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. 18-1366

Issued: February 27, 2019

Appearances: Case Submitted on the Record

Thomas S. Harkins, 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 July 2, 2018 appellant, through counsel, filed a timely appeal from a January 17, 2018 

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 has met his burden of proof to establish a left elbow 

condition causally related to the accepted April 3, 2014 employment incident.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts and circumstances as presented 

in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.

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 experienced numbness, tingling, a “pins and 

needles” sensation, and pain in his left elbow, radiating down to his hand and up to his shoulder 

when a pharmacy technician struck his left elbow with a medication cassette container while in the 

performance of his work duties. 

In medical records dated May 5 through July 21, 2014, Dr. Barry G. Fisher, an attending 

orthopedic surgeon, noted a history that on April 3, 2014 appellant struck his left elbow which 

caused numbness and tingling. He reviewed diagnostic test results, reported findings on physical 

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

injury in the left elbow area. 

In a medical report dated July 16, 2014, Dr. Alissa J. Burge, a Board-certified radiologist, 

noted that a magnetic resonance imaging scan of appellant’s left elbow revealed mild tendinosis 

of the common extensor origin, edema in the biceps muscle which was nonspecific and may reflect 

muscle strain, and nonspecific subcutaneous edema 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 licensed 

acupuncturist noted appellant’s history of injury, discussed physical examination findings, and 

addressed the treatment of his left elbow. 

By development 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 had reopened the claim for consideration because the medical bills had exceeded 

$1,500.00. OWCP informed appellant of the type of medical evidence necessary to establish his 

claim and afforded him 30 days to submit the necessary evidence. 

In further reports dated September 3 to 22, 2014, appellant’s physical therapist addressed 

the treatment of appellant’s left elbow pain. 

 

3 Docket No. 16-1180 (issued October 26, 2016); petition for recon. denied, Docket No. 16-1180 (issued 

May 25, 2017).
3

In a report with a partial date of October 6

th

, received by OWCP on October 10, 2014,

Dr. Fisher discussed findings on examination of appellant’s left elbow. 

By decision dated October 23, 2014, OWCP denied appellant’s traumatic injury claim. It 

accepted that the April 3, 2014 employment incident occurred as alleged, but denied his claim

because the medical evidence of record did not contain a rationalized medical opinion relating his 

diagnosed left elbow conditions to the accepted work incident. 

OWCP subsequently received an October 14, 2014 report of Dr. Itzhak C. Haimovic, a 

Board-certified neurologist. Dr. Haimovic related a history of the April 3, 2014 employment 

incident, noted his examination of appellant, and diagnosed left ulnar neuropathy, slight weakness 

in the left ulnar nerve, and possible cervical radiculopathy. 

On October 12, 2015 appellant, through counsel, requested reconsideration of OWCP’s 

October 23, 2014 decision. Counsel cited Board precedent and asserted that the evidence of record 

demonstrated that appellant sustained injuries and conditions causally related to the accepted 

April 3, 2014 employment incident. He submitted a report dated August 31, 2015 from Dr. Fisher,

who diagnosed lateral epicondylitis with ulnar radiculopathy and opined that appellant’s injury 

was a direct result of the April 3, 2014 employment incident. 

In a report dated September 2, 2015, Dr. Charlene M. Scheim, a neurologist, diagnosed 

status post left elbow trauma with left ulnar traumatic mononeuropathy and found that appellant’s 

injuries were causally related to the accepted April 3, 2014 employment-related incident. She 

concluded that he was permanently partially disabled as a result of his injuries. 

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

decision, finding that the medical evidence submitted did not contain a rationalized medical 

opinion explaining how the accepted April 3, 2014 employment incident caused or aggravated 

appellant’s diagnosed left elbow conditions. 

On May 11, 2016 appellant, through counsel, appealed to the Board. By decision dated 

October 26, 2016, the Board affirmed OWCP’s January 7, 2016 decision, finding that appellant 

had not met his burden of proof to establish a left elbow condition causally related to the accepted 

April 3, 2014 employment incident.4 

On October 19, 2017 appellant, through counsel, requested reconsideration with OWCP. 

Counsel again cited Board precedent and contended that the evidence of record established that 

appellant sustained injuries causally related to the accepted April 3, 2014 work incident. He 

asserted that an accompanying letter dated February 15, 2017 from Dr. Scheim provided a 

rationalized medical opinion explaining causal relationship between appellant’s diagnosed 

conditions and the accepted employment incident. 

In the February 15, 2017 letter, Dr. Scheim referenced her September 2, 2015 report and 

clarified that the direct trauma of a medication container striking appellant’s left elbow where the 

ulnar nerve passed, caused direct injury to the ulnar nerve and thereby caused left ulnar traumatic 

 

4

Id.
4

mononeuropathy. She again opined that his left elbow and left ulnar nerve injuries were causally 

related to the accepted April 3, 2014 employment incident. Dr. Scheim also reiterated her prior 

opinion that appellant was permanently partially disabled as a result of his injuries. 

By decision dated January 17, 2018, OWCP reviewed the merits of appellant’s claim, but 

denied modification of its January 7, 2016 decision. It found that Dr. Scheim’s February 15, 2017 

report was insufficient to establish the claim because she did not provide medical rationale 

explaining how the accepted April 3, 2014 employment incident caused his left elbow ulnar 

traumatic neuropathy.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 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 of FECA, that an injury was sustained 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. These are the essential elements of each and every compensation claim 

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

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. There 

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

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

time, place, and in the manner alleged. Second, the employee must submit medical evidence to 

establish that the employment incident caused a personal injury.7

Rationalized medical opinion evidence is generally required to establish causal 

relationship. The opinion of the physician must be based on a complete factual and medical 

background, 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.8 This medical opinion must include an accurate 

history of the employee’s employment injury and must explain how the condition is related to the 

injury. The weight of medical evidence is determined by its reliability, its probative value, its 

convincing quality, the care of analysis manifested, and the medical rationale expressed in support 

of the physician’s opinion.9

 

5 Supra note 2.

6 A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

7 A.D., id.; T.H., 59 ECAB 388 (2008).

8 A.D., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

9 S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).
5

ANALYSIS

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

condition causally related to the accepted April 3, 2014 employment incident.

OWCP accepted that the April 3, 2014 employment incident occurred as alleged. The issue 

is whether appellant established that the incident caused a left elbow condition. By decision dated 

October 26, 2016, the Board affirmed OWCP’s denial of his claim. Findings made in prior Board 

decisions are res judicata absent any further review by OWCP under section 8128 of FECA.10 The 

Board will therefore not review the evidence addressed in the prior appeal.

While Dr. Scheim, in a report dated February 15, 2017, clarified her September 2, 2015 

opinion on causal relationship, noting that the direct trauma of a medication container striking 

appellant’s left elbow where the ulnar nerve passed, caused direct injury to the ulnar nerve and 

thereby caused left ulnar traumatic mononeuropathy and permanent partial disability, she still did 

not sufficiently explain how the accepted April 3, 2014 employment incident caused or aggravated 

his left elbow condition and resultant disability.11 Thus, the Board finds that Dr. Scheim’s report 

is insufficient to establish appellant’s claim.

The Board finds that appellant has not submitted rationalized, probative medical evidence 

sufficient to establish a left elbow condition causally related to the April 3, 2014 employment 

incident. Appellant therefore has not met his burden of proof.

On appeal, counsel cites Board precedent and contends that evidence and argument 

contained in appellant’s request for reconsideration establishes 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 of record is insufficient 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.

CONCLUSION

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

condition causally related to the accepted April 3, 2014 employment incident.

 

10 See E.L., 16-0635 (issue November 7, 2016); R.L., Docket No. 15-1010 (issued July 21, 2015). See also A.P.,

Docket No. 14-1228 (issued October 15, 2014).

11 See E.C., Docket No. 17-0902 (issued March 9, 2018) (medical reports without adequate rationale on causal 

relationship are of diminished probative value and do not meet an employee’s burden of proof).
6

ORDER

IT IS HEREBY ORDERED THAT the January 17, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 27, 2019

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