United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.G., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

BROCKTON VETERANS ADMINISTRATION

MEDICAL CENTER, Brockton, MA, Employer

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Docket No. 20-0139

Issued: June 26, 2020

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 22, 2019 appellant, through counsel, filed a timely appeal from an August 19, 

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.

 

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 left lateral 

epicondylitis causally related to the accepted factors of his federal employment.

FACTUAL HISTORY

On July 18, 2018 appellant, then a 59-year-old materials handler, filed an occupational 

disease claim (Form CA-2) alleging that he sustained left lateral epicondylitis (tennis elbow) due 

to factors of his federal employment, including repeatedly lifting, pushing, pulling, and securing 

heavy loads “in a company truck.” He noted that he first became aware of his condition and 

realized it was caused or aggravated by his federal employment on June 28, 2017. Appellant

stopped work on June 28, 2017 and returned to work on July 3, 2017.

In a June 28, 2017 medical report, Dr. Sucheta J. Doshi, Board-certified in preventative 

medicine, noted that appellant’s injury was related to a previous October 19, 2016 injury.3 She 

recommended that he return to work with light-duty restrictions. 

In a July 20, 2017 medical report, Dr. Steven Makovitch, Board-certified in physical 

medicine, evaluated appellant for pain in his left forearm that he began to experience after lifting 

and unloading a truck as a part of his work duties. Appellant described feeling pain, swelling, and 

weakening in his left elbow and informed Dr. Makovitch that he never had left-sided tennis elbow. 

He also noted that he had another work injury in March 2017 and experienced noticeable swelling 

to the left lateral elbow. Dr. Makovitch noted appellant’s medical history of lateral epicondylitis 

and opined that his left lateral elbow pain was likely secondary to a flare up of chronic lateral 

epicondylitis. He recommended that appellant undergo a magnetic resonance imaging (MRI) scan 

for further evaluation. 

On August 2, 2017 Caleb McVey, a licensed nurse practitioner, noted a new pain in 

appellant’s right elbow, which appellant related to a 20134employment injury. He recommended 

that appellant be excused from work for 16 days.

In an August 7, 2017 diagnostic report, Dr. Anupma Juti, a Board-certified diagnostic 

radiologist, performed a left elbow MRI scan. She found mild tendon thickening and focal 

increased signal at the origin of the extensor tendon, suggesting lateral epicondylitis.

On August 17, 2017 Dr. Makovitch recorded appellant’s complaint of ongoing left elbow 

pain, as well as pain in the right elbow. He referenced the August 7, 2017 MRI scan of appellant’s 

left elbow, which revealed lateral epicondylitis and suggested that he remain out of work.

In an August 24, 2017 medical report, Dr. Doshi reported that appellant continued to 

experience intense pain in his left elbow. Appellant informed her that the pain led him to 

 

3 Appellant previously filed a traumatic injury claim for an October 19, 2016 left arm injury under OWCP File No. 

xxxxxx874, which OWCP denied.

4 Appellant previously filed a traumatic injury claim for a January 29, 2013 right arm injury under OWCP File No. 

xxxxxx614. The Board further notes that appellant’s claim was accepted for right lateral epicondylitis.
3

compensate with his right arm and hand, which had exacerbated his previously-treated tendinitis 

of the right elbow from 2013. Dr. Doshi assessed left lateral elbow pain related to a previous left 

common extensor muscle strain,5as well as right lateral epicondylitis.

In an August 25, 2017 diagnostic report, Dr. Amy West, Board-certified in physical 

medicine, conducted an electromyography (EMG) study of appellant’s left elbow. She reported 

that his study returned normal and displayed no electrophysiologic evidence for left ulnar 

neuropathy.

Dr. Makovitch noted in an August 31, 2017 report that he saw appellant for a follow-up 

appointment after his EMG study. Upon review of appellant’s EMG and MRI studies, he found 

evidence of epicondylitis in appellant’s left elbow and noted that his EMG study was negative for 

peripheral focal neuropathy. Dr. Makovitch diagnosed left lateral epicondylitis and set up a needle 

tenotomy of the common extensor tendon of the left elbow to further treat his condition. In a 

medical report of even date, Dr. Doshi indicated that appellant was seen by Dr. Makovitch to 

schedule a needle injection and suggested that he remain out of work until September 11, 2017. 

In a September 11, 2017 medical report, appellant informed Dr. Doshi that his pain and 

swelling had continued bilaterally in both elbows, but worse in the left elbow. Dr. Doshi repeated 

her diagnosis of left lateral elbow pain related to a previous left common extensor muscle strain 

and right lateral epicondylitis. 

On September 19, 2017 Dr. Makovitch performed an ultrasound-guided left lateral elbow 

common extensor needle tenotomy to treat appellant’s lateral epicondylitis.

Dr. Doshi indicated in a September 25, 2017 medical report that she saw appellant after his 

September 19, 2017 needle tenotomy. She diagnosed left lateral epicondylitis, a strain of the left 

extensor tendon, and left elbow pain and also updated his work restrictions. 

In an October 20, 2017 note, Dr. Andrea Ohldin, Board-certified in internal medicine, 

checked a box indicating that appellant was cleared for modified duty. 

Dr. Makovitch explained in a February 1, 2018 letter that appellant’s left lateral 

epicondylitis began on June 28, 2017 after an injury at work and that he had thereafter been 

following strict work restrictions and completing occupational therapy to treat his condition. He 

opined that it was unlikely for appellant’s condition to improve one year after the initial injury.

In a June 21, 2018 medical report, Dr. Makovitch found that appellant’s left elbow pain 

related to his lateral epicondylitis had not improved despite conservative treatment. He 

recommended sending appellant for surgical evaluation in order to treat his condition.

 

5 Appellant previously filed a traumatic injury claim for a June 28, 2017 left arm injury under OWCP File No. 

xxxxxx495. The Board further notes that appellant’s claim was accepted for a left common extensor tendon strain.
4

A June 28, 2018 medical report with an illegible signature detailed the history of 

appellant’s treatment from June 28, 2017 to January 11, 2018 as it related to his left lateral 

epicondylitis. 

Appellant submitted an August 8, 2018 employing establishment work capacity status 

report with an illegible signature, indicating that he was capable of performing his usual job and 

that he had reached maximum medical improvement.

Appellant also provided multiple employing establishment duty status reports (Form CA17), dated from June 28, 2017 to April 13, 2018, which documented his work restrictions. 

In a development letter dated September 4, 2018, OWCP advised appellant of the 

deficiencies of his claim and instructed him as to the type of factual and medical evidence 

necessary to establish his claim. It asked him to complete a questionnaire to provide further details 

regarding the circumstances of his claimed injury. OWCP also noted, “It appears this is a duplicate 

claim [i.e., OWCP File No. xxxxxx770] as you already have a left arm injury under case number 

xxxxxx495 for the same date of injury. You also have a prior claim for the same injury under case 

number xxxxxx874 with an injury date of October 19, 2016.”

6

 It also requested a narrative 

medical report from appellant’s treating physician, which contained a detailed description of 

findings and diagnoses, explaining how appellant’s work activities caused, contributed to, or 

aggravated his medical conditions. OWCP afforded appellant 30 days to submit the necessary 

evidence. 

In response, appellant submitted a January 4, 2017 medical report form in which Dr. Doshi 

checked a box indicating that he presented for reevaluation of an October 19, 2016 occupational 

injury that caused numbness and tingling in his left arm. In a January 4, 2017 narrative report,

Dr. Doshi recommended that appellant could return to full duty at work. 

In an August 28, 2018 medical report, Dr. Makovitch indicated that appellant had no major 

improvements to his lateral epicondylitis despite completing occupational therapy, a tenotomy,

and use of a counterforce brace bilaterally. He diagnosed bilateral lateral epicondylitis and 

recommended that appellant return to work with restrictions.

On October 1, 2018 the employing establishment controverted appellant’s occupational 

disease claim arguing that he failed to specify the percentage of time he spent performing his work 

duties. It also argued that he had not provided medical evidence containing a diagnosis in 

connection with his claimed injury.

In an October 4, 2018 email, Z.D., a human resource specialist, indicated that appellant 

informed her that he had a prior shoulder surgery, but he had not specified which shoulder had 

required treatment.

 

6

In addition to his other claims, appellant filed an August 15, 2018 occupational disease claim for a right elbow 

injury under OWCP File No. xxxxxx884, which was denied as not a consequential injury of the accepted June 28, 

2017 left elbow injury under OWCP File No. xxxxxx495.
5

Appellant also submitted a position description detailing his responsibilities as a materials 

handler.

By decision dated October 18, 2018, OWCP denied appellant’s occupational disease claim,

finding that the evidence of record was insufficient to establish that the alleged employment factors 

occurred as he described. It explained that it was unclear whether he was claiming an aggravation 

due to the June 28, 2017 traumatic condition previously accepted under File No. xxxxxx495 or 

whether he was claiming an occupational disease due to the repetitive activities of his job. As 

such, OWCP concluded that the requirements had not been met to establish an injury as defined 

by FECA.

OWCP continued to receive evidence. Appellant submitted the signature page from 

OWCP’s questionnaire dated October 23, 2018, without responses to the questions posed. 

In a letter of even date, Dr. Makovitch recounted his treatment for appellant’s left elbow 

pain after an injury at work while performing a lifting motion. He opined that appellant’s

examination and medical history was most consistent with an elbow extensor muscular strain and 

that it was possible that appellant was already set up with prior common extensor tendinopathy as 

he had a history of lateral epicondylitis on his right side. Dr. Makovitch then reviewed the 

diagnostic studies and treatment appellant underwent in relation to his left elbow lateral 

epicondylitis. He concluded that “it was likely that [appellant] had preexisting lateral 

epicondylitis, which is known to be brought on with repetitive work-related tasks such as those in 

[appellant’s] job. [Appellant] then had an acute injury at work and has never fully recovered.”

On April 19, 2019 appellant, through counsel, requested reconsideration of OWCP’s 

October 18, 2018 decision.7

In a letter dated July 8, 2019, the employing establishment again controverted appellant’s 

claim, arguing that the medical evidence of record was insufficient to establish causal relationship 

between his injury and his employment duties.

By decision dated August 19, 2019, OWCP affirmed in part and modified in part its 

October 18, 2018 decision. It explained that the evidence of record was sufficient to meet and 

discharge appellant’s burden of proof in establishing the factual component of fact of injury. 

OWCP also determined, however, that the medical evidence of record did not support that his

lateral epicondylitis was causally related to the accepted factors of his federal employment.

LEGAL PRECEDENT

An employee seeking benefits under FECA 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 timely filed within the applicable 

 

7 The Board notes that appellant, through counsel, also submitted a timely request for a telephonic hearing on 

November 7, 2018. However, in a letter dated and received on April 19, 2019, counsel withdrew the telephonic 

hearing request.
6

time limitation period of FECA,8that an injury was sustained in the performance of duty as alleged, 

and that any disability or medical condition for which compensation is claimed is causally related 

to the employment injury.9 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.10

To establish that an injury was sustained in the performance of duty in an occupational 

disease claim, an employee must submit the following: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee.11

Causal relationship is a medical question that requires rationalized medical opinion 

evidence to resolve the issue.12 A physician’s opinion on whether there is causal relationship 

between the diagnosed condition and the implicated employment factors must be based on a 

complete factual and medical background.13 Additionally, the physician’s opinion must be 

expressed in terms of a reasonable degree of medical certainty and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s 

specific employment factors.14

ANALYSIS

The Board finds that the case is not in posture for decision.

OWCP’s procedures provide that cases should be administratively combined when correct 

adjudication of the issues depends on frequent cross-referencing between files.15 For example, if 

a new injury case is reported for an employee who previously filed an injury claim for a similar 

 

8 S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 

153 (1989).

9

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 

ECAB 312 (1988).

10 K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014); 

Delores C. Ellyett, 41 ECAB 992 (1990).

11 R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. 

Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

12 T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

13 M.V., Docket No. 18-0884 (issued December 28, 2018).

14 Id.; Victor J. Woodhams, supra note 11.

15 See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c) 

(February 2000).
7

condition or the same part of the body, doubling is required.16 Herein, appellant has an accepted 

claim for a left extensor tendon strain, assigned OWCP File No. xxxxxx495, and an accepted claim 

for right lateral epicondylitis, assigned OWCP File No. xxxxxx614. He subsequently filed a 

traumatic injury claim for a left arm injury on October 19, 2016, assigned OWCP File No. 

xxxxxx874, an occupational disease claim for a right arm injury on August 15, 2018, assigned 

OWCP File No. xxxxxx884 and an occupational disease claim for left lateral epicondylitis on 

July 18, 2018, assigned OWCP File No. xxxxxx770, which is the claim present before the Board. 

Further, medical evidence from Drs. Doshi and Makovitch opined that appellant’s current injury 

was related to his October 19, 2016 and June 28, 2017 left arm injuries. However, the evidence 

pertaining to OWCP File Nos. xxxxxx495, xxxxxx614, xxxxxx874 and xxxxxx814, is not part of 

the case record presently before the Board.

For a full and fair adjudication, the case must be returned to OWCP to administratively 

combine the current case record with OWCP File Nos. xxxxxx495, xxxxxx614, xxxxxx874 and 

xxxxxx814 so it can properly determine whether appellant has established that his diagnosed left 

lateral epicondylitis was causally related to the accepted factors of his federal employment. 

Following this and other such further development as OWCP deems necessary, it shall issue a 

de novo decision.

CONCLUSION

The Board finds that the case is not in posture for decision.

 

16 Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T., 

Docket No. 17-0432 (issued August 17, 2018).
8

ORDER

IT IS HEREBY ORDERED THAT the August 19, 2019 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this order of the Board.

Issued: June 26, 2020

Washington, DC

Christopher J. Godfrey, 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