United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.V., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

ANN ARBOR VETERANS ADMINISTRATION 

MEDICAL CENTER, Ann Arbor, MI, Employer

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Docket No. 17-1842

Issued: August 10, 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 29, 2017 appellant, through counsel, filed a timely appeal from a June 2, 2017 

merit decision and an August 3, 2017 nonmerit 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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish that his 

lumbar and left leg conditions were causally related to the accepted factors of his federal 

employment; and (2) whether OWCP properly denied appellant’s request for reconsideration of 

the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On May 20, 2016 appellant, then a 45-year-old motor vehicle operator, filed an

occupational disease claim (Form CA-2) alleging that he developed back and left leg conditions

as a result of prolonged sitting required by his federal employment and due to performance of 

grounds maintenance duties. He noted that he first became aware of his condition on May 1, 2015 

and that it was caused or aggravated by his federal employment November 12, 2015. Appellant

noted that his left knee condition was not accepted by on OWCP under OWCP File No. 

xxxxxx784.3 The employing establishment noted that he was on light/restricted duty. No evidence 

was submitted with the claim.

By letter dated June 1, 2016, OWCP advised appellant of the deficiencies in his claim and 

requested that he submit additional factual and medical evidence. This included a rationalized 

medical report from his physician which contained an opinion as to how the claimed work factors 

caused, contributed to, or aggravated his diagnosed condition(s). OWCP afforded appellant 

30 days to submit the requested information. 

In a May 24, 2016 statement, appellant indicated that prolonged sitting activities caused 

his medical conditions. He stated that he had worked in grounds and transportation since 

September 2010. However, appellant further indicated that his job changed in January 2015 which 

increased his driving duties and caused him to sit for three to four hours. He alleged that the 

increased sitting caused radiculopathy of the lumbar region and neurogenic claudication and right 

and left knee pain and swelling. Appellant stated that the onset of his knee issues occurred during 

the recovery of his radiculopathy, sciatica condition. In May 1, 2015, he noticed sudden leg 

tiredness and heaviness after driving long periods of time with no breaks. 

In a September 7, 2012 report, Dr. Christopher Luring, an osteopath and Board-certified 

physiatrist, noted a three-week history of acute onset numbness of the left leg while performing 

squats for exercise. He diagnosed chronic L5 right radiculopathy and an acute S1 radiculopathy 

on the left. A mild peripheral neuropathy related to a history of diabetes was also provided. 

A September 13, 2012 computerized tomography (CT) scan of appellant’s lumbar spine 

noted scoliosis and multilevel degenerative changes most significantly at L3-4 and L4-5 with 

moderate central canal narrowing. A May 6, 2014 magnetic resonance imaging (MRI) scan of 

appellant’s lumbar spine revealed multilevel degenerative changes most significantly at L3-4 and 

 

3 Under OWCP File No. xxxxxx784, OWCP accepted the condition of lumbar radiculopathy on January 25, 2016. 
3

L4-5. A September 30, 2015 MRI scan of the lumbar spine noted multilevel degenerative changes 

most significantly at L3-4 through L5-S1 levels and mild-to-moderate spinal canal stenosis at 

L3-4. 

In an October 30, 2015 report, Dr. Heidi Haapala, a Board-certified physiatrist, diagnosed 

left S1 radiculopathy with mild ongoing denervation based on an electromyogram (EMG). She 

noted that a previous right L5 radiculopathy was not evident on examination, but indicated that 

there was a peroneal neuropathy at or below the fibular head with mild ongoing denervation vs.

incomplete healing of prior L5 radiculopathy. 

A November 3, 2015 x-ray of appellant’s left knee indicated early tricompartmental 

osteoarthritis, a joint effusion, and a small-to-moderate plantar calcaneal spur. A November 3, 

2015 x-ray of left lower extremity noted sclerosis and mild cortical remodeling in the tibia. 

A November 18, 2015 MRI scan of appellant’s left lower extremity indicated moderate 

joint effusion, patellofemoral osteoarthritis, and a diffuse posterior calf muscle edema, and a T2 

lobular marrow lesion.

In November 27, 2015 and February 21, 2016 reports, Dr. Michael Clay, a Board-certified 

internist, provided updates on appellant’s lumbar radiculopathy claim. He also indicated that 

appellant’s gait had changed as a result of his back pain and leg weakness, which could flare-up 

the left knee arthritis. Because of appellant’s knee pain and swelling, Dr. Clay opined that 

appellant should work in a sedentary, clerical-type position that did not require physical labor, 

lifting, or frequent standing or walking. 

In a December 9, 2015 employing establishment work capacity evaluation form, Dr. Clay 

indicated that appellant developed left knee pain from a September 25, 2015 injury. 

By decision dated July 7, 2016, OWCP denied appellant’s claim, finding that he had not 

established causal relationship between the prolonged sitting activities that he claimed were the 

cause of his medical conditions. It noted that since he had an accepted claim for lumbar 

radiculopathy under OWCP File No. xxxxxx784, any claim for additional medical conditions as a 

consequence of that accepted condition must be addressed under that claim. 

On July 18, 2016 counsel requested a telephonic hearing before an OWCP hearing 

representative, which was held on March 20, 2017. Appellant stated that the current claim was 

filed as his knee injury was never incorporated into his first back injury claim.4 He indicated that,

grounds maintenance work, using the leaf blower, and sitting for long periods of time all 

exacerbated his back condition. Appellant noted that he was currently working at a desk, where 

he answered the telephone and did paperwork. He indicated that he was under the care of Dr. Clay.

A duplicate copy of Dr. Haapala’s October 30, 2015 report along with duplicative copies 

of diagnostic testing previously of record were received. 

 

4 Counsel indicated that he was going to file a formal request to expand the acceptance of the other claim to include 

the left knee condition. 
4

In a July 27, 2016 report, Dr. Egger, a Board-certified physiatrist, noted a history of an 

acute S1 radiculopathy with severe left lower extremity weakness in October 2015 and left knee 

pain. An assessment of left knee pain due to patellofemoral syndrome was provided along with 

an explanation as to how the alteration in appellant’s gait mechanics from the acute S1 

radiculopathy led to the current knee dysfunction. 

In an October 2, 2016 report, Dr. Clay noted that appellant went to the emergency room on 

September 25 and 27, 2015 with back pain and left leg pain. He saw appellant on September 30, 

2015 for worsening pain in the back which went down the left leg, which appellant attributed to 

carrying a 40-pound leaf blower on his back, a new work activity for him. Dr. Clay diagnosed 

acute left S1 radiculopathy on chronic right L5 radiculopathy which he opined was due to the 

described work activities. He noted that appellant had a preexisting back condition that had flared 

before in winter 2013/2014. 

By decision dated June 2, 2017, an OWCP hearing representative affirmed the July 7, 2016 

decision finding that there was no medical evidence of record which attributed appellant’s current 

condition to the accepted employment factor of prolonged sitting. The hearing representative 

noted that appellant has an accepted claim for lumbar radiculopathy under OWCP File No. 

xxxxxx784. Since it appeared that appellant was alleging a consequential knee condition which 

arose as a result of gait changes due to his accepted back injury, he was advised that the knee 

condition should be pursued under his accepted injury claim. 

On July 19, 2017 appellant requested reconsideration. Counsel asserted that Dr. Clay’s 

October 2, 2016 medical report was not previously considered. 

Evidence received in support of the request included duplicative copies of evidence 

previously of record.5 

By decision dated August 3, 2017, OWCP denied appellant’s request for reconsideration 

of the merits of his claim. It determined that, as he had neither raised substantive legal questions 

nor included new and relevant evidence not previously considered, merit review was not 

warranted. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA6 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 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 

 

5 This included May 6, 2014 and September 30, 2015 MRI scan reports of the lumbar spine, Dr. Clay’s October 2, 

2016 report and Dr. Haapala’s October 30, 2015 report. 

6 Supra note 2.
5

or specific condition for which compensation is claimed is causally related to the employment 

injury.7

OWCP’s regulations define an occupational disease as “a condition produced by the work 

environment over a period longer than a single workday or shift.”

8

 To establish that an injury was 

sustained in the performance of duty in an occupational disease claim, a claimant must submit the 

following: (1) medical evidence establishing the presence or existence of the disease or condition 

for which compensation is claimed; (2) a factual statement identifying employment factors alleged 

to have caused or contributed to the presence or occurrence of the disease or condition; and 

(3) medical evidence establishing that the employment factors identified by the claimant were the 

proximate cause of the condition for which compensation is claimed or, stated differently, medical 

evidence establishing that the diagnosed condition is causally related to the employment factors 

identified by the claimant.9

Causal relationship is a medical question that generally requires rationalized medical 

opinion evidence to resolve the issue.10 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.11 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).12

ANALYSIS -- ISSUE 1

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

relationship between the accepted federal employment factors and his lumbar and left leg

conditions.

In a September 7, 2012 report, Dr. Luring diagnosed chronic L5 right radiculopathy and an 

acute S1 radiculopathy on the left. A mild peripheral neuropathy related to a history of diabetes 

was also noted. This report is of diminished probative value as Dr. Luring provides no opinion as 

to whether appellant’s diagnosed conditions were caused or contributed to by the accepted factors 

of appellant’s federal employment. The Board has held that medical evidence that does not offer 

 

7 Kathryn Haggerty, 45 ECAB 383, 388 (1994).

8 20 C.F.R. § 10.5(q).

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

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

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

12 Id.
6

any opinion regarding the cause of an employee’s condition is of limited probative value on the 

issue of causal relationship.13

Similarly, in her October 30, 2015 report, Dr. Haapala diagnosed left S1 radiculopathy with 

mild ongoing denervation based on EMG and a peroneal neuropathy at or below the fibular head 

with mild ongoing denervation vs. incomplete healing of prior L5 radiculopathy. However, she 

did not offer any opinion regarding the cause of appellant’s medical conditions.14 Thus, this report 

is insufficient to establish appellant’s claim.

In a December 9, 2015 work capacity evaluation form, Dr. Clay indicated that appellant 

developed left knee pain from a September 25, 2015 injury. However, as no description of the 

injury was provided, this evidence is of little probative value in the current claim.15

Several additional reports were received from Dr. Clay. In his February 21 and 

November 27, 2016 reports, Dr. Clay specifically indicated that he was providing an update on 

appellant’s lumbar radiculopathy claim. He also indicated that appellant’s gait had changed as a 

result of his back pain and leg weakness, which could flare-up the left knee arthritis. Dr. Clay 

provided work restrictions.16 His reports, however, did not provide a rationalized opinion 

regarding the effects of prolonged sitting or appellant’s ground maintenance duties, as alleged in 

this claim, on his conditions.

17

 Where there is medical evidence of a preexisting condition 

involving the same part of the body as the claimed employment injury, the issue of causal 

relationship invariably requires inquiry into whether there was employment-related aggravation, 

acceleration, or precipitation of the underlying condition.18 Accordingly, the physician must 

provide a rationalized medical opinion which differentiates between the effects of the work-related 

injury or disease and the preexisting condition.19 As Dr. Clay did not provide such an opinion, 

these reports are insufficient to establish appellant’s claim. 

In his October 2, 2016 report, Dr. Clay noted evaluating appellant on September 30, 2015 

for worsening back pain which went down the left leg. He diagnosed acute left S1 radiculopathy 

on chronic right L5 radiculopathy which he opined that was due to appellant’s use of a 40-pound 

leaf blower. Although Dr. Clay provided an affirmative opinion which supported causal 

 

13 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,

58 ECAB 149 (2006).

14 Id.

15 Supra note 9. 

16 To the extent appellant is claiming an additional condition as a consequence of his accepted lumbar radiculopathy, 

this evidence must be filed under OWCP File No. xxxxxx784. 

17 See supra note 13.

18 A.W., Docket No. 17-0285 (issued May 25, 2018). 

19 Id.
7

relationship, he did not provide a rationalized medical opinion on causal relationship with respect 

to the leaf blower activity, which appellant asserted was a work factor in his hearing testimony.20

In a July 27, 2016 report, Dr. Egger provided an assessment of left knee pain due to 

patellofemoral syndrome. He discussed that alteration in appellant’s gait mechanics from the acute 

S1 radiculopathy led to the current knee dysfunction.21 Dr. Egger, however, did not discuss or 

mention the effects of prolonged sitting or his grounds maintenance duties on appellant’s 

conditions. Therefore, his report is of limited probative value.22

Appellant also submitted a series of diagnostic examination testing reports, which included 

a CT scan and a lumbar spine and lower extremity MRI scan and x-rays of the left lower extremity, 

from 2012 through 2015. While the interpreting physicians provided medical diagnoses from the 

diagnostic testing reports, they did not provide an opinion on the cause of his diagnosed conditions. 

As such, they are of limited probative value.23 

Appellant’s belief that employment activities caused or aggravated his condition is 

insufficient, by itself, to establish causal relationship.24 As noted, the issue of causal relationship 

is a medical one and must be resolved by probative medical opinion from a physician.25 The Board 

finds, therefore, that appellant has not met his burden of proof to establish his 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. 

LEGAL PRECEDENT -- ISSUE 2

To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s 

regulations provide that the evidence or argument submitted by a claimant must: (1) show that 

OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal 

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new 

evidence not previously considered by OWCP.26 Section 10.608(b) of OWCP’s regulations 

provide that, when an application for reconsideration does not meet at least one of the three 

 

20 C.M., Docket No. 14-0088 (issued April 18, 2014) (finding 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).

21 See supra note 13.

22 See supra note 13. 

23 See L.A., Docket No. 16-1352 (issued August 28, 2017) (diagnostic testing reports, including MRI scan reports, 

are of limited probative value as they do not specifically address causal relationship).

24 20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

25 See Y.G., Docket No. 17-1209 (issued August 25, 2017).

26 20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).
8

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for 

reconsideration without reopening the case for a review on the merits.27

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of his claim pursuant to 5 U.S.C. § 8128(a). 

Appellant did not to show that OWCP erroneously applied or interpreted a specific point 

of law, nor did he advance a relevant legal argument not previously considered by OWCP.28 While 

counsel asserted that the October 2, 2016 medical report of Dr. Clay was not previously 

considered, the record reflects that the report was previously of record and considered by OWCP’s

hearing representative in the June 2, 2017 decision. Furthermore, appellant has not submitted 

relevant and pertinent new evidence not previously considered by OWCP. The underlying issue 

in this case is whether he submitted sufficient medical evidence which addressed whether 

prolonged sitting caused his current conditions. In support of his request, appellant submitted 

copies of May 6, 2014 and September 30, 2015 MRI scan reports of the lumbar spine and

Dr. Haapala’s October 30, 2015 and Dr. Clay’s October 2, 2016 reports, which were previously of 

record and considered. Evidence which is duplicative, cumulative, or repetitive in nature is 

insufficient to warrant reopening a claim for merit review.29 A claimant may obtain a merit review 

of an OWCP decision by submitting relevant and pertinent new evidence. In this case, appellant 

failed to submit relevant and pertinent new medical evidence addressing the underlying issue. 

The Board accordingly finds that appellant has not met the requirements of 20 C.F.R. 

§ 10.606(b)(3) and OWCP properly denied merit review. 

On appeal counsel argues that OWCP’s decisions are contrary to fact and law. However, 

the Board has explained why the evidence in this case is insufficient to establish appellant’s claim.

CONCLUSION

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

or left leg conditions were causally related to the accepted factors of his federal employment. The 

Board further finds that OWCP properly denied his request for reconsideration of the merits of his 

claim pursuant to 5 U.S.C. § 8128(a).

 

27 Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

28 See J.F., Docket No. 16-1233 (issued November 23, 2016).

29 Denis M. Dupor, 51 ECAB 482 (2000).
9

ORDER

IT IS HEREBY ORDERED THAT the August 3 and June 2, 2017 decisions of the Office 

of Workers’ Compensation Programs are affirmed.

Issued: August 10, 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