United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.K., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

East Orange, NJ, Employer

__________________________________________

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Docket No. 17-1061

Issued: July 25, 2018

Appearances: Case Submitted on the Record

James D. Muirhead, 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 April 18, 2017 appellant, through counsel, filed a timely appeal from a November 22, 

2016 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 the claim.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 record provided to the Board includes evidence received after OWCP issued its November 22, 2016 decision. 

The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, 

the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

ISSUE

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

disability commencing December 3, 2014, causally related to her accepted December 12, 2011 

employment injury.

FACTUAL HISTORY

This case was previously before the Board.4 The facts and circumstances as set forth in 

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

On December 15, 2011 appellant, then a 47-year-old medical clerk, filed a traumatic injury 

claim (Form CA-1) alleging that she injured her left thumb, wrist, and shoulder while in the 

performance of duty on December 12, 2011 when her chair slipped from underneath her. OWCP 

accepted that she sustained a left thumb sprain.

Appellant continued to work in a full-time, full-duty capacity until December 3, 2014 when 

she stopped work. She filed a notice of recurrence (Form CA-2a) on December 4, 2014 alleging 

an increase in pain of her left thumb, wrist, and shoulder due to unaccepted conditions of carpal 

tunnel syndrome, cubital tunnel syndrome, and left carpometacarapal (CMC) joint arthritis. 

By decision dated March 13, 2015, OWCP denied appellant’s recurrence claim as she had 

not established total disability due to the accepted injury. It also found that she had not established 

that any additional conditions were causally related to the accepted injury.

Appellant appealed to the Board on April 8, 2015. By decision dated August 19, 2015, the 

Board affirmed OWCP’s March 13, 2015 denial of the recurrence claim. The Board also found

that the evidence of record was insufficient to support the expansion of the acceptance of 

appellant’s claim to include additional conditions.

In a May 6, 2015 attending physician’s report (Form CA-20), Dr. Susan Scott, an 

orthopedic hand surgeon, noted that appellant had sustained a fall in the workplace with hand 

trauma on December 12, 2011 and had no history or evidence of concurrent or preexisting disease. 

She opined that appellant’s left thumb basal joint arthritis and left carpal tunnel were caused or 

aggravated by her employment activity, which was described as “job traumatic arthritis and 

neuropathy.” Dr. Scott indicated that appellant was disabled until August 18, 2015 due to pain 

and weakness and would need future surgeries. 

On May 19, 2015 appellant underwent left carpal tunnel release, left cubital tunnel release, 

left thumb trapeziectomy and left first CMC arthroplasty, which Dr. Scott performed. On July 7, 

2015 she underwent a removal of K wire. These surgeries were not approved by OWCP. 

Appellant, through counsel, requested reconsideration on August 26, 2015. 

 

4 Docket No. 15-1037 (issued August 19, 2015). 
3

A May 9, 2012 x-ray report indicated mild degenerative change in the first CMC joint and 

a slight narrowing of the third and fourth metacarpophalangeal joints. No radiopaque foreign body 

was identified. 

In a March 13, 2014 report, Dr. Nigel Shenoy, Board-certified in neuromuscular medicine, 

physical medicine, and rehabilitation, related that appellant received a CMC injection. He 

provided a diagnosis of left thumb pain due to first CMC arthritis.

In a March 31, 2013 report, Dr. Wesley San, a specialist in physical medicine and 

rehabilitation, treated appellant’s left first CMC with an injection. He noted that appellant’s thumb 

pain had worsened as the prior injection wore off. Dr. San opined that appellant’s left thumb pain 

was due to CMC arthritis. In a March 31, 2013 report, Dr. San treated appellant with a left first 

CMC injection. He opined that her left thumb pain was due to CMC arthritis. Dr. San also opined 

that appellant’s right thumb pain was likely due to “OA.” In an August 2, 2013 report, Dr. Rana 

Rand, a specialist in physical medicine and rehabilitation, opined that appellant’s left first CMC 

pain was secondary to first CMC arthritis.

In a partial September 3, 2013 report, Dr. Gwen Lacerda, a specialist in physical medicine 

and rehabilitation, provided an assessment of left first CMC pain secondary to first CMC arthritis. 

The first page of the report was not included.

An October 8, 2014 electromyography (EMG) study revealed mild left carpal tunnel 

syndrome and incidental finding of left Martin Gruber anastomosis with concomitant left thenar 

eminence pain status post steroid injections in the past. 

In the May 19, 2015 preoperative note, Dr. Edward Deisole, a Board-certified internist, 

indicated that appellant had a fall at work injuring her left thumb. Since then, she had left thumb 

pain, left wrist/hand pain, and now, numbness radiating from her elbow. Dr. Deisole diagnosed 

left carpal tunnel, left cubital tunnel, and left thumb CMC arthritis and noted that she would be 

undergoing a left carpal tunnel release. 

As noted, on May 19, 2015, appellant underwent left carpal tunnel release and left thumb 

basal joint arthroplasty. On July 7, 2015 the hardware was removed. 

In a July 17, 2015 letter, Dr. David P. Taormina, an orthopedic surgeon, noted that 

appellant’s history of injury began in 2011 when she fell off a chair and landed on her hand. He 

indicated that she had hyperextended her left thumb which led to her primary injury. Given this 

mechanism of injury, Dr. Taormina noted that appellant was at risk for post-traumatic arthritis. He 

opined that it was likely that this was the cause of her development of thumb/CMC post-traumatic 

arthritis and ultimate surgery. 

In a two-month postoperative status report of July 22, 2015, Dr. Taormina removed 

appellant’s sutures and indicated that she was to begin occupational therapy. The July 22, 2015 

postoperative x-ray report noted postoperative changes as well as scattered degenerative changes 

involving the interphalangeal articulations, with no evidence of cortical destruction. 

In a July 22, 2015 report, Dr. Daniel Kao, an internist, and Dr. Marguerite Diab, a 

physiatrist, evaluated appellant for hand therapy and splinting. Dr. Kao noted that appellant’s pain 
4

and numbness had improved since her left cubital tunnel release, left thumb trapeziectomy, first 

CMC interpositional arthroplasty and carpal tunnel release, and Kirschner wire removal. In a 

July 22, 2015 addendum, Dr. Diab noted the history of the work injury as reported by appellant. 

Appellant indicated that her left upper extremity symptoms began in 2011 after a fall at work and 

that she was diagnosed with left cubital tunnel syndrome, carpal tunnel syndrome, and left thumb 

CMC arthritis. 

By decision dated November 24, 2015, OWCP denied modification of its March 13, 2014 

denial of appellant’s claim for recurrence.5 It found that there was no sufficiently well-rationalized 

medical opinion as to whether the December 12, 2011 work injury caused, contributed, or 

aggravated any hand, thumb, or wrist condition or which established that she had a return of 

disability or increased disability as a result of a consequential condition. 

On January 16, 2016 appellant, through counsel, requested reconsideration. He asserted 

that the medical record was sufficient to support causal relationship as it documented a serious 

injury to appellant’s left hand and shoulder and noted the history of the injury. 

Duplicative treatment notes, physical therapy records, x-ray reports, EMG and MRI scan 

reports between the period February 22, 2012 through December 4, 2014, which the Board had 

previously addressed in its August 19, 2015 decision, were received. 

A June 11, 2011 progress note and a December 13, 2011 note from a nurse practitioner, 

documented appellant’s left wrist, hand, and shoulder symptoms. 

By decision dated March 28, 2016, OWCP denied modification of its November 24, 2015 

decision. It found that the evidence of record was insufficient to support her claimed recurrence.

On July 12, 2016 appellant, through counsel, requested reconsideration. Counsel requested

that OWCP approve the case for traumatic osteoarthritis of the CMC joint of the left thumb, posttraumatic left carpal tunnel syndrome, chronic post-traumatic medial epicondylitis of the left 

elbow, post-traumatic cubital tunnel syndrome for the left elbow, post-traumatic tendinitis of the 

left wrist and the surgeries that have occurred, which included ulnar nerve release at the cubital 

tunnel of the left elbow, left carpal tunnel release at the wrist, left thumb arthroplasty and removal 

of the wire fixation from the thumb arthroplasty.

In a May 2, 2016 report, Dr. David Weiss, an osteopath, noted his review of the medical 

records and set forth examination findings. He diagnosed post-traumatic osteoarthritis of the CMC 

joint of the left thumb, post-traumatic left carpal tunnel syndrome, chronic post-traumatic medial 

epicondylitis to the left elbow, post-traumatic cubital tunnel syndrome to the left elbow, and 

chronic post-traumatic extensor tendinitis to the left wrist. Dr. Weiss indicated that appellant 

sustained significant musculoskeletal trauma to her left elbow and left wrist and hand secondary 

to a post-traumatic hyperextension injury to the left wrist and hand and a direct impact injury to 

the medial aspect of the left elbow. He opined that her orthopedic injuries and necessity for 

multiple surgical procedures were directly attributable to the traumatic work-related 

 

5 As noted, the Board previously affirmed OWCP’s March 13, 2015 decision on August 19, 2015 in Docket No. 

15-1037. 
5

hyperextension injury to the left wrist and hand which caused her post-traumatic osteoarthritis of 

the CMC joint, the left wrist strain and sprain, and the post-traumatic carpal tunnel syndrome. In 

terms of the left elbow, the medial contusion resulted in a chronic medial epicondylitis and a 

documented left ulnar nerve neuropathy for which she eventual underwent surgeries to the left 

wrist and hand with a CMC joint arthroplasty, an open left carpal tunnel syndrome release and a 

left ulnar nerve release of May 19, 2015. 

By decision dated November 22, 2016, OWCP denied modification of its March 28, 2016 

decision. It found that the evidence did not provide sufficient medical rationale to support the 

December 3, 2014 claimed recurrence.

LEGAL PRECEDENT

FECA pays compensation for the disability of an employee resulting from personal injury 

sustained while in the performance of duty.6 Disability means the incapacity, because of an 

employment injury, to earn the wages the employee was receiving at the time of injury. It may be 

partial or total.7

A recurrence of disability is defined as the inability to work after an employee has returned 

to work, caused by a spontaneous change in a medical condition which had resulted from a 

previous injury or illness without an intervening injury or new exposure to the work environment 

that caused the illness.8 The Board has held that whether a particular injury causes an employee 

to be disabled from work is a medical question that must be resolved by competent and probative 

medical evidence.9 The weight of medical opinion is determined on the report of a physician, who 

provides a complete and accurate factual and medical history, explains how the claimed disability 

is related to the employee’s work, and supports that conclusion with sound medical reasoning.10 

Where no such rationale is present, medical evidence is of diminished probative value.11

In order to establish that a claimant’s alleged recurrence of the condition was caused by the 

accepted injury, medical evidence of bridging symptoms between his or her present condition and 

the accepted injury must support the physician’s conclusion of causal relationship.12

 

6 5 U.S.C. § 8102(a). 

7 20 C.F.R. § 10.5(f).

8

Id. at § 10.5(x). See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman, 38 

ECAB 222 (1986).

9 See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

10 Sandra D. Pruitt, 57 ECAB 126 (2005).

11 Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see Ronald C. Hand, 49 ECAB 113 (1957).

12 Mary A. Ceglia, 55 ECAB 626 (2004).
6

For conditions not accepted by OWCP as being employment related, it is the employee’s 

burden to provide rationalized medical evidence sufficient to establish causal relationship, not 

OWCP’s burden to disprove such relationship.13

ANALYSIS

The Board finds that appellant has not established a recurrence of disability commencing 

December 3, 2014 causally related to her accepted December 12, 2011 employment injury. 

OWCP accepted that appellant sustained a left thumb sprain on December 12, 2011. 

Appellant worked in a full-time, full-duty capacity until December 3, 2014, when she stopped 

work. She filed a recurrence claim alleging an increase of pain due to unaccepted conditions of 

carpal tunnel syndrome, cubital tunnel syndrome, and left CMC arthritis. On August 19, 2015 the 

Board affirmed OWCP’s denial of the recurrence claim and the denial of the expansion of the 

claim to include additional conditions. Findings made in prior Board decisions are res judicata

absent any further review by OWCP under section 8128 of FECA.14 The Board will, therefore, 

not review the evidence addressed in the prior appeals.

The evidence of record does not establish that appellant had a spontaneous return of 

disability due to her accepted left thumb strain of December 12, 2011.15 There is also no medical 

evidence to support that the accepted thumb sprain was still active when appellant stopped work 

on December 4, 2014.

A May 9, 2012 x-ray report indicated that appellant had continuing left thumb pain with 

mild degenerative change in first CMC joint. Appellant received CMC injections for her left 

thumb pain as well as bilateral knee viscosupplementation. Several physicians including 

Drs. Lacerda, San, and Shenoy, opined that appellant’s left first CMC pain was due to first CMC 

arthritis. However, none of these physicians addressed causal relationship to her accepted 

employment injury. Medical evidence that does not offer any opinion regarding the cause of an 

employee’s condition is of limited probative value on the issue of causal relationship.16 

Furthermore, pain is a description of a symptom rather than a clear diagnosis of a medical 

condition.17 Thus, these reports are insufficient to establish that the December 12, 2011 work 

incident caused, contributed to, or aggravated any left thumb condition. 

Dr. Scott opined, in her May 6, 2015 Form CA-20 report, that appellant’s left thumb basal 

joint arthritis and left carpal tunnel were caused or aggravated by her employment activity, which 

was described as “job traumatic arthritis and neuropathy.” She also indicated that appellant was

 

13 G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51 

ECAB 638 (2000).

14 See B.R., Docket No. 17-0294 (issued May 11, 2018). 

15 Supra note 8. 

16 Jaja K. Asaramo, supra note 13.

17 C.B., Docket No. 09-2027 (issued May 12, 2010); Robert Broome, 55 ECAB 339 (2004) (the Board has 

consistently held that pain is a symptom rather than a compensable medical diagnosis).
7

disabled until August 18, 2015 due to pain and weakness and would need future surgeries. 

However, Dr. Scott provided no medical rationale to support her opinion on causal relationship. 

The Board has found that medical conclusions unsupported by rationale are of little probative 

value.18 Thus, Dr. Scott’s opinion is insufficient to establish appellant’s claim.

In the May 19, 2015 preoperative note, Dr. Deisole indicated that appellant injured her left 

thumb during a work fall. Since then, she had left thumb, wrist, and hand pain, and now, numbness 

radiating from her elbow. While he noted the work injury and provided diagnoses of left carpal 

tunnel, left cubital tunnel, and left thumb CMC arthritis, Dr. Deisole failed to provide an opinion 

on causal relationship.

19

 He failed to offer an explanation as to why appellant’s left thumb pain 

would persist and how or why the additional diagnoses were causally related to the work injury. 

Thus, Dr. Deisole’s report is insufficient to establish appellant’s claim,

In his July 17, 2015 letter, Dr. Taormina, noted that the hyperextension of appellant’s left 

thumb led to her primary injury and put her at risk for post-traumatic arthritis. He opined that it 

was likely that this was the cause of her development of thumb/CMC post-traumatic arthritis and 

ultimate surgery. Dr. Taormina’s opinion, however, is of diminished probative value as it is 

conclusory and equivocal in character.20 While he noted hyperextension of appellant’s left thumb 

during the accepted employment injury, he did not explain how physiologically hyperextension 

would have in fact caused or contributed to her diagnosed conditions.21 Thus, Dr. Taormina’s 

report is insufficient to establish appellant’s claim.

Similarly, in his May 2, 2016 report, Dr. Weiss noted the history of the work injury. He 

diagnosed post-traumatic osteoarthritis of the CMC joint of the left thumb, post-traumatic left 

carpal tunnel syndrome, chronic post-traumatic medial epicondylitis to the left elbow, posttraumatic cubital tunnel syndrome to the left elbow, and chronic post-traumatic extensor tendinitis 

to the left wrist which he opined were directly attributable to the work injury. Dr. Weiss indicated 

that appellant sustained significant musculoskeletal trauma to her left elbow and left wrist and 

hand secondary to a post-traumatic hyperextension injury to the left wrist and hand and had a direct 

impact injury to the medial aspect of the left elbow. He indicated that appellant’s conditions were 

directly attributable to the hyperextension injury to the left wrist and hand which caused her posttraumatic osteoarthritis of the carpometacarpal joint, the left wrist strain and sprain, and the posttraumatic carpal tunnel syndrome. Dr. Weiss also indicated that the medial contusion of the left 

elbow resulted in a chronic medial epicondylitis and a document left ulnar nerve neuropathy. 

However, he provided no medical rationale to support his opinion on causal relationship. Without 

explaining how physiologically appellant’s work injury caused or contributed to her diagnosed 

post-traumatic osteoarthritis of the CMC joint of the left thumb, post-traumatic left carpal tunnel 

syndrome, chronic post-traumatic medial epicondylitis to the left elbow, post-traumatic cubital 

 

18 M.P., Docket No. 14-1289 (issued September 26, 2014). 

19 Jaja K. Asaramo, supra note 13.

20 D.D., 57 ECAB 734 (2006).

21 See D.P., Docket No. 16-1358 (issued December 19, 2016).
8

tunnel syndrome to the left elbow, and chronic post-traumatic extensor tendinitis to the left wrist,

Dr. Weiss’ opinion is of limited probative value.22

In a July 22, 2015 report, Dr. Diab reported the history of the work injury as reported by 

appellant. She also noted that appellant indicated that she was diagnosed with left cubital tunnel 

syndrome, carpal tunnel syndrome, and left thumb CMC arthritis. This report is of diminished 

probative value as there is no discussion of objective findings, or a physician’s explanation and 

opinion on the cause of the conditions.23

The remainder of the medical evidence is also of limited probative value. The record 

contains reports from occupational therapists and physical therapists which document appellant’s 

left wrist, hand, and shoulder symptoms. However, the Board has held that treatment notes signed 

by such providers are not considered probative medical evidence as those providers are not 

considered physicians under FECA.24 

Appellant’s honest belief that accepted December 12, 2011 employment incident caused 

her recurrence of disability as of December 3, 2014 as well as her additional conditions, however 

sincerely held, does not constitute medical evidence sufficient to establish causal relationship.25

Appellant has not submitted a sufficiently reasoned medical opinion explaining why her 

recurrence of disability beginning December 3, 2014 was caused or aggravated by the 

December 12, 2011 employment injury. 

On appeal counsel asserts that the medical evidence of record established that her left wrist, 

hand, and shoulder symptoms immediately began after her fall at work and became progressively 

worse. However, as discussed above, none of the medical evidence supports her claim for 

recurrence.

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.

 

22 See D.P., Docket No. 16-1358 (issued December 19, 2016).

23 A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an 

employee s condition is of limited probative value on the issue of causal relationship).

24 See 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); see also J.J., Docket No. 15-0727 

(issued July 16, 2015) (reports from appellant’s occupational therapist have no probative medical value. Occupational 

therapists are not considered physicians as defined under FECA). See 5 U.S.C. § 8101(2) (this subsection defines a 

physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic 

practitioners within the scope of their practice as defined by State law).

25 H.H., Docket No. 16-0897 (issued September 21, 2016).
9

CONCLUSION

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

disability as of December 3, 2014, causally related to her December 12, 2011 employment injury.

ORDER

IT IS HEREBY ORDERED THAT the November 22, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: July 25, 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