United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

M.M., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

NEW YORK HARBOR HEALTHCARE 

SYSTEM, Brooklyn, NY, Employer 

__________________________________________ 

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Docket No. 16-1180 

Issued: October 26, 2016 

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 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 11, 2016 appellant, through counsel, filed a timely appeal from a January 7, 

2016 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.
2

ISSUE 

The issue is whether appellant met his burden of proof to establish a left elbow injury 

causally related to the April 3, 2014 employment incident. 

On appeal, counsel contends that the medical evidence submitted in support of 

appellant’s request for reconsideration was sufficient to establish that he sustained disabling 

injuries and conditions causally related to the April 3, 2014 employment incident. 

FACTUAL HISTORY 

On April 9, 2014 appellant, then a 31-year-old staff pharmacist, filed a traumatic injury 

claim (Form CA-1) alleging that on April 3, 2014 he had numbness, tingling, pins and needles 

sensation, and pain in his left elbow down his arm to his hand and up to his shoulder when a 

pharmacy technician struck his left elbow with a medication cassette container. 

In a May 5, 2014 narrative medical report, Dr. Barry G. Fisher, an attending orthopedic 

surgeon, provided a history that on April 3, 2014 appellant hit his left elbow, which caused 

numbness and tingling. He provided diagnostic test results and findings on physical 

examination. Dr. Fisher provided an impression of ulnar radiculopathy at the above site. In an 

attending physician’s request for authorization and carrier’s response form also dated May 5, 

2014, he noted the date of injury as April 3, 2014. Dr. Fisher requested authorization for an 

electromyogram (EMG) of the upper extremity to evaluate appellant’s pain, numbness, and 

tingling sensation. In a June 16, 2014 progress note, he reported findings on examination of 

appellant’s left elbow. On June 19, 2014 Dr. Fisher ordered physical therapy to treat appellant’s 

left elbow medial epicondylitis. In reports dated June 30, 2014, he provided a history of the 

April 3, 2014 incident, reported findings on physical examination, and reviewed nerve 

conduction velocity (NCV) and EMG test results. Dr. Fisher concluded that his overall 

examination revealed the presence of left ulnar nerve pathology, most likely due to the direct 

injury in the left elbow area. In a July 21, 2014 progress note, he reviewed a partially legible 

NCV/EMG tests performed on that date which showed ulnar pathology of the left elbow. 

In a July 16, 2014 left elbow magnetic resonance imaging (MRI) scan report, 

Dr. Alissa J. Burge, a Board-certified radiologist, provided an impression of mild tendinosis of 

the common extensor origin. There was edema in the biceps muscle which was nonspecific and 

could reflect muscle strain. Nonspecific subcutaneous edema was also seen over the 

posteromedial aspect of the elbow. No fracture was demonstrated. 

In reports dated August 16, 27, and 29, 2014, appellant’s physical therapists and 

acupuncturist noted appellant’s history, provided findings on examination, and addressed the 

treatment of his left elbow. 

By letter dated September 19, 2014, OWCP indicated that when appellant’s claim was 

received it appeared to be a minor injury that resulted in minimal or no lost time from work and, 

based on these criteria and because the employing establishment had not controverted the claim, 

payment of a limited amount of medical expenses was administratively approved. It stated that it 
3

had reopened the claim for consideration because the medical bills had exceeded $1,500.00. 

OWCP advised appellant of the type of evidence needed to establish his claim. 

In reports dated September 3 to 22, 2014, appellant’s physical therapists addressed the 

treatment of appellant’s left elbow pain. 

In a report with a partial date of October 6th, Dr. Fisher provided findings on examination 

of appellant’s left elbow. 

By decision dated October 23, 2014, OWCP accepted that the April 3, 2014 incident 

occurred as alleged. However, it denied appellant’s traumatic injury claim as the medical 

evidence was insufficient to establish that he had an injury or a medical condition causally 

related to the accepted employment incident. 

In an October 14, 2014 report, Dr. Itzhak C. Haimovic, a Board-certified neurologist, 

noted a history of the April 3, 2014 employment incident and appellant’s medical, family, and 

social background. He reported findings on physical and neurological examination. 

Dr. Haimovic listed an impression of left ulnar neuropathy, slight weakness in the left ulnar 

nerve, and possible cervical radiculopathy. 

On October 12, 2015 appellant, through counsel, requested reconsideration of the 

October 23, 2014 decision and submitted medical evidence. In an August 31, 2015 report, 

Dr. Fisher reiterated appellant’s history of injury, provided diagnostic test results, and findings 

on physical examination. He listed an impression of lateral epicondylitis with ulnar 

radiculopathy. Dr. Fisher concluded that appellant’s injury was a direct result of the direct 

trauma to his elbow, which occurred when it was hit by a medicine cart. 

In a September 2, 2015 report, Dr. Charlene M. Scheim, a neurologist, provided a history 

of the April 3, 2014 work incident and examination findings. She listed an impression of status 

post left elbow trauma with left ulnar traumatic mononeuropathy. Dr. Scheim opined that 

appellant’s left elbow and left ulnar nerve injuries were causally related to the April 3, 2014 

work-related incident. She concluded that he was permanently and partially disabled as a result 

of his injuries. 

By decision dated January 7, 2016, OWCP denied modification of the October 23, 2014 

decision. It found that the medical evidence submitted did not contain a rationalized medical 

opinion to establish a causal relationship between appellant’s diagnosed conditions and the 

accepted April 3, 2014 employment incident. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA has the burden of proof to establish the 

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

evidence3

 including that he or she sustained an injury in the performance of duty and that any 

 3 J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968). 
4

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.4

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.5

 

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

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

the time, place, and in the manner alleged.6

 

The second component is whether the employment incident caused a personal injury and 

generally can be established only by medical evidence.7

 The evidence required to establish 

causal relationship is rationalized medical opinion evidence, based upon complete factual and 

medical background, showing a causal relationship between the claimed condition and the 

identified factors.8

 The belief of the claimant that a condition was caused or aggravated by the 

employment is insufficient to establish a causal relationship.9

ANALYSIS 

The Board finds that appellant has not met his burden of proof to establish a traumatic 

injury caused by the April 3, 2014 employment incident. Appellant failed to submit sufficient 

medical evidence to establish that he had a left elbow condition causally related to the accepted 

employment incident. 

Appellant submitted a series of reports from Dr. Fisher. In his August 31, 2015 report, 

Dr. Fisher opined that appellant sustained lateral epicondylitis with ulnar radiculopathy as a 

direct result of the accepted April 3, 2014 employment incident. His report is unsupported by 

rationale and is thus conclusory. Medical opinions which contain no rationale or explanation are 

of little probative value.10 Dr. Fisher included June 30, 2014 reports and a July 21, 2014 

progress note in which he found that appellant had left ulnar nerve pathology. In the June 30, 

2014 report, he provided a history of the accepted April 3, 2014 employment incident, reported 

findings on physical examination, and reviewed NCV/EMG test results. Dr. Fisher opined that 

appellant’s left ulnar nerve pathology was most likely due to the established work incident. The 

 4 G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

5 S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005). 

6 Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968). 

7 John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q) 

(traumatic injury and occupational disease defined, respectively). 

8 Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979). 

9 Kathryn Haggerty, 45 ECAB 383, 389 (1994). 

10 F.T., Docket No. 09-919 (issued December 7, 2009) (medical opinions not fortified by rationale are of 

diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements 

merely asserting causal relationship generally do not discharge a claimant’s burden of proof). 
5

Board notes that this opinion is speculative in nature.11 Dr. Fisher did not explain how being hit 

in the left elbow by a medication cassette container at work on April 3, 2014 caused or 

aggravated the diagnosed condition. 

Other reports from Dr. Fisher either did not provide a firm medical diagnosis or an 

opinion supporting that the diagnosed conditions were caused or aggravated by the established 

April 3, 2014 work incident. Medical evidence that does not offer any opinion regarding the 

cause of an employee’s condition is of limited probative value.12

Dr. Scheim’s September 2, 2015 report found that appellant was status post left elbow 

trauma with left ulnar traumatic mononeuropathy. She provided a history of the April 3, 2014 

employment incident and findings on physical examination. Dr. Scheim opined that appellant’s 

left elbow and left ulnar nerve injuries were causally related to the April 3, 2014 work-related 

incident. She further opined that he was permanently and partially disabled as a result of his 

injuries. While Dr. Scheim provided an opinion supporting causal relationship, she provided no 

medical rationale explaining how the diagnosed left elbow conditions were caused or aggravated 

by the accepted employment incident.13 

Dr. Haimovic’s October 14, 2014 report listed an impression of left ulnar neuropathy, 

slight weakness in the left ulnar nerve, and possible cervical radiculopathy. While Dr. Haimovic 

noted appellant’s history of injury, he did not specifically relate the diagnosed conditions to the 

April 3, 2014 employment incident.14

Similarly, Dr. Burge’s July 16, 2014 diagnostic test results which addressed appellant’s 

left elbow conditions, did not specifically relate the diagnosed conditions to the established 

employment incident.15 

The remaining reports of record are of no probative value on the issue of causal 

relationship. The reports dated August 16 to September 22, 2014 from appellant’s physical 

therapists and acupuncturist have no probative medical value as neither a physical therapist nor 

an acupuncturist is considered a physician as defined under FECA.16 

 11 Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not 

be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be 

expressed in terms of a reasonable degree of medical certainty). 

12 See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); 

Michael E. Smith, 50 ECAB 313 (1999). 

13 F.T., supra note 10. 

14 See cases cited, supra note 12. 

15 Id.

16 5 U.S.C. § 8101(2); C.K., Docket No. 14-1235 (issued September 11, 2014) (acupuncturists); A.C., Docket No. 

08-1453 (issued November 18, 2008) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); 

Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved 

through the submission of probative medical evidence from a physician). 
6

The Board finds that appellant has failed to submit any rationalized probative medical 

evidence to establish a left elbow injury causally related to the April 3, 2014 employment 

incident. Appellant therefore did not meet his burden of proof. 

On appeal, counsel contends that the medical evidence submitted in support of 

appellant’s request for reconsideration was sufficient to establish that he sustained disabling 

injuries and conditions causally related to the April 3, 2014 employment incident. For the 

reasons stated above, the Board finds that the medical evidence is insufficient to establish 

appellant’s 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 failed to meet his burden of proof to establish a left 

elbow injury causally related to the April 3, 2014 employment incident. 

ORDER 

IT IS HEREBY ORDERED THAT the January 7, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: October 26, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board