United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.S., representative of the estate of R.S., 

Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Mission Valley, CA, Employer

__________________________________________

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Docket No. 17-2010

Issued: October 12, 2018

Appearances: Case Submitted on the Record

Max Gest, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 27, 2017 appellant, through counsel, timely filed an appeal from two 

March 31, 2017 merit decisions 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 the

employee was totally disabled from work commencing October 1, 2010 due to accepted 

degenerative cervical disc disease and a cervical spine sprain; and (2) whether appellant has met 

his burden of proof to establish that the employee sustained bilateral carpal tunnel syndrome, 

bilateral ulnar neuritis at Guyon’s canal, and right cubital tunnel syndrome causally related to the 

accepted factors of his federal employment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case as set forth in the 

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

On January 18, 2011 the employee, then a 69-year-old orthopedic surgeon, filed an 

occupational disease claim (Form CA-2) alleging that, on January 22, 2008, he first became aware 

that he sustained a cervical spine sprain and cervical degenerative disc disease caused by repetitive 

writing, typing, and the stresses of performing physical examinations in the performance of his 

federal employment duties.

4

 He stopped work on September 30, 2010. OWCP subsequently 

accepted the claim for neck strain and cervical spine degenerative disc disease. 

On September 12, 2011 the employee filed a claim for compensation (Form CA-7) for 

disability commencing October 1, 2010 in OWCP File No. xxxxxx336. On January 12, 2012 

OWCP denied the employee’s claim for wage-loss compensation commencing October 1, 2010. 

On January 31, 2012 counsel requested a hearing before an OWCP hearing representative. By 

decision dated June 11, 2012, OWCP set aside the January 12, 2012 decision and remanded the 

case for a second opinion evaluation. By decision dated November 22, 2013, it again denied the 

employee’s claim for wage-loss compensation. On December 2, 2013 counsel requested a hearing 

before an OWCP hearing representative. By decision dated December 4, 2014, OWCP’s hearing 

representative affirmed the denial of the employee’s claim for wage-loss compensation 

commencing October 1, 2010. 

On August 7, 2013 the employee filed another occupational disease claim (Form CA-2). 

He alleged that, on September 7, 2012, he first became aware that he sustained bilateral carpal 

tunnel syndrome, bilateral ulnar neuritis at Guyon’s canal, and right cubital tunnel syndrome in 

the performance of his federal employment duties.5 By decision dated November 19, 2013, OWCP 

denied that claim, finding that the employee had not established an injury causally related to the 

alleged factors of his federal employment. On December 2, 2013 counsel requested a hearing 

before an OWCP hearing representative. By decision dated December 4, 2014 in File 

No. xxxxxx457, OWCP’s hearing representative found that the employee had not established 

 

3 Docket Nos. 15-0972 and 15-1005 (issued September 27, 2016).

4 OWCP assigned the claim File No. xxxxxx336.

5 OWCP assigned that claim File No. xxxxxx457. 
3

causal relationship between his alleged upper extremity conditions and the factors of his federal 

employment. The employee died in October 2015.

Appellant appealed to the Board. By decision and order issued September 27, 2016,6the 

Board set aside OWCP’s December 4, 2014 decision under OWCP File No. xxxxxx336 which 

denied the employee’s claim for total disability compensation commencing October 1, 2010, and 

OWCP’s December 4, 2014 decision under OWCP File No. xxxxxx457 which denied the 

employee’s occupational disease claim for bilateral carpal tunnel syndrome, bilateral ulnar neuritis 

at Guyon’s canal, and right cubital tunnel syndrome. OWCP had predicated its denial of the claims 

on the September 7, 2012 report of Dr. David Easley, a Board-certified orthopedic surgeon and 

second opinion physician. The Board found that Dr. Easley’s opinion contained insufficient 

medical reasoning as to whether the employee’s work duties caused or contributed to the claimed 

upper extremity conditions and the claimed period of disability. The Board therefore, remanded 

the case to OWCP to obtain a supplemental report from Dr. Easley to clarify his opinion on causal 

relationship. 

On remand, OWCP administratively combined OWCP File Nos. xxxxxx457 and 

xxxxxx336, effective October 5, 2016. It assigned File No. xxxxxx336 as the master file. 

In a December 8, 2016 letter, OWCP requested that Dr. Easley provide a supplemental 

medical report based on the medical record and an updated statement of accepted facts (SOAF). 

It asked him to explain whether the employee’s work duties as described in the SOAF caused or

contributed to the development of bilateral carpal tunnel syndrome, bilateral ulnar neuritis and 

Guyon’s canal, and right cubital tunnel syndrome. OWCP also requested that Dr. Easley address 

whether the employee was partially or totally disabled from work on and after October 1, 2010 

due to factors of his federal employment. Dr. Easley failed to respond to OWCP’s requests. 

In a March 2, 2017 file memorandum, OWCP noted that, after repeated attempts, the 

medical scheduling contractor had been “unsuccessful in obtaining a report from Dr. Easley. It

has been recommended that [OWCP] initiate a SECOP [second opinion physician] with a new 

physician in order to complete adjudication of this claim.”

On March 21, 2017 OWCP obtained a second opinion from Dr. Michael J. Einbund, a 

Board-certified orthopedic surgeon. Dr. Einbund provided a March 21, 2017 report in which he 

summarized the medical record and reviewed the SOAF. He opined that the accepted employment 

factors caused a temporary aggravation of preexisting degenerative cervical disc disease. The 

aggravation ceased no later than September 30, 2010, when the employee stopped work as his 

contract had ended. Dr. Einbund also opined that the diagnosed bilateral ulnar neuritis, bilateral 

carpal tunnel syndrome, and right cubital tunnel syndrome were not related to the employee’s

federal employment, as the medical evidence of record did not mention any symptoms or findings 

of the claimed conditions until September 2012, approximately two years after the employee had 

stopped work. He asserted that the employee’s degenerative disc disease was secondary to agerelated changes and nonoccupational motor vehicle accidents. Dr. Einbund asserted that the 

employee “was not totally or partially disabled from work commencing on October 1, 2010. There 

[was] no objective evidence of change in his underlying cervical spine condition resulting in any 

 

6 Docket Nos. 15-0972 and 15-1005 (issued September 27, 2016).
4

need for temporary or partial disability. [The employee] was working in an unrestricted manner 

without physical limitation and could have continued to do so.”

By decision dated March 31, 2017, under File No. xxxxxx457, OWCP denied the 

employee’s claim for bilateral upper extremity conditions as causal relationship had not been

established. It accorded Dr. Einbund’s opinion the weight of the medical evidence. 

By separate decision dated March 31, 2017, under File No. xxxxxx336, OWCP denied the 

employee’s claim for total disability compensation commencing October 1, 2010 as the medical 

evidence of record was insufficient to establish causal relationship between the employee’s work 

factors and the claimed period of disability. It accorded Dr. Einbund’s opinion the weight of the 

medical evidence. 

LEGAL PRECEDENT -- ISSUE 1

Section 8102(a) of FECA7sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”

8

 This meaning, for brevity, is expressed as disability for work.9 

For each period of disability claimed, the employee has the burden of proof to prove that 

he was disabled from work as a result of the accepted employment injury.10 Whether a particular 

injury caused an employee to be disabled from employment and the duration of that disability are 

medical issues which must be proven by the preponderance of the reliable probative and substantial 

medical evidence.11

ANALYSIS -- ISSUE 1

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

employee was totally disabled from work commencing October 1, 2010 due to the accepted 

employment-related conditions. 

Under OWCP File No. xxxxxx336, OWCP accepted that the employee sustained a cervical 

spine sprain and cervical degenerative disc disease in the performance of his duties on or before 

January 22, 2008. His five-year appointment ended on September 30, 2010, at which time he 

 

7 5 U.S.C. § 8102(a). 

8 20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 

(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984). 

9 See Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

10 See William A. Archer, 55 ECAB 674 (2004). 

11 See Fereidoon Kharabi, 52 ECAB 291, 292 (2001). 
5

stopped work and did not return. On September 12, 2011 the employee filed a claim for total 

disability compensation beginning October 1, 2010. 

The employee submitted medical evidence in support of his claim. Dr. Joel Heiser, an 

attending Board-certified orthopedic surgeon, permanently limited computer use to 10 minutes an 

hour as of January 22, 2008. He opined that a July 18, 2010 motor vehicle accident aggravated 

the employee’s degenerative disc disease. Dr. Heiser did not indicate that the employee’s accepted 

cervical conditions worsened as of October 1, 2010, or that the employee was totally disabled from

work as of that date. His opinion is therefore of diminished value in establishing the claimed 

period of disability.12 

Dr. Nichols, an attending Board-certified orthopedic surgeon, noted on August 27, 2010 

that the employee related that after experiencing “excruciating neck pain” following his July 18, 

2010 motor vehicle accident, it was “much more difficult for him” to write reports at work. 

Although he did not specifically address the employee’s condition as of September 30, 2010, he 

clearly opined that the employee’s symptoms as of late August 2010 were attributable to the 

July 18, 2010 motor vehicle accident and not to work factors. Dr. Nichols’ opinion therefore 

negates the employee’s assertion of causal relationship.13

Dr. Alleyne, an attending Board-certified orthopedic surgeon, opined on January 27, 2011 

that the employee’s cervical spine pain was aggravated by 2000, 2001, and 2010 motor vehicle 

accidents and by examining patients at the employing establishment during his five-year 

appointment. He asserted that the employee stopped work on October 1, 2010 as his symptoms 

had been increasing. However, Dr. Alleyne did not find an objective change in the accepted 

conditions as of October 1, 2010. When a physician’s statements consist only of a recitation of 

the employee’s complaints that excessive pain caused an inability to work, without making an 

objective finding of disability, the physician has not presented a medical opinion on the issue of 

disability or a basis for payment of compensation.14 Also, although Dr. Alleyne noted that neck 

flexion continued to cause cervical spine pain two years after the employee stopped work, he did 

not attribute the employee’s continuing symptoms to work factors.15 

Dr. Tauber, an attending Board-certified orthopedic surgeon, first examined the employee 

on February 28, 2012. He opined that cervical flexion at work permanently aggravated cervical 

degenerative disc disease, but did not specifically address whether the employee was disabled from

work as of October 1, 2010. Dr. Tauber’s opinion is therefore of little relevance in establishing 

the claimed period of disability.16

 

12 Supra note 10. 

13 Id.

14 See G.H., Docket No. 17-1893 (issued August 23, 2018). 

15 Supra note 10. 

16 Id. 
6

Dr. Easley, a Board-certified orthopedic surgeon and second opinion physician, opined on 

September 7, 2012 that because the employee’s cervical degenerative disc disease was 

asymptomatic prior to January 22, 2008, his work duties aggravated the underlying condition. The 

Board has held, however, that a temporal relationship alone is insufficient to establish causal 

relationship.17 As Dr. Easley did not respond to OWCP’s request for a supplemental report, it 

selected Dr. Einbund, a Board-certified orthopedic surgeon, as the new second opinion specialist 

in the claim.

Dr. Einbund provided a March 21, 2017 report. As the employee had died he performed a 

records review including the SOAF. He opined that the employee was not totally or partially 

disabled from work on and after October 1, 2010 as there was no medical evidence documenting 

a change in his underlying cervical spine condition that would warrant a period of disability. 

Dr. Einbund reasoned that the employee was working full, unrestricted duty immediately prior to 

October 1, 2010 and could have continued to do so. The Board finds that his well-rationalized 

report, which was based upon a proper factual and medical background, represents the weight of 

the medical evidence and establishes that the employee was not disabled from work due to the 

accepted degenerative cervical disc disease and cervical spine sprain after October 1, 2010.18

On appeal, counsel contends that OWCP erred by failing to obtain a clarifying report from

Dr. Easley as directed by the Board’s prior decision and order. The Board notes that OWCP made 

an appropriate effort to obtain a supplemental opinion from Dr. Easley. When he failed to respond, 

OWCP properly selected Dr. Einbund as the new second opinion specialist.

Counsel also asserts that the opinions of Dr. Alleyne, Dr. Easley, and Dr. Tauber were 

entitled to dispositive weight as they examined the employee during life whereas Dr. Einbund 

merely reviewed the medical record.19 However, the opinions of Dr. Alleyne, Dr. Easley, and

Dr. Tauber cannot represent the weight of the medical evidence as they failed to explain why the 

employee was disabled from work for the claimed period due to an occupationally-related 

condition.20 OWCP advised the employee by a September 12, 2013 letter of the additional 

evidence needed to establish his claim, including his physician’s explanation of how and why work 

factors rendered him totally disabled from work as of October 1, 2010, although he was able to 

perform full-duty work through the end of his appointment on September 30, 2010. As the 

employee did not submit such evidence, he failed to meet his burden of proof.

 

17 Louis R. Blair, Jr., 54 ECAB 348 (2003).

18 See R.T., Docket No. 17-2019 (issued August 24, 2018). 

19 Counsel cites to the Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical 

Evidence, Chapter 2.810.6.a(4) (September 2010). He also cites to the Board’s holding in M.A., 59 ECAB 624 (2008), 

where the Board held that the uncontroverted opinion of an attending physician is entitled to great weight. However, 

the present case may be distinguished from M.A., as the opinion of appellant’s attending physicians was clearly 

opposed by Dr. Einbund. 

20 See supra note 11.
7

LEGAL PRECEDENT -- ISSUE 2

An employee seeking benefits under FECA21 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 or specific condition for which compensation is claimed is causally related to the 

employment injury.22 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.23

An occupational disease is defined as a condition produced by the work environment over 

a period longer than a single workday or shift.24 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) 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. 

The medical evidence required to establish causal relationship is generally rationalized 

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which 

includes a physician’s rationalized opinion on the issue of whether there is causal relationship 

between the claimant’s diagnosed condition and the implicated employment factors. The opinion 

of the physician must be based on a complete factual and medical background of the claimant, 

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 claimant.25

ANALYSIS -- ISSUE 2

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

employee sustained bilateral carpal tunnel syndrome, bilateral ulnar neuritis, and right cubital 

tunnel syndrome causally related to the accepted factors of his federal employment. 

In support of his claim, the employee submitted reports from Dr. Alleyne, an attending 

Board-certified orthopedic surgeon. He noted right elbow symptoms on January 27, 2011, which 

 

21 Supra note 2. 

22 Joe D. Cameron, 41 ECAB 153 (1989).

23 See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

24 20 C.F.R. § 10.5(q).

25 Solomon Polen, 51 ECAB 341 (2000).
8

he attributed to cervical spondylosis. Dr. Alleyne concluded that work factors aggravated the 

employee’s degenerative cervical disc disease, but did not diagnose or address the claimed 

peripheral nerve entrapments. His opinion is therefore of diminished probative value in 

establishing causal relationship.

Dr. Tauber, an attending Board-certified orthopedic surgeon, first examined the employee 

on February 28, 2012. He explained that based on the employee’s account, the cervical flexion 

while performing examinations or data entry at work prior to September 30, 2010 permanently 

aggravated his degenerated cervical discs and facets, resulting in upper extremity paresthesias. 

Dr. Tauber changed his opinion on June 18, 2013, attributing bilateral carpal tunnel syndrome, 

bilateral Guyon’s canal entrapment, right cubital tunnel syndrome, right medial epicondylitis, and 

left lateral epicondylitis to a “double crush” combination of cervical and peripheral nerve 

compression due to repetitive motion at work. However, he did not explain his medical reasoning 

for supporting that specific work tasks caused the diagnosed peripheral nerve compressions. 

Dr. Tauber did not set forth the pathophysiologic mechanisms that would result in the diagnosed 

upper extremity conditions. In the absence of such rationale, his report is of insufficient probative 

value to meet the employee’s burden of proof.26 

On September 7, 2012 OWCP obtained a second opinion from Dr. Easley, a Boardcertified orthopedic surgeon, who found a positive Tinel’s sign at the medial elbow bilaterally. 

Dr. Easley diagnosed cervical degenerative disc disease, severe bilateral ulnar neuritis at Guyon’s 

canal. However, he did not explain how and why work factors would cause or contribute to any 

of the diagnosed conditions. 

As Dr. Easley did not respond to OWCP’s requests to clarify his opinion, OWCP obtained 

a new second opinion from Dr. Einbund, a Board-certified orthopedic surgeon. In his March 21, 

2017 report, Dr. Einbund opined that the diagnosed bilateral ulnar neuritis at Guyon’s canal, 

bilateral carpal tunnel syndrome, and right cubital tunnel syndrome were not occupationally related 

as there were no symptoms or findings noted until September 2012, approximately two years after 

the employee stopped work on September 30, 2010. He emphasized that there were no medical 

records contemporaneous with appellant’s occupational exposures which evinced any sign or 

symptoms of the claimed peripheral neuropathies. The Board finds that OWCP properly accorded 

the weight of the medical evidence to Dr. Einbund’s well-rationalized opinion.27 

On appeal, counsel asserts that the Dr. Tauber’s conclusions that repetitive motion at work 

caused the employee’s bilateral carpal tunnel syndrome, bilateral ulnar neuritis at Guyon’s canal, 

and right cubital tunnel syndrome were sufficient to meet his burden of proof as electrodiagnostic 

studies confirmed the presence of those conditions. However, the presence of the conditions is not 

at issue. Rather, their causation is in dispute. The employee’s physicians did not explain the 

objective, pathophysiologic chain of causation between the accepted work factors and the 

 

26 Deborah L. Beatty, 54 ECAB 340 (2003).

27 Supra note 18. 
9

development of the diagnosed peripheral neuropathies.28 The employee provided insufficient 

rationalized medical evidence to establish causal relationship.

Counsel also reiterates that the opinions of Dr. Alleyne, Dr. Easley, and Dr. Tauber were

entitled to dispositive weight as they examined appellant during life whereas Dr. Einbund merely 

reviewed the medical record. However, the opinions of these physicians cannot represent the 

weight of the medical evidence in the claim as they provided insufficient medical rationale 

addressing the critical issue of causal relationship.

29

Appellant may submit new evidence or argument regarding either issue, 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 that the 

employee was totally disabled from work commencing October 1, 2010 due to accepted 

degenerative cervical disc disease and a cervical spine sprain. The Board further finds that 

appellant has not met his burden of proof to establish that the employee sustained bilateral carpal 

tunnel syndrome, bilateral ulnar neuritis at Guyon’s canal, and right cubital tunnel syndrome 

causally related to the accepted factors of his federal employment.

 

28 Supra note 26. 

29 Id.
10

ORDER

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

Compensation Programs dated March 31, 2017 are affirmed.

Issued: October 12, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board