United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

L.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Alpharetta, GA, Employer

__________________________________________

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Docket No. 19-1907

Issued: August 14, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

JANICE B. ASKIN, Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 17, 2019 appellant, through counsel, filed a timely appeal from an August 9, 

2019 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 August 9, 2019 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 additional 

evidence for the first time on appeal. Id.
2

ISSUE

The issue is whether appellant has met her burden of proof to establish a consequential

right upper extremity condition causally related to the accepted April 3, 2015 employment injury.

FACTUAL HISTORY

On April 15, 2015 appellant, then a 40-year-old temporary rural carrier, filed a traumatic 

injury claim (Form CA-1) alleging that on April 3, 2015 she strained her left shoulder muscle and 

wrist as a result of lifting a tray of magazines while in the performance of duty. She stopped work 

on April 13, 2015 and resigned from the employing establishment effective August 7, 2015.4 

OWCP accepted the claim for left wrist and shoulder strains, and subsequently expanded

acceptance of the claim to include left shoulder impingement syndrome, cubital tunnel syndrome, 

occipital neuritis, and C4-5 and C5-6 cervical disc displacement. It authorized left shoulder 

arthroscopy with subacromial decompression, which occurred on June 17, 2016, and anterior 

cervical C4-5 and C5-6 decompression surgery, which occurred on June 8, 2017. OWCP paid 

appellant wage-loss compensation on the periodic rolls as of June 25, 2017.

In an October 13, 2018 report, Kerri D. Winston, Ph.D., a licensed acupuncturist, advised 

Dr. John I. Foster, III, a Board-certified orthopedic surgeon, that appellant appeared to have a 

chronic condition despite responding well to her acupuncture treatment. She opined that appellant 

had developed neck discomfort and pain in her right thumb and right arm medial aspect from her 

daily living activities and surgeries.

In an October 17, 2018 report, Dr. Foster related appellant’s history of injury and related 

appellant’s report of right forearm pain and swelling, which he noted that, to his “knowledge is 

not part of the claim.” He referenced Dr. Winston’s October 13, 2018 opinion that appellant had 

developed a right upper extremity condition. Dr. Foster indicated that he had discussed with 

appellant the possibility of filing a new claim for her right upper extremity condition.

In notes of a telephone call (Form CA-110) dated October 17, 2018, OWCP advised 

appellant of the procedure for filing a consequential claim for her right upper extremity condition.

On October 30, 2018 appellant filed a claim for a consequential right arm/hand injury.

In a report dated November 1, 2018, Dr. Foster reviewed diagnostic testing, provided 

examination findings, and diagnosed thoracic outlet syndrome, left elbow ulnar neuropathy 

without demyelinating, resolved left occipital neuritis, left paracentral C4-5 and C5-6 cervical 

herniated nucleus pulposus, status post left shoulder arthroscopy with arthroscopic subacromial 

decompression, left shoulder distal arthroscopic distal clavicle resection, and left ulnar cubital 

tunnel nerve decompression. He referenced an October 13, 2018 letter from appellant’s 

acupuncturist, which noted an aggravation of her right thumb and upper extremity conditions.

 

4 On February 13, 2018 OWCP received a notice of personnel action (Standard Form SF-50), noting June 24, 2015 

as the effective date of appellant’s resignation while the earlier SF-50 forms note the date of August 7, 2015. An 

October 26, 2016 field nurse report noted that appellant had been terminated from the employing establishment,

effective August 7, 2015, due to abandonment of her position. In CA-110 notes of a telephone call dated January 31, 

2017, appellant informed OWCP that she had returned to her private sector job as a bar tender/banquet server on 

October 1, 2016.
3

In a development letter dated November 26, 2018, OWCP noted that it received appellant’s 

request for a consequential right arm condition causally related to the accepted April 3, 2015 

employment injury. It advised her of the type of evidence required to expand the acceptance of 

her claim and afforded her 30 days to provide the necessary evidence.

On December 19, 2018 OWCP received reports covering the period October 12 through

November 30, 2018 from Dr. Winston noting appellant’s complaints of severe bilateral pain with 

the right arm worse than the left and summarizing her acupuncture treatment.

OWCP received a December 21, 2018 electromyograph and nerve conduction velocity 

(EMG/NCV) study performed by Dr. Ralph D’Auria, a Board-certified physiatrist, which showed 

right elbow ulnar neuropathy and no electrophysiological evidence of cervical radiculopathy.

By decision dated February 21, 2019, OWCP denied expansion of the acceptance of 

appellant’s claim, finding that the medical evidence of record was insufficient to demonstrate that 

the right arm condition was causally related to the accepted April 3, 2015 employment injury.5

On February 21, 2019 OWCP received a February 6, 2019 report from Dr. D’Auria who 

noted that appellant was referred to Dr. Foster for evaluation and treatment of her right cubital 

tunnel syndrome shown by a December 21, 2018 EMG/NCV.

Appellant, through counsel, requested a telephonic hearing before an OWCP hearing 

representative on February 27, 2019, which was held on June 17, 2019. The following evidence 

accompanied counsel’s request.

In a report dated February 21, 2019, Dr. Foster provided examination findings, detailed 

diagnostic studies, and examination findings. Appellant related that her right upper extremity 

conditions were worse than her left. Dr. Foster diagnosed right elbow ulnar neuropathy after 

reviewing a December 21, 2018 EMG/NCV study. An examination of the right upper extremity 

revealed a positive elbow Tinel’s sign with radiating symptoms to her first, second, fourth and fifth 

fingers. Diagnoses included right radial neuritis, right elbow ulnar neuropathy, thoracic outlet 

syndrome, left elbow ulnar neuropathy without demyelination, resolved left occipital neuritis, 

status post left shoulder arthroscopy with arthroscopic subacromial decompression, and left 

paracentral C4-5 and C5-6 cervical herniated nucleus pulposus. Dr. Foster noted that the diagnosis 

of right radial neuritis was based on appellant’s subjective complaints and was not confirmed 

diagnostically while the diagnosis of right elbow ulnar neuropathy had been confirmed

diagnostically. In an addendum, he suggested that she had an underlying degenerative abnormality 

in addition to the cubital tunnel condition.

Dr. Foster, in a March 28, 2019 report, reiterated findings, review of diagnostic tests, and 

diagnoses contained in his February 21, 2019 report. Appellant noted that her right upper 

extremity symptoms were worse than her left with occasional pain. Right upper extremity 

examination findings included positive elbow Tinel’s sign radiating into her fingers. In a 

 

5 On January 23, 2019 OWCP reduced appellant’s wage-loss compensation to zero based on a loss of wage-earning 

capacity (LWEC) determination due to her actual earnings as a banquet server working part time. It noted that the 

employment was effective July 19, 2018, that the position fairly and accurately represented her wage-earning capacity, 

and the wages she received met or exceeded the wages she had earned in her date-of-injury position. By decision 

dated May 2, 2019, an OWCP hearing representative vacated the January 23, 2019 LWEC determination and 

remanded the case for a proper calculation of appellant’s pay rate in order to determine whether she had an LWEC.
4

March 29, 2019 report, Dr. Foster summarized examination findings and diagnosed right cubital 

tunnel syndrome based on diagnostic testing. He noted that appellant had undergone several 

unsuccessful surgeries, including cervical discectomy and fusion, as well as left shoulder 

arthroscopy and left ulnar nerve decompression; therefore, he did not recommend further surgical 

intervention.

By decision dated August 9, 2019, OWCP’s hearing representative affirmed the 

February 21, 2019 decision, finding that the medical evidence of record was insufficient to expand

the acceptance of the claim to include a consequential right upper extremity condition.

LEGAL PRECEDENT

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.6

To establish causal relationship, the employee must submit rationalized medical opinion 

evidence.7 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 accepted employment injury.8 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

When an injury arises in the course of employment, every natural consequence that flows 

from that injury likewise arises out of the employment, unless it is the result of an independent 

intervening cause attributable to a claimant’s own intentional misconduct.10 Thus, a subsequent 

injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it 

is the direct and natural consequence of a compensable primary injury.11

ANALYSIS

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

right upper extremity condition causally related to the accepted April 3, 2015 employment injury.

 

6 See W.C., Docket No. 19-1740 (issued June 4, 2020); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. 

Asaramo, 55 ECAB 200 (2004).

7 E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8 D.S., Docket No. 20-0146 (issued June 11, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018); 

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

9

Id.

10 See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson 

& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).

11 A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB 

139 (2001).
5

In support of her claim, appellant submitted a series of reports from Dr. Foster. In an 

October 17, 2018 report, Dr. Foster noted her right upper extremity complaints. In reports dated 

October 17 and November 1, 2018, he referenced an October 13, 2018 report by appellant’s 

acupuncturist who opined that appellant had sustained an aggravation of her right upper extremity.

Dr. Foster, in reports dated February 21 and March 28, 2018, diagnosed right elbow ulnar 

neuropathy and right radial neuritis. He noted that appellant’s right elbow ulnar neuropathy had 

been confirmed by diagnostic testing while the diagnosis of right radial neuritis was based on only 

appellant’s subjective complaints. In reports dated March 28 and 29, 2018, Dr. Foster diagnosed 

right cubital tunnel syndrome. He, however, did not provide an opinion as to the cause of the right 

upper extremity conditions. Dr. Foster did not explain how appellant developed a consequential 

right upper extremity condition from the accepted employment injury. 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.12 Accordingly, Dr. Foster’s reports are 

insufficient to establish that appellant’s claim should be expanded to include consequential right 

elbow ulnar neuropathy or right radial neuritis.

The record also contains a December 21, 2018 EMG/NCV study by Dr. D’Auria 

diagnosing right elbow ulnar neuropathy. The Board has held, however, that diagnostic studies 

standing alone lack probative value on the issue of causal relationship as they do not provide an 

opinion on causal relationship between an employment incident and a diagnosed condition.13 In a 

February 6, 2019 report, Dr. D’Auria noted that he had referred appellant for treatment of her right 

upper extremity conditions, but he again offered no opinion regarding causal relationship.14 This 

report is therefore insufficient to establish appellant’s claim. 

The remaining evidence is of no probative value on the issue of causal relationship. The 

October 13, 2018 report and subsequent treatment notes from Dr. Winston, an acupuncturist, have 

no probative medical value as acupuncturists are not considered physicians as defined under 

FECA.15

On appeal counsel contends that OWCP applied an improper standard of causation to 

appellant’s case and did not give due deference to the opinions of appellant’s treating physicians. 

As noted above, OWCP properly found that the medical evidence of record did not include a

rationalized medical opinion to support expansion of her claim to include a consequential right 

upper extremity condition.

 

12 C.F., Docket No. 19-1748 (issued March 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., 

Docket No. 17-1549 (issued July 6, 2018).

13 M.M., Docket No. 20-0019 (issued May 6, 2020).

14 Supra note 13. 

15 5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical 

psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined 

by State law. See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, 

nurses, and physical therapists are not competent to render a medical opinion under FECA). 5 U.S.C. § 8101(2); 20 

C.F.R. § 10.5(t). M.M., Docket No. 16-1180 (issued October 26, 2016) (acupuncturists and physical therapists are not 

considered physicians as defined under FECA); C.K., Docket No. 14-1235 (issued September 11, 2014); Nemat M. 

Amer, Docket No. 03-0338 (issued April 7, 2005). 
6

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 her burden of proof establish a consequential 

right upper extremity condition causally related to the accepted April 3, 2015 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the August 9, 2018 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: August 14, 2020

Washington, DC

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board