United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.M., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Hines, IL, Employer

__________________________________________

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Docket No. 17-1688

Issued: December 13, 2018

Appearances: Case Submitted on the Record

Alan J. Shapiro, 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 August 1, 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 of this case.3

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 5 U.S.C. § 8101 et seq.

3 The Board notes that following the March 24, 2017 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 evidence for 

the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met his burden of proof to establish a recurrence of 

disability on December 1, 2015 causally related to his accepted September 10, 2015 employment 

injury.

FACTUAL HISTORY

On September 10, 2015 appellant, a 41-year-old vocational nurse, filed a traumatic injury 

claim (Form CA-1) alleging that he injured his left hip and right lower back that same day as a 

result of being hit by a desktop. He stated that the desktop was leaning against a wall and was 

slightly blocking a portion of an office doorway when it fell on him at work. By decision dated 

October 16, 2015, OWCP accepted appellant’s claim for left hip sprain and strain. 

In a September 25, 2015 report, Dr. Abid Nazeer, a Board-certified psychiatrist, diagnosed 

major depressive disorder, single episode, unspecified and pain disorder associated with 

psychological factors and medical condition. 

On October 16, 2015 Dr. Sunil Malkani, a Board-certified internist, diagnosed major 

depressive disorder, single episode, unspecified, pain disorder associated with psychological 

factors and medical condition, bilateral hip joint arthritis, chronic radicular low back pain, 

idiopathic thrombocytopenic purpura, mix hyperlipidemia, impaired fasting glucose, primary 

osteoarthritis of both knees, and gastroesophageal reflux disease with esophagitis. 

In an October 23, 2015 report, Dr. Nazeer opined that appellant’s conditions were directly 

related to his September 10, 2015 work injury due to post-trauma anxiety and worsening of 

depressive symptoms as a sequela to the injury. 

In a hospital report dated October 26, 2015, Dr. David Sanchez, a Board-certified 

emergency medicine specialist, reported that appellant visited the emergency department due to 

left hip pain. He noted that appellant had a history of severe osteoarthritis in the bilateral hips, 

worse in the left hip, and over the weekend his pain had been exacerbated. Appellant also indicated 

that he was waiting for a left hip replacement to be scheduled. Dr. Sanchez diagnosed hip pain

and discharged appellant. 

On November 13, 2015 appellant accepted a part-time, limited-duty assignment as a 

vocational nurse from the employing establishment. The duties included computer work, desktop

and office work assignments; answering the telephone; providing customer service; and filing. 

The physical requirements included no lifting over five pounds and no pushing, kneeling, or 

squatting. 

In a November 19, 2015 report, Dr. Parkson Lin, an emergency medicine physician, noted 

that appellant was treated in the emergency department that day for chronic left hip pain and was 

released to work, effective November 21, 2015. 

On December 4, 2015 Dr. Malkani diagnosed tendinitis of the right wrist, osteoarthritis of 

the right wrist, and chronic pain disorder. He advised that appellant was unable to work due to 

joint pains. 
3

On December 15, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) 

for the period December 1 to 12, 2015 and continuing. 

By development letter dated December 17, 2015, OWCP advised appellant of the 

deficiencies of his claim. It noted that he had not submitted any medical evidence in support of 

his claim and instructed him to provide medical documentation supporting total disability for the 

dates claimed. OWCP afforded appellant 30 days to submit additional evidence and provide his 

response. 

In response, appellant submitted physical therapy reports dated October 2, 6, and 7, 2015. 

In a hospital report dated November 19, 2015, Dr. Lin diagnosed other chronic pain, pain 

in left hip, and unilateral primary osteoarthritis of the left hip. He reported that appellant had 

constant throbbing in the left hip radiating into the groin. Dr. Lin noted that appellant had a history 

of osteoarthritis. 

On January 5, 2016 appellant requested that OWCP expand his list of accepted conditions 

to include lumbar back injury/pain, likely strain, major depressive disorder (single severe without 

psychosis), and pain disorder with both medical and psychological factors. 

An x-ray of the left hip dated September 12, 2015 demonstrated degenerative changes and 

no evidence for acute fracture or dislocation. 

Appellant submitted reports dated October 8, 17, 28, and 31, November 12 and 18, and 

December 4, 2015 from Dr. Malkani who reiterated his diagnoses. 

On December 1, 2015 Julie Morgan, a physician assistant, diagnosed continued severe 

bilateral hip pain from work-related injury and advised that appellant was totally disabled from

work until surgical approval. 

In a December 22, 2015 report, Dr. Nazeer continued to diagnose pain disorder with both 

medical and psychological factors and major depressive disorder, single, severe, without 

psychosis. He opined that appellant’s work injury caused debilitating pain and a change in his 

level of functioning and independence. Dr. Nazeer explained that appellant’s symptoms traversed 

both psychiatric and physical spheres and his total disability was expected to last at least one year. 

On January 6, 2016 Dr. Benjamin Domb, a Board-certified orthopedic surgeon, noted that 

appellant had been under his care since July 28, 2015 after he injured both of his hips while he was 

at work, falling down stairs, in March 2015. He was diagnosed with labral tear of the right hip 

and left hip labral tear with significant amount of osteoarthritis. Dr. Domb opined that appellant 

was suffering with significant pain of both conditions and advised that he was totally disabled from 

work. 

In a February 8, 2016 report, Dr. Domb noted that appellant had a work-related injury on 

September 10, 2015. He indicated that the injury was accepted for strain and sprain of the left hip, 

but appellant had also been diagnosed with a labral tear with left hip significant osteoarthritis. 

Dr. Domb opined that appellant was suffering significant pain from both conditions and was totally 

disabled from work, including light duty. He noted that appellant’s disability was expected to last 

at least one year. 
4

By decision dated March 23, 2016, OWCP denied appellant’s claim for wage-loss 

compensation for the period commencing December 1, 2015. 

On April 11, 2016 counsel requested an oral hearing before a representative of OWCP’s 

Branch of Hearings and Review. 

Appellant submitted a September 15, 2015 report from Dr. Domb who released appellant 

to modified work/duty on September 22, 2015 with restrictions of no lifting greater than 5 to 10 

pounds and no bending, kneeling, or squatting. 

In a February 23, 2016 report, Dr. Glen Wurglitz, a clinical psychologist, diagnosed major 

depressive disorder, single episode, moderate and adjustment disorder, with depressed mood, 

moderate. 

In an April 14, 2015 report, Dr. John A. Lombardi, an orthopedic surgeon, advised that 

appellant was not capable of performing any high-impact activities indefinitely. 

A telephonic hearing was held before an OWCP hearing representative on 

December 15, 2016. Appellant provided testimony and the hearing representative held the case 

record open for 30 days for the submission of additional evidence. 

Subsequently, appellant submitted a September 1, 2016 report from Dr. Martin Siems, a 

Board-certified orthopedic surgeon, who diagnosed probable shoulder impingement with mild-tomoderate acromioclavicular arthropathy and ruled out glenohumeral arthritis. Dr. Siems noted 

that appellant was having low back pain, bilateral hip pain, and bilateral shoulder pain. 

On September 13, 2016 Dr. Siems diagnosed bilateral shoulder impingement syndrome, 

bilateral hip osteoarthritis, articular cartilage disorder of the right hip, and possible labral tear. 

By decision dated March 24, 2017, OWCP’s hearing representative advised appellant that 

it appeared that he was claiming a recurrence of disability and found that it was unclear why he 

stopped work on December 1, 2015. It denied his recurrence claim because the medical evidence

of record was insufficient to establish a recurrence of disability causally related to his 

September 10, 2015 employment injury. OWCP’s hearing representative further found that the 

evidence of record was insufficient to establish a return or increase of disability due to a 

consequential injury or condition stemming from appellant’s accepted left hip conditions. 

LEGAL PRECEDENT

Where appellant claims a recurrence of disability due to an accepted employment-related 

injury, he or she has the burden of proof to establish by the weight of reliable, probative, and 

substantial evidence that the recurrence of disability is causally related to the original injury.4 This 

burden includes the necessity of furnishing evidence from a qualified physician who, on the basis 

of a complete and accurate factual and medical history, concludes that the condition is causally 

 

4 See Robert H. St. Onge, 43 ECAB 1169 (1992).
5

related to the employment injury.5 Moreover, the physician’s conclusion must be supported by 

sound medical reasoning.6

The medical evidence must demonstrate that the claimed recurrence was caused, 

precipitated, accelerated, or aggravated by the accepted injury.7 In this regard, medical evidence 

of bridging symptoms between the recurrence and the accepted injury must support the physician’s 

conclusion of causal relationship.8 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.9

ANALYSIS

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

disability on December 1, 2015 causally related to his accepted September 10, 2015 employment 

injury.

Appellant submitted a series of medical reports from attending physicians which the Board 

finds insufficient to establish the claim. The report from Dr. Lombardi failed to establish a medical 

diagnosis in connection with the injury. The Board finds that Dr. Sanchez’ diagnosis of left hip 

pain is a description of a symptom rather than a clear diagnosis of the medical condition.10 

Although Dr. Wurglitz, Dr. Siems, Dr. Lin, and Dr. Malkani provided firm diagnoses, 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.11 For these reasons, the 

above-noted evidence is insufficient to satisfy appellant’s burden of proof with respect to causal 

relationship.12

Dr. Domb noted that appellant had been under his care since July 28, 2015 after he injured 

both of his hips while he was at work, falling down stairs, in March 2015. Appellant was 

diagnosed with labral tear of the right hip and left hip labral tear with a significant amount of 

 

5 Section 10.104(a)(b) of the Code of Federal Regulations provides that when an employee has received medical 

care as a result of the recurrence, he or she should arrange for the attending physician to submit a detailed medical 

report. The report should include the physician’s opinion with medical reasons regarding the causal relationship 

between the employee’s condition and the original injury, any work limitations or restrictions, and the prognosis. 20 

C.F.R. § 10.104.

6 See supra note 4.

7 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013); see

supra note 4.

8 For the importance of bridging information in establishing a claim for a recurrence of disability, see Shirloyn J. 

Holmes, 39 ECAB 938 (1988); Richard McBride, 37 ECAB 748 (1986).

9 See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

10 The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S., 

Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

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

12 See supra notes 4 to 9.
6

osteoarthritis. Dr. Domb later reported that appellant had a work-related injury on 

September 10, 2015. He indicated that the injury had been accepted for strain and sprain of the 

left hip, but appellant had also been diagnosed with a labral tear with left hip significant 

osteoarthritis. Dr. Domb opined that appellant was suffering significant pain from both conditions 

and was totally disabled for work. The Board finds that Dr. Domb failed to provide sufficient 

medical rationale explaining how appellant’s conditions were causally related to the September 10, 

2015 employment injury, without an intervening injury or new exposure. Dr. Domb did not 

specifically address causal relationship between appellant’s accepted conditions and his claimed 

recurrence of disability or consequential conditions. The need for rationale is particularly 

important as the evidence indicates that appellant had a preexisting bilateral hip condition.13 

Therefore, the Board finds that this evidence is insufficient to expand the acceptance of his claim 

or establish his claim for a recurrence.

In his reports, Dr. Nazeer diagnosed major depressive disorder, single episode, unspecified

and pain disorder associated with psychological factors and medical condition. He opined that 

appellant’s conditions were directly related to his September 10, 2015 work injury due to posttrauma anxiety and worsening of depressive symptoms as a sequela to the injury. In a 

December 22, 2015 report, Dr. Nazeer continued to diagnose pain disorder with both medical and 

psychological factors and major depressive disorder, single, severe, without psychosis. He opined 

that appellant’s work injury caused debilitating pain and a change in his level of functioning and 

independence and explained that appellant’s symptoms traversed both psychiatric and physical 

spheres. Dr. Nazeer’s reports are insufficient to establish that appellant sustained a recurrence of 

his accepted medical conditions. He failed to provide sufficient medical rationale explaining how 

appellant’s psychiatric and physical conditions were causally related to the September 10, 2015 

work injury. The Board finds that the reports from Dr. Nazeer are insufficient to establish a 

consequential injury which was caused or aggravated by the accepted September 10, 2015 

employment injury, without an intervening injury or new exposure. Therefore, the Board finds 

that this medical evidence is insufficient to establish his claim for a recurrence.

The September 12, 2015 x-ray demonstrates degenerative changes of the left hip, but the 

diagnostic study does not address the etiology of appellant’s left hip condition. The Board has 

held that reports of diagnostic tests lack probative value as they do not provide an opinion on 

causal relationship between his employment duties and a diagnosed condition.14

Appellant also submitted evidence from physical therapists and physician assistants. These 

reports do not constitute competent medical evidence because certain healthcare providers such as 

physician assistants, nurse practitioners, physical therapists, and social workers are not considered 

“physician[s]” as defined under FECA.15 Consequently, their medical findings and/or opinions 

 

13 See O.C., Docket No. 17-1175 (issued October 29, 2018); T.M., Docket No. 08-0975 (issued February 6, 2009); 

Michael S. Mina, 57 ECAB 379 (2006).

14 See S.G., Docket No. 17-1054 (issued September 14, 2017).

15 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
7

are of no probative value and will not suffice for purposes of establishing entitlement to 

compensation benefits.16 

As appellant has not submitted rationalized medical evidence sufficient to establish a 

recurrence of disability on December 1, 2015, causally related to his accepted September 10, 2015 

employment injury, 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 has not met his burden of proof to establish a recurrence 

disability on December 1, 2015 causally related to his accepted September 10, 2015 employment 

injury.

ORDER

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

Workers’ Compensation Programs is affirmed.

Issued: December 13, 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

 

16 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician 

assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. 

Supra note 7 at Chapter 2.805.3a(1) (January 2013).