United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

DEPARTMENT OF HOUSING & URBAN 

DEVELOPMENT, HEADQUARTERS, 

Washington, DC, Employer 

__________________________________________ 

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Docket No. 16-1732 

Issued: March 16, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On August 30, 2016 appellant, through counsel, filed a timely appeal of a June 14, 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 to consider 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 that his lower leg and 

feet conditions were causally related to factors of his federal employment. 

FACTUAL HISTORY 

On August 20, 2014 appellant, then a 54-year-old construction analyst, filed an 

occupational disease claim (Form CA-2) alleging that on July 7, 2014 he first became aware of 

his lower leg irritation, leg infection/cellulitis, and severe feet blistering and related these 

conditions to factors of his federal employment on July 18, 2014. He attributed his conditions to 

8 to 10 hours of inspection per day, 3 to 5 times per week. Appellant stopped work on July 28, 

2014 and has not returned. 

Appellant, in support of his claim, appellant submitted prescription notes, discharge 

instructions, and the following medical evidence. 

In a July 28, 2014 Miami Valley Hospital emergency room report and discharge notes, 

Dr. William R. Marriott, an examining Board-certified emergency room physician, diagnosed 

left leg ulcer due to skin breakdown. In the discharge instructions, appellant was informed that 

he had cellulitis, which was a skin infection. 

A July 28, 2014 Ohio Bureau of Workers’ Compensation Physician’s Report was 

completed by Dr. W.H. Sneeder, a family practitioner, who opined that appellant was disabled 

from performing his usual work. He diagnosed left leg and ankle sprains. 

In a July 29, 2014 statement, appellant related that a treating physician had advised that 

his left leg, knee, and ankle problems were employment related. He provided a summary of 

treatment provided and the recommendation that he be seen by a vascular specialist. 

The record contains an August 19, 2014 duty status report (Form CA-17) and 

September 23, 2014 nurse’s notes signed by Therese Leftier, a certified nurse practitioner. The 

Form CA-17 contained a diagnosis of left ankle and knee sprain and provided work restrictions. 

The September 23, 2014 nurse’s notes provided examination findings and diagnosed a left knee 

condition. 

By letter dated October 8, 2014, OWCP informed appellant that the evidence of record 

was insufficient to establish his claim. It advised him regarding the medical and factual evidence 

required for acceptance of his claim. OWCP afforded him 30 days to submit the requested 

information. No further evidence was submitted within the allotted time. 

By decision dated December 9. 2014, OWCP denied appellant’s claim. It found the 

evidence of record insufficient to establish that the diagnosed medical conditions were caused or 

aggravated by the identified employment factors. 

On December 26, 2014 appellant requested an oral hearing before an OWCP hearing 

representative. 
3

By letter dated May 15, 2015, counsel requested the oral hearing be changed to a 

telephonic hearing, which was held on September 16, 2015. 

By letter dated October 19, 2015, the employing establishing disputed appellant’s 

statement that he was required to work up to 10 hours per day. It noted that his time and 

attendance record showed that he averaged 7.5 hours daily, did not work more than 80 hours 

biweekly, but rather averaged 59.1 hours biweekly. The employing establishment attached 

copies of appellant’s time and attendance reports for the period December 13, 2013 through 

June 2014 as evidence of the hours he actually worked during this period. 

By decision dated November 23, 2015, the hearing representative affirmed the denial of 

appellant’s claim. She found the record devoid of any medical evidence establishing how the 

diagnosed medical conditions were caused or aggravated by the identified employment factors. 

Thus, the hearing representative determined that appellant had failed to meet his burden of proof 

to establish his occupational disease claim. 

In a letter dated March 15, 2016, counsel requested reconsideration and submitted 

additional evidence. 

On a prescription noted dated October 20, 2014, Dr. Edward Erb, a treating Boardcertified vascular surgeon, opined that appellant was only capable of performing sedentary/desk 

work. 

In an October 22, 2014 report, Dr. Kevin J. Paley, a treating Board-certified orthopedic 

surgeon, provided work restrictions due to multiple orthopedic conditions. The conditions 

included bilateral knee osteoarthritis, a 2010 left shoulder rotator cuff repair surgery, and right 

elbow distal biceps rupture. 

In a December 4, 2014 report, Dr. Kevin F. Sunshein, a treating podiatrist, diagnosed 

chronic orthopedic and vascular leg and feet problems. He recommended that appellant be 

assigned to a sedentary position and provided work restrictions. 

In a prescription note dated October 19, 2015,3

 Dr. Erb diagnosed severe venous stasis 

wounds which he opined may have been aggravated by the prolonged standing required by his 

employment. 

In a letter dated March 15, 2016, appellant disagreed with the employing establishment’s 

October 19, 2015 letter claiming he provided an inaccurate work history. He contended that the 

time and attendance reports supplied by the employing established failed to accurately reflect the 

time he worked due to conflict with management. Appellant stated that working 10 to 12 hours 

per day during the week was not unusual and at times he worked a 14-hour day. 

By decision dated June 24, 2016, OWCP denied modification. It found that appellant 

failed to submit medical evidence containing an accurate description of his employment 

 3

 The date is unclear on the note. OWCP determined the date of the note to be October 19, 2015 
4

activities, as well as examination findings, medical history, and medical rationale detailing how 

the diagnosed condition had been caused or aggravated by appellant’s employment duties. 

LEGAL PRECEDENT 

An employee seeking benefits under FECA4

 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 filed within the applicable time 

limitation, that an injury was sustained while 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.5 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6 

To establish that an injury was sustained in the performance of duty in a claim for 

occupational disease, an employee must submit: (1) a factual statement identifying employment 

factors alleged to have caused or contributed to the presence or occurrence of the disease or 

condition; (2) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed 

condition is causally related to the employment factors identified by the employee.7

 

Causal relationship is a medical issue and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on 

whether there is a causal relationship between the employee’s diagnosed condition and the 

compensable employment factors.9 The opinion of the physician must be based on a complete 

factual and medical background of the employee, must be one of reasonable medical certainty, 

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

diagnosed condition and the specific employment factors identified by the employee.10 

ANALYSIS 

Appellant filed an occupational disease claim alleging that his lower leg irritation, 

infection/cellulitis and severe feet blistering had been aggravated by his duties as a construction 

 4 Supra note 2. 

5 C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006). 

6 S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989). 

7 D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238 

(2005); Donald W. Wenzel, 56 ECAB 390 (2005). 

8 Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 

642 (2006). 

9 J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006). 

10 I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989). 
5

analyst. OWCP denied his claim finding that the medical evidence failed to establish a 

diagnosed medical condition which had been caused or aggravated by his implicated 

employment factors. 

The Board finds that the medical evidence of record is insufficient to establish that the 

claimed condition of cellulitis, leg and feet conditions were causally related to his duties as a 

construction analyst. Thus, the Board finds that appellant has failed to meet his burden of proof. 

The record is devoid of any medical evidence discussing how appellant’s employment as 

a construction analyst caused or aggravated the diagnosed medical conditions. In support of his 

claim, appellant submitted reports from Drs. Marriot, Paley, Sneeder, Sunshein and Erb. None 

the medical reports from these physicians is sufficient to establish causal relationship for the 

reasons set forth below. 

On July 28, 2014 Dr. Marriott diagnosed a left leg ulcer, and cellulitis which he attributed 

to a skin breakdown. No opinion was proffered as to the cause of the diagnosed condition. 

Similarly, Dr. Sneeder, in a July 28, 2014 work capability report, offered no opinion as to the 

cause of the conditions he diagnosed, left leg and ankle sprains. Drs. Sunshein and Paley also 

offered no opinion as to causal relationship in their reports. Dr. Sunshein diagnosed chronic 

orthopedic and vascular leg and feet problems while Dr. Paley diagnosed bilateral knee 

osteoarthritis, right elbow distal biceps rupture, and 2010 left shoulder rotator cuff repair surgery. 

The Board has held that medical evidence that does not offer any opinion regarding the cause of 

an employee’s condition is of limited probative value on the issue of causal relationship.11 Thus, 

the reports from Drs. Marriott, Paley, Sneeder, and Sunshein are insufficient to support 

appellant’s burden of proof. 

Dr. Erb is the only physician who addressed causal relationship. In an October 19, 2015 

note, he diagnosed chronic vascular and orthopedic leg and feet problems, which he opined 

might have been aggravated by appellant’s prolonged standing. The Board has long held that 

medical opinions which are speculative and equivocal are of diminished probative value.12 

Dr. Erb also did not provide an adequately detailed medical history or describe appellant’s 

employment duties as a construction analyst. Medical reports without any medical rationale 

explaining causal relationship are of diminished probative value and do not meet an employee’s 

burden of proof.13 The opinion of a physician supporting causal relationship must rest on a 

complete factual and medical background supported by affirmative evidence, address the specific 

factual and medical evidence of record and provide medical rationale explaining the relationship 

between the diagnosed condition and the established incident or factor of employment.14 For 

these reasons, Dr. Erb’s opinion is insufficient to establish appellant’s claim. 

 11 See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K. 

Asaramo, 55 ECAB 200 (2004). 

12 Frank Luis Rembisz, 52 ECAB 147 (2000). 

13 C.B., supra note 11; S.E., supra note 11; Richard A. Neidert, 57 ECAB 474 (2006) 

14 Id. 
6

Appellant also submitted a Form CA-17 and nurse’s notes by Ms. Leftier, a certified 

nurse practitioner. Medical opinion, in general, can only be given by a qualified physician.15 

Nurse practitioners are not physicians under FECA.16 As such, Ms. Leftier’s opinion is of no 

probative value. 

The record before the Board lacks any rationalized medical evidence with a diagnosed 

medical condition causally related to the accepted employment incident. OWCP advised 

appellant that he must provide a comprehensive medical report which described his symptoms, 

test results, diagnosis, treatment, and include a physician’s opinion on the cause of his condition. 

Appellant failed to submit medical documentation in response to OWCP’s request. The Board 

has held that the fact that a condition manifests itself during a period of employment does not 

raise an inference of causal relationship.17 An award of compensation may not be based on 

surmise, conjecture or speculation. Neither the fact that appellant’s condition became apparent 

during a period of employment nor the belief that his condition was caused, precipitated, or 

aggravated by his work as a construction analyst is sufficient to establish causal relationship.18 

To establish a firm medical diagnosis and causal relationship, appellant must submit a 

physician’s report that addresses how his employment duties of a construction analyst caused or 

aggravated his lower leg irritation, leg infection, and severe feet blistering.19 As there is no 

probative, rationalized medical evidence explaining how the diagnosed conditions were causally 

related to his employment, he has not met his burden of proof. 

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

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607. 

CONCLUSION 

The Board finds that appellant failed to meet his burden of proof to establish that lower 

leg irritation, infection/cellulitis, and severe feet blistering were causally related to factors of his 

federal employment as a construction analyst. 

 15 E.K., Docket No. 09-1827 (issued April 20, 2010); Allen C. Hundley, 53 ECAB 551 (2002). 

16 Section 8101(2) of FECA provides that “physician” includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. See B.B., Docket No. 09-1858 (issued April 16, 2010); Roy L. Humphrey, 57 ECAB 238 (2005). 

17 L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB 

559 (2006). 

18 See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., id.; Robert Broome, 55 ECAB 339 (2004); Anna C. 

Leanza, 48 ECAB 115 (1996). 

19 Michael S. Mina, supra note 9; Michael E. Smith, 50 ECAB 313 (1999). 
7

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 14, 2016 is affirmed. 

Issued: March 16, 2017 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board