United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

N.B., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD 

SAFETY & INSPECTION SERVICE, OFFICE 

OF FIELD OPERATIONS, Philadelphia, PA,

Employer

__________________________________________

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Docket No. 19-0221

Issued: July 15, 2019

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 8, 2018 appellant, through counsel, filed a timely appeal from a

September 21, 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

ISSUES

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

disability from work commencing October 15, 2017 causally related to her accepted August 9, 

2017 employment injuries; and (2) whether appellant has met her burden of proof to establish that 

acceptance of her claim should be expanded to include left lateral epicondylitis causally related to 

the accepted August 9, 2017 employment injury.

FACTUAL HISTORY

On August 9, 2017 appellant, then a 40-year-old consumer safety inspector, filed a 

traumatic injury claim (Form CA-1) alleging on that date that she fell down stairs injuring her left 

elbow and left leg while in the performance of duty. 

On August 9, 2017 appellant sought treatment at the emergency room from Rebecca 

Broadaway, a physician assistant. On August 20, 2017 the employing establishment provided her

with an authorization for examination and/or treatment (Form CA-16). Dr. William Rohan, a 

Board-certified internist, completed the Form CA-16 on August 29, 2017 and diagnosed left arm 

pain. He indicated by checking a box marked “yes” that he believed that appellant’s diagnosed 

condition was due to her employment injury. Dr. Rohan found that she was totally disabled from 

work from August 29 through September 7, 2017.

In a September 7, 2017 note, Dr. Thomas E. Varney, a Board-certified orthopedic surgeon, 

reported that appellant had fallen down the stairs onto her left elbow on August 9, 2017. He also 

noted that her work duties had changed such that she was required to repetitively lift carcasses 

with her left hand to perform inspections. Dr. Varney diagnosed left elbow pain. He opined that 

appellant’s left elbow pain was consistent with lateral epicondylitis. Dr. Varney noted that he was 

not certain whether her left elbow condition was due to her work duties or to her August 9, 2017 

fall. He indicated that appellant could return to work on September 11, 2017 without lifting with 

her left upper extremity. 

On September 8, 2017 Dr. Varney completed a form report and noted that appellant had 

fallen down stairs while working and diagnosed left elbow pain. He also indicated by checking a 

box marked “yes” that he believed that her diagnosed condition was due to her employment injury. 

Dr. Varney also completed a duty status report (Form CA-17) on September 20, 2017 diagnosing 

left elbow pain and provided appellant’s light-duty work restrictions.

In an October 19, 2017 note, Dr. Varney diagnosed lateral epicondylitis of the left elbow. 

He noted that appellant had stopped work as the employing establishment had not provided lightduty work in accordance with his ongoing restrictions. Dr. Varney also completed a Form CA-17 

on October 19, 2017 diagnosing lateral epicondylitis and providing light-duty work restrictions. 
3

Beginning on October 27, 2017 appellant filed claims for compensation for leave without 

pay (Form CA-7) for the period October 15 through December 19, 2017.3 

On November 13, 2017 OWCP accepted appellant’s claim for left elbow contusion and left 

elbow abrasion. 

By development letter dated November 13, 2017, OWCP noted that when appellant’s claim 

was first received it appeared to be a minor injury that resulted in minimal or no lost time from 

work. Based on this criteria, it had administratively approved payment of a limited amount of 

medical expenses. OWCP advised appellant of the deficiencies of her claim. It requested 

additional factual and medical evidence from her and provided a questionnaire for her completion. 

OWCP afforded appellant 30 days to respond.

In a separate letter dated November 13, 2017, OWCP notified appellant that her claim for 

disability compensation was not payable as she had not submitted medical evidence establishing 

that her disability from work was due to her accepted conditions of left elbow contusion and left 

elbow abrasion rather than to the nonwork-related left elbow lateral epicondylitis.

In a December 3, 2017 note, the employing establishment reported that there had been no 

light-duty work available for appellant. 

In a December 19, 2017 note, Dr. Varney diagnosed left lateral epicondylitis and found 

that appellant could return to full-duty work on December 20, 2017. On December 20, 2017 

appellant returned to full-time regular duty at the employing establishment. 

In a letter dated January 8, 2018, appellant responded to OWCP’s November 13, 2017 

factual development questionnaire and denied having any similar injury to her left elbow prior to 

August 9, 2017. 

By decision dated January 25, 2018, OWCP denied appellant’s claim for left epicondylitis, 

finding that the medical evidence did not establish causal relationship between her diagnosed 

condition and her August 9, 2017 employment injury.

By separate decision dated January 25, 2018, OWCP denied appellant’s claim for disability 

for the period October 15 through December 19, 2017 due to her accepted August 9, 2017 

employment injuries.

On January 25, 2018 appellant submitted a November 30, 2017 note from Dr. Varney. At 

that time, Dr. Varney diagnosed lateral epicondylitis left elbow and continued to find that she was 

partially disabled and to provide work restrictions.

On February 21, 2018 appellant, through counsel, requested an oral hearing, in the form of 

a telephonic hearing, with an OWCP hearing representative from both of the January 25, 2018 

OWCP decisions. In a narrative statement dated July 5, 2018, appellant reported on August 8, 

 

3 These forms indicated that appellant also worked part time as a supermarket cashier on October 20, 21, 27, and 

28, 2017 as well as November 3, 4, 10, 11, 17, and 18, 2017. She also worked in this position on December 1 and 

2, 2017. 
4

2017 she fell down the stairs at work landing on her left elbow and both buttocks. She again 

reported that she was able to work until August 8, 2017 and had not received any previous 

diagnosis of left lateral epicondylitis.

On July 31, 2018 appellant testified at a telephonic hearing before an OWCP hearing 

representative. She described the August 9, 2017 employment incident during which she fell down 

three or four steps at the employing establishment landing on her left elbow. Appellant asserted 

that she had no left elbow pain prior to her fall on August 9, 2017. She noted that she worked at 

the employing establishment following the August 9, 2017 fall from August 10 through 21, 2017. 

Appellant stopped work on August 22, 2017 and returned on December 20, 2017. The employing 

establishment then transferred her to Nevada.

On August 1, 2018 OWCP accepted the additional condition of contusion of the left thigh 

as causally related to appellant’s August 9, 2017 employment injury. In a letter dated August 14, 

2018, it noted that it had initially created two separate files for her August 9, 2017 injuries, but had 

then transferred all the documents from OWCP File No. xxxxxx300 into the current claim file, 

OWCP Filed No. xxxxxx432, and deleted the former file.

By decision dated September 21, 2018, OWCP’s hearing representative found that 

appellant had not met her burden of proof to establish that her disability for the period October 15 

through December 19, 2017 was causally related to her accepted employment injuries. She further 

found that appellant had not met her burden of proof to establish left epicondylitis causally related 

to her accepted August 9, 2017 employment injury. 

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA4 has the burden of proof to establish the 

essential elements of his or her claim, including that any disability or specific condition for which 

compensation is claimed is causally related to the employment injury.5

Whether a particular injury causes an employee disability from employment and the 

duration of that disability are medical issues which must resolved by a preponderance of the 

reliable, probative, and substantial medical evidence.6 Findings on examination are generally 

needed to support a physician’s opinion that an employee is disabled from work. 

Under FECA the term “disability” means the incapacity, because of an employment injury, 

to earn the wages that the employee was receiving at the time of injury. Disability is thus not

synonymous with physical impairment, which may or may not result in an incapacity to earn 

wages. An employee who has a physical impairment causally related to a federal employment 

injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time 

 

4 Supra note 2.

5 V.H., Docket No. 18-1282 (issued April 2, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 

ECAB 1143 (1989).

6 V.H, id.; Edward H. Horton, 41 ECAB 301 (1989).
5

of injury, has no disability as that term is used in FECA.7 Furthermore, whether a particular injury 

causes an employee to be disabled from employment and the duration of that disability are medical 

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

evidence.8 The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is 

claimed. To do so, would essentially allow an employee to self-certify their disability and 

entitlement to compensation.9

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish total disability 

from work commencing October 15, 2017 causally related to her accepted August 9, 2017 

employment injuries.

Following her August 9, 2017 employment injuries of left elbow contusion, left elbow 

abrasion, and contusion of the left thigh, appellant stopped work on August 22, 2017 and returned

to full-duty work on December 20, 2017. She filed claims for compensation for the period 

October 15 through December 19, 2017. 

On August 9, 2017 appellant sought treatment at the emergency room from a physician 

assistant. Reports from physician assistants have no probative medical value in establishing her

claim. Such healthcare providers are not considered “physician[s]” as defined under FECA.10 

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing 

entitlement to FECA benefits.11

On August 29, 2017 Dr. Rohan submitted a completed a form report and diagnosed left 

arm pain. On September 8, 2017 Dr. Varney completed a form report and also diagnosed left 

elbow pain. The Board has held that the mere diagnosis of “pain” does not constitute the basis for 

payment of compensation.12 Without a further diagnosis, these medical reports are insufficient to 

meet appellant’s burden of proof to establish disability from work.

On September 7, 2017 Dr. Varney noted appellant’s history of injury on August 9, 2017 

and diagnosed left elbow pain consistent with lateral epicondylitis. He found that she was partially 

disabled. As noted above, left elbow pain is not an acceptable diagnosis to constitute the basis for 

 

7 See 20 C.F.R. § 10.5(f); V.H., id.; N.M., Docket No. 18-0939 (issued December 6, 2018).

8 V.H., id.; Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

10 5 U.S.C. § 8101(2). This subsection defines a physician as surgeons, podiatrist, dentists, clinical psychologists, 

optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.

11 K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure 

Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); see S.Y., Docket No. 18-1814 

(issued April 18, 2019); M.F., Docket No. 17-1973 (issued December 31, 2018).

12 T.G., Docket No. 18-1064 (issued April 26, 2019); Robert Broome, 55 ECAB 339 (2004).
6

payment of compensation.13 Furthermore, the Board notes that lateral epicondylitis had not been 

accepted as causally related to the August 9, 2017 employment injury. Dr. Varney continued to 

diagnose lateral epicondylitis in reports dated October 19, November 30, and December 19, 2017. 

As he failed to offer the necessary rationale for his opinion that appellant was disabled due to her 

accepted left elbow contusion, left elbow abrasion, and left thigh contusion, his opinions are of 

limited probative value.14 These reports do not establish that appellant was disabled from 

October 15 through December 19, 2017 due to her accepted employment injuries.

As appellant did not submit sufficiently rationalized medical opinion evidence to establish 

that she was disabled from work for the period commencing October 15, 2017 due to the August 9, 

2017 accepted conditions of left elbow contusion, left elbow abrasion, and left thigh contusion, 

she has not met her burden of proof to establish that the claimed disability was employment related. 

She was thus not entitled to wage-loss compensation for the period claimed.

LEGAL PRECEDENT -- ISSUE 2

When an employee claims that, a condition not accepted or approved by OWCP was due 

to an employment injury, he or she bears the burden of proof to establish that the condition is 

causally related to the employment injury.15

Causal relationship is a medical issue and the medical evidence required to establish causal 

relationship is rationalized medical evidence.16 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.17 

Neither the mere fact that a disease or condition manifests itself during a period of employment, 

nor the belief that the disease or condition was caused or aggravated by employment factors or 

incidents is sufficient to establish causal relationship.18

ANALYSIS -- ISSUE 2

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

acceptance of her claim should be expanded to include the additional condition of left lateral 

epicondylitis causally related to the accepted August 9, 2017 employment injury.

On September 7, 2017 Dr. Varney diagnosed left lateral epicondylitis. He described the 

accepted August 9, 2017 employment injury of a fall down the stairs onto appellant’s left elbow. 

 

13 Id.

14 V.H., supra note 5.

15 Id.

16 V.H., supra note 5; D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

17 V.H., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (2005).

18 V.H., id.; V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).
7

However, Dr. Varney also noted that her work duties had changed such that she was required to 

repetitively lift carcasses with her left hand to perform inspections. He noted that he was not 

certain whether appellant’s left elbow condition was due to her work duties or to her August 9, 

2017 fall. The Board has held that medical opinions that are speculative or equivocal in character 

are of diminished probative value.19 Dr. Varney offered two separate explanations for appellant’s 

diagnosed left lateral epicondylitis. To be of probative medical value regarding causal 

relationship, a medical report must provide a reasoned opinion on whether the employment 

incident described caused or contributed to the diagnosed medical condition.20 As Dr. Varney did 

not offer a clear opinion as to the cause of appellant’s diagnosed left lateral epicondylitis, his 

reports are insufficiently rationalized to meet her burden to establish causal relationship between 

her diagnosed condition and her accepted employment injury.

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 10.607.21

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish total disability 

from work commencing October 15, 2017 causally related to her accepted August 9, 2017 

employment injuries. The Board further finds that she has not met her burden of proof to establish 

that acceptance of her claim should be expanded to include left lateral epicondylitis causally related 

to the accepted August 9, 2017 employment injury.

 

19 T.B., Docket No. 18-1694 (issued April 23, 2019); T.H., Docket No. 18-1736 (issued March 13, 2019); Kathy A. 

Kelley, 55 ECAB 206 (2004).

20 T.B., id.; J.S., Docket No. 17-1039 (issued October 6, 2017); John W. Montoya, 54 ECAB 306 (2003).

21 The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization 

may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. 

The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the 

examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 17-

1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
8

ORDER

IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 15, 2019

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board