revealed that appellant had severe bi-compartmental changes in her right knee with
loss of medial joint space, osteophyte formation and loss of joint space in the patellofemoral
joint. Dr. Meyerson reported that appellant’s work-related injury occurred after her right knee
buckled and she fell forward onto her knees. He diagnosed appellant with right knee posttraumatic arthritis, superimposed on osteoarthritis. In a subsequent medical note dated
November 1, 2007, Dr. Meyerson reported that appellant was evaluated on October 25, 2007 for
a work-related right knee injury and that physical examination was significant for swelling and
restricted range of motion. He noted that appellant’s x-rays were positive for post-traumatic
arthritis and that she was recommended to have a right total knee arthroplasty.
In a June 19, 2008 report, Dr. Meyerson reported that he had been treating appellant since
October 25, 2007 for injury to her right knee. He noted that appellant was a letter carrier who
sustained a knee injury when she fell on April 28, 2007 while delivering mail. Dr. Meyerson
noted that, while she has a preexisting condition in her right knee, the April 28, 2007 injury
superimposed on her preexisting condition such that she is now unable to perform her duties as a
letter carrier. He opined, with a reasonable degree of medical certainty, that the April 28, 2007
trauma caused additional damage to her right knee and is the competent producing cause of her
overall state of disability. Dr. Meyerson reported that appellant was a candidate for a right knee
arthroplasty.
Appellant also submitted an unsigned treatment report concerning an appointment on
February 28, 2008.

2

By decision dated September 22, 2008, the Office denied reconsideration because the
evidence submitted was immaterial and not sufficient to warrant review of its prior decisions.2
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by 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.4 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.5 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 on the
merits.6
The Board also has held that the submission of evidence that does not address the
particular issue involved does not constitute a basis for reopening a case.7 While the reopening
of a case may be predicated solely on a legal premise not previously considered, such reopening
is not required where the legal contention does not have a reasonable color of validity.
ANALYSIS
Appellant’s October 13, 2007 and June 30, 2008 reconsideration requests neither alleged
nor demonstrated the Office erroneously applied or interpreted a specific point of law.
Additionally, they did not advance a relevant legal argument not previously considered by the
Office. Therefore, appellant is not entitled to a review of the merits of her claim based upon the
first and second above-noted requirements under section 10.606(b)(2).8
As to the third requirement under section 10.606(b)(2), she also did not submit relevant
and pertinent new evidence not previously considered by the Office. With her reconsideration
requests, appellant submitted two handwritten personnel notes. She also submitted October 25,
2

On appeal, appellant submitted 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). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.) As this evidence was not part of
the record when the Office issued either of its previous decisions, the Board may not consider it for the first time as
part of appellant’s appeal.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he 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).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

8

20 C.F.R. § 10.606(b)(2)(i) and (ii).

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2007 and June 19, 2008 reports as well as a November 1, 2007 note, all of which were signed by
Dr. Meyerson. But this evidence does not relate to the main issue of the present case, i.e.,
whether she sustained an employment incident that occurred in the performance of her duties as
a letter carrier.
The recently submitted evidence, while new, does not establish that appellant
experienced an employment incident at a specific time, place and manner.9 When an employee
claims that she sustained an injury in the performance of duty, she must submit sufficient
evidence to establish that she experienced a specific event, incident or exposure occurring at the
time, place and in the manner alleged. She must also establish that such event, incident or
exposure caused an injury.10
Appellant has not provided any consistent detail regarding how a specific employment
incident or event caused her alleged injury. She has merely stated that she felt a sharp pain and
her knee buckled. None of the evidence appellant submitted with her requests for
reconsideration demonstrated the existence of an employment factor involved in the identified
employment incident which produced the alleged injury and, therefore, her claim lacks
specificity regarding the claimed mechanism of injury.11 While in his October 25, 2007 report
and his November 1, 2007 note Dr. Meyerson reported treating appellant for a work-related
injury that occurred on July 26, 2007 after her right knee buckled and she fell forward onto her
knees, none of this evidence demonstrates that her alleged injury was the result of an
employment incident involving an identified employment factor. A buckled knee, by itself, is
not an employment factor.12 The Board has held that submission of evidence which does not
address the particular issue involved does not constitute a basis for reopening as case.13 As none
of the evidence is either relevant or pertinent to the requisite factual component of her claim,
they furnish no grounds for reopening her claim for further merit review.
Furthermore, the Board notes that, while appellant alleged that her injury occurred on
July 26, 2007, her recently submitted note alleged that she injured her knee on April 28, 2007. In
his June 19, 2008 medical report, Dr. Meyerson also noted her knee injury occurred on April 28,
2007, two months prior to the date of injury claimed by appellant. Therefore this evidence is not
9

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990). To
determine whether a federal employee has sustained a traumatic injury in the performance of duty, it first must be
determined whether the fact of injury has been established. First, the employee must submit sufficient evidence to
establish that she actually experienced the employment incident at the time, place and in the manner alleged.
Second, the employee must submit evidence, in the form of medical evidence, to establish that the employment
incident caused a personal injury. See John J. Carlone, 41 ECAB 354, 356-57 (1989); Julie B. Hawkins, 38 ECAB
393, 396 (1987); Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.2a (June 1995).
10

See E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Arthur C. Hamer, 1 ECAB
62 (1947).
11

Kathryn A. Tuel-Gillem, 52 ECAB 451, 452-53 (2001). In addressing this issue, the Board has stated that to
occur in the course of employment, in general, an injury must occur: (1) at a time when the employee may
reasonably be said to be engaged in his or her master’s business; (2) at a place where he or she may reasonably be
expected to be in connection with the employment; and (3) while he or she was reasonably fulfilling the duties of his
or her employment or engaged in doing something incidental thereto. See id.
12

Bonnie A. Contreras, 57 ECAB 364 (2006).

13

Edward Mathew Diekemper, 31 ECAB 224, 225 (1979).

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relevant or pertinent as it pertains to an injury occurring on April 28, 2007 and provides no
grounds for reopening her claim for further merit review.
Appellant has not established that the Office improperly denied her request for further
review of the merits of its September 18, 2007 decision under section 8128(a) of the Act,
because the evidence she submitted did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office.
Therefore, the Office properly refused to reopen appellant’s claim for further review on
its merits under 5 U.S.C. § 8128.
CONCLUSION
The Board finds the Office properly refused to reopen appellant’s claim for further
review on its merits under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the September 22 and February 27, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 25, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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