United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.L., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Jamaica, NY, Employer

__________________________________________

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Docket No. 17-1460

Issued: December 21, 2018

Appearances: Case Submitted on the Record

Thomas S. Harkins, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On June 19, 2017 appellant, through counsel, filed a timely appeal from a March 24, 2017 

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 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.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish an injury causally 

related to the accepted November 26, 2011 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as set forth

in the Board’s prior decision are incorporated herein by reference. The relevant facts are as 

follows.

On November 27, 2011 appellant, then a 53-year-old express mail clerk, filed a traumatic 

injury claim (Form CA-1) alleging that, on November 26, 2011, she was carrying heavy bags and 

pulling them into a postal container when she felt pain in her left leg and hip in the performance 

of duty.

By decision dated March 14, 2012, OWCP denied appellant’s claim. It found that the 

medical evidence submitted was insufficient to establish a firm medical diagnosis in connection 

with the accepted November 26, 2011 employment incident. OWCP noted that appellant’s 

physician diagnosed low back pain, left thigh pain, and left hip pain, and explained that pain was 

considered a symptom, not a diagnosis. 

On April 4, 2012 appellant requested a review of the written record by an OWCP hearing 

representative and submitted additional medical evidence. By decision dated July 11, 2012, an 

OWCP hearing representative affirmed the March 14, 2012 decision.

Appellant, through counsel, subsequently submitted multiple requests for reconsideration. 

However, by decisions dated June 14, 2013, and February 19, July 8, and December 12, 2014, 

OWCP denied modification of its prior decisions.

On March 3, 2015 appellant, through counsel, appealed to the Board. By decision dated

January 15, 2016,

4

the Board found that appellant had not met her burden of proof to establish an 

injury causally related to the accepted November 26, 2011 employment incident. 

On January 3, 2017 appellant, through counsel, requested reconsideration and submitted 

additional medical evidence.

In a December 27, 2016 report, Dr. Carlos Montero, a Board-certified orthopedic surgeon, 

noted that appellant had related a history of injuring her left hip and left lower extremity while 

working at the employing establishment. He explained that appellant’s injury occurred while 

appellant was carrying and lifting heavy bags and placing the heavy bags into a postal container.

Dr. Montero noted that appellant initially saw Dr. Brown, and she had been diagnosed with a strain 

of the left hip with traumatic bursitis and iliotibial band syndrome with aggravation of degenerative 

 

3 Docket No. 15-0830 (issued January 15, 2016), petition for recon. denied, Docket No. 15-0830 (issued 

August 19, 2016).

4

Id.
3

joint disease. He related that appellant had a previous work-related injury on August 10, 2009

when a heavy box struck her right foot causing a contusion of the right foot, a lumbar sprain; and

a right foot crushing injury. Dr. Montero opined that the prior injury involved her right lower 

extremity and lumbar spine and explained that appellant was examined by him for the first time 

on November 10, 2016 with the chief complaint of severe pain in the left trochanteric region 

related to the left thigh and knee. He examined appellant and provided findings, which included 

a history of left hip pain localized in the left thigh. Dr. Montero also indicated that the examination 

disclosed painful range of motion in the left hip which was full, but painful at extremes. He noted 

that appellant walked with a cane due to the pain in the left thigh and there were no contractions. 

Dr. Montero advised that an examination of the hip disclosed no evidence of contractions. He also 

related that appellant had an intact neurovascular examination and found that her x-rays were 

unremarkable. Dr. Montero reviewed a right MRI scan of the left hip with a finding of greater 

trochanteric bursitis, left gluteus medius tendinitis with intrasubstance longitudinal partial tear, 

and left gluteus medius tendinitis. He diagnosed chronic left greater trochanteric bursitis 

unresponsive to treatment with gluteus medius tendinosis. Dr. Montero opined that appellant’s

condition was related to her work-related injury sustained on November 26, 2011. He advised that 

her condition was permanent, that she might require surgery, and that she was totally disabled from 

work.

A November 29, 2016 MRI scan of the left hip read by Dr. Jonathan S. Luchs, a Boardcertified diagnostic radiologist, revealed left greater trochanteric bursitis; left gluteus medius 

tendinitis with intrasubstance longitudal partial tear, without full-thickness tear; and insertional 

left gluteus medius tendinosis without full-thickness tear.

By decision dated March 24, 2017, OWCP denied modification of its January 15, 2016 

decision. It explained that the evidence submitted was insufficient to modify the January 15, 2016 

decision because it did not provide a sufficiently rationalized medical opinion as to how lifting a 

bag into a postal container was the competent cause of the diagnosed hip and back conditions. 

LEGAL PRECEDENT

A claimant seeking benefits under FECA5 has the burden of proof to establish the essential 

elements of his or her claim by the weight of the reliable, probative, and substantial evidence, 

including that an injury was sustained in the performance of duty as alleged, and that any specific 

condition or disability claimed is causally related to the employment injury.6

To determine whether a federal employee has sustained a traumatic injury in the 

performance of duty, it first must be determined whether fact of injury has been established. There 

 

5 See supra note 2.

6 20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a medical 

question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 

48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed condition 

and the implicated employment factors must be based on a complete factual and medical background. Victor J. 

Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a 

reasonable degree of medical certainty, and must be supported by medical rationale, explaining the nature of the 

relationship between the diagnosed condition and appellant’s specific employment factors. Id.
4

are two components involved in establishing fact of injury. First, the employee must submit 

sufficient evidence to establish that he or she actually experienced the employment incident at the 

time, place, and in the manner alleged. An injury does not have to be confirmed by eyewitnesses 

in order to establish the fact that an employee sustained an injury in the performance of duty, but 

the employee’s statements must be consistent with the surrounding facts and circumstances and 

his or her subsequent course of action. 

Second, the employee must submit medical evidence to establish that the employment 

incident caused a personal injury.7 Causal relationship is a medical question that generally requires 

rationalized medical opinion evidence to resolve the issue.8 A physician’s opinion on whether 

there is a causal relationship between the diagnosed condition and the implicated employment 

factor(s) must be based on a complete factual and medical background.9 Additionally, the 

physician’s opinion must be expressed in terms of a reasonable degree of medical certainty, and 

must be supported by medical rationale, explaining the nature of the relationship between the 

diagnosed condition and appellant’s specific employment factor(s).10 

In any case where a preexisting condition involving the same part of the body is present 

and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, 

the physician must provide a rationalized medical opinion that differentiates between the effects 

of the work-related injury or disease and the preexisting condition.11

ANALYSIS

The Board finds that appellant has not met her burden of proof to establish an injury 

causally related to the accepted November 26, 2011 employment incident.

Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence 

appellant submitted prior to the issuance of OWCP’s December 12, 2014 decision because the 

Board considered that evidence in its January 15, 2016 decision and found that it was insufficient 

to establish her claim. Findings made in prior Board decisions are res judicata absent any further 

review by OWCP under section 8128 of FECA.12

Appellant subsequently submitted a December 27, 2016 report from Dr. Montero. In his 

report, Dr. Montero noted that appellant related that her history included injuring her left hip and 

left lower extremities while working at the employing establishment. He diagnosed chronic left 

greater trochanteric bursitis unresponsive to treatment with gluteus medius tendinosis. 

Dr. Montero opined that appellant’s condition was related to her work injury sustained on 

 

7 A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

8 Robert G. Morris, 48 ECAB 238 (1996). 

9 Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10 Id.

11 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12 See B.R., Docket No. 17-0294 (issued May 11, 2018).
5

November 26, 2011. Furthermore, appellant’s condition was permanent and might require 

surgery. However, Dr. Montero did not explain how the incident on November 26, 2011, which 

included carrying heavy bags and pushing them at work caused her diagnosed conditions or 

contributed to or aggravated her preexisting degenerative conditions. The Board has held that a 

report is of limited probative value regarding causal relationship if it does not contain medical 

rationale explaining how a given medical condition is causally related to an employment 

incident.13 The Board therefore finds that the medical opinion of Dr. Montero is insufficient to 

establish appellant’s claim.

Also submitted was a November 29, 2016 MRI scan of the left hip. The Board has held, 

however, that diagnostic studies lack probative value as they do not address whether the 

employment incident caused any of the diagnosed conditions.14

The Board finds that there is no medical evidence of record which contains a reasoned 

explanation of how the November 26, 2011 employment incident caused or aggravated appellant’s 

diagnosed conditions.

15

 Thus, appellant has not met her burden of proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R. 

§§ 10.605 through 10.607. 

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an injury 

causally related to the accepted November 26, 2011 employment incident.

 

13 See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value 

regarding causal relationship if it does not contain medical rationale describing the relation between work factors and 

a diagnosed condition/disability).

14 See J.S., Docket No. 17-1039 (issued October 6, 2017).

15

 See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified 

by medical rationale is of little probative value).
6

ORDER

IT IS HEREBY ORDERED THAT the March 24, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: December 21, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board