United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE NATIONAL
OFFICE, Richmond, VA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-1009
Issued: September 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 4, 2012 appellant filed a timely appeal from a December 12, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its December 12, 2011
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

ISSUE
The issue is whether appellant met her burden of proof to establish that she developed a
shoulder, arm, hand, neck and back injury causally related to factors of her federal employment.
FACTUAL HISTORY
On May 5, 2011 appellant, then a 41-year-old lead collections representative, filed an
occupational disease claim (Form CA-2) alleging that she developed a neck, lower head, back,
shoulder and right arm injury as a result of her federal employment duties. She stated that pain
was shooting down her right arm and she was not able to move her shoulders which were
swollen, causing a knot and pain in the back of her neck. Appellant first became aware of her
condition on April 28, 2011 and of its relationship to her employment on May 2, 2011. She was
last exposed on April 28, 2011 and notified her supervisor on May 5, 2011.
By letter dated May 16, 2011, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was asked to respond to the questions provided in the letter within 30 days.
In a June 6, 2011 narrative statement, appellant reported that her job entailed sitting and
performing computer work for seven hours a day. She noted that her desk was not properly
adjusted for her height, causing her to look up at her computer monitor and that her mouse pad
was on the surface of her desk which resulted in her occupational disease. Appellant stated that
she suffered from constant headaches, swelling, stiffness and pain in her neck and pain in her
shoulders, arms, palms and fingers.
In medical reports dated May 4 and 17, 2011, Dr. Dennis Stumpp, Board-certified in
occupational medicine, reported that appellant complained of right neck and shoulder pain
beginning in March 2011 which had worsened in the last week. He noted a history of depression
which began in March 2011. Appellant stated that the pain occasionally shot down her arm to
her dorsal forearm and noted no associated numbness or tingling. Dr. Stumpp reported that
appellant had worked in her job for the last eleven years, eight hours a day for five days a week.
Appellant’s duties included working with a computer 90 percent of the time. She stated that she
changed her desk just over a month ago. Appellant noted that her desk had not been adjusted
properly and her chair had no arm rests. Dr. Stumpp diagnosed cervical strain and noted bilateral
neck, arm and hand pain of somewhat unclear etiology which appeared more like a regional
fibromyalgia-type syndrome. He stated that he was unsure whether there was a clear-cut
relationship between the cervical strain injury and appellant’s work, noting that sometimes
people working on computers get neck and back pain due to prolonged static positioning.
However, Dr. Stumpp noted no change in appellant’s work to account for this and questioned
whether her depression was partially responsible for her injury as her pain coincided with the
onset of treatment for depression.
In medical reports dated May 27 to June 7, 2011, Dr. Monica Haines, a Doctor of
Osteopathic Medicine, reported that appellant was an employee at the Department of the
Treasury for the last eleven years. She noted that appellant was sitting at a different desk with a
computer placed at a higher level for the last two to three months and had to use a left-handed

2

mouse though she was right-hand dominant. Appellant developed daily neck pain, headaches,
pain and numbness of the wrists and fingers, right worse than left and pain radiating down her
right arm. In her June 3, 2011 report, Dr. Haines noted that appellant’s neck pain worsened
when she looked up at her computer and that her headaches went away when her desk was later
changed at work. She stated that appellant suffered from cervical sprain and bilateral wrist
sprain and opined that more probable than not, appellant’s injury was a direct result of the
improper computer desk height with the nondominant hand mouse. Dr. Haines noted that
treatment included a change of the workstation to an ergonomically appropriate height and
mouse. In a June 7, 2011 medical report, she stated that appellant complained of pain in her
hands and right wrist as a result of typing on her keyboard. Dr. Haines diagnosed bilateral wrist
sprain and parasthesia. In duty status reports (Form CA-17) dated May 14 to June 30, 2011, she
reported that appellant could resume work without restrictions.
In support of her claim, appellant submitted physician’s assistant and physical therapy
notes from U.S. Health Works Medical Group dated June 1 to July 12, 2011.
In a June 15, 2011 medical report, Dr. Aarh Deshpande, a treating physician, reported
that appellant complained of pain from turning on her sides which radiated to her arms and
caused numbness to the fingers. He diagnosed cervical sprain and possible right wrist sprain and
carpal tunnel syndrome.
In a July 6, 2011 medical report, Dr. Derek S. Scott, Board-certified in physical medicine
and rehabilitation, reported that appellant was referred by Dr. Haines and Dr. Deshpande for a
physiatric evaluation. He noted that appellant was a right-hand dominant female with a chief
complaint of neck pain, bilateral hand pain and paresthesia. Appellant reported that she was in
her usual state of health until April 28, 2011 when she started experiencing neck pain while
working at her computer. She noted that her symptoms progressively worsened and started to
radiate down into her right upper extremity ending at the elbow. Appellant also complained of
bilateral hand pain that originated at her wrist and radiated down to her second, third and fourth
digits. Her symptoms were aggravated with typing, writing and manipulations. Upon physical
examination, Dr. Scott stated that appellant’s bilateral hand pain and paresthesia with neck pain
was more likely than not related to her industrial injury on April 28, 2011.
By decision dated August 4, 2011, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that her diagnosed medical conditions were causally
related to the established work-related events.
On August 14, 2011 appellant requested review of the written record before the Branch
of Hearings and Review.
In support of her request, appellant submitted a May 3, 2011 progress note from Douglas
D’Jang, a licensed physician’s assistant. She also resubmitted medical reports already of record.
By decision dated December 12, 2011, an OWCP hearing representative affirmed the
August 4, 2011 decision finding that the medical evidence did not demonstrate that appellant’s
wrist and neck conditions were causally related to the established work-related events.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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; that an injury was sustained while 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.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician 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. 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.8

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
OWCP accepted that appellant sat at a desk for seven to eight hours a day using a
computer. It denied her claim, however, on the grounds that the evidence failed to establish a
causal relationship between those activities and her medical condition. The Board finds that the
medical evidence of record is insufficient to establish that appellant sustained a neck, back, arm,
shoulder and hand injury causally related to factors of her employment as a collections
representative.
In medical reports dated May 4 and 17, 2011, Dr. Stumpp reported that appellant
complained of right neck and shoulder pain beginning in March 2011 which had worsened in the
past week. He noted a history of depression which began in March 2011. Appellant stated that
the pain occasionally shot down her arm to her dorsal forearm and noted no associated numbness
or tingling. Dr. Stumpp reported that she had worked in her job for the last eleven years, eight
hours a day for five days a week. Appellant’s duties included working with a computer 90
percent of the time. Dr. Stumpp diagnosed cervical strain and noted bilateral neck, arm and hand
pain of somewhat unclear etiology which appeared more like a regional fibromyalgia-type
syndrome. He stated that he was unsure whether there was a clear-cut relationship between
appellant’s cervical strain and her work, noting that sometimes people working on computers get
neck and back pain due to prolonged static positioning. However, Dr. Stumpp noted no change
in her work to account for this and questioned whether her depression was partially responsible
for her injury as her pain coincided with the onset of treatment for depression in March 2011.
Dr. Stumpp’s medical reports do not support appellant’s occupational disease claim. He
failed to explain how medically her conditions related to her federal employment and he
provided a speculative and equivocal opinion on the cause of her cervical strain and fibromyalgia
type syndrome. Dr. Stumpp noted that there was no change in appellant’s work to account for
her cervical strain and questioned whether her depression was partially responsible for her injury
since her pain coincided with treatment for depression in March 2011. His medical report does
not support her occupational injury claim because it suggested that her depression could be a
result of her injuries and pain. The Board has consistently held that a medical opinion not
fortified by rationale is of limited probative value.9 Thus, Dr. Stumpp’s reports are insufficient
to meet appellant’s burden of proof.
In medical reports dated May 27 to June 7, 2011, Dr. Haines reported that appellant was
an employee at the Department of the Treasury for the last eleven years. She noted that appellant
was sitting at a different desk with a computer placed at a higher level for the last two to three
months and had to use a left-handed mouse though she was right-hand dominant. Dr. Haines
noted that appellant developed daily neck pain, headaches, pain and numbness of the wrists and
fingers and pain radiating down her right arm. In her June 3, 2011 report, she noted that
appellant’s neck pain worsened when she looked up at her computer and that her headaches went
away when her desk was later changed at work. Dr. Haines stated that appellant suffered from
cervical sprain and bilateral wrist sprain and opined that more probable than not, appellant’s
injury was a direct result of the improper computer desk height with the nondominant hand
9

A.D., 58 ECAB 149 (2006).

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mouse. She noted that treatment included a change of the workstation to an ergonomically
appropriate height and mouse. In a June 7, 2011 medical report, Dr. Haines reported that
appellant complained of pain in her hands and right wrist as a result of typing on her keyboard.
She diagnosed bilateral wrist sprain and parasthesia.
The Board finds that the opinion of Dr. Haines is not well rationalized. Dr. Haines
diagnosed cervical sprain, bilateral wrist sprain and parasthesia. She opined that more probable
than not, appellant’s cervical sprain and bilateral wrist sprain were a direct result of the improper
computer desk height with the nondominant hand mouse. While Dr. Haines stated an opinion on
causal relationship, she failed to provide an explanation of how sitting at a desk and using a
mouse with a nondominant hand would cause appellant’s injury. She also failed to adequately
describe appellant’s work duties, did not specify how long she sat at her desk, worked with her
computer and the frequency of other physical movements and tasks. Dr. Haines did not provide
a detailed medical history or note the impact of appellant’s depression upon this claim, or
whether appellant suffered from any other preexisting conditions. Moreover, she did not explain
with medical rationale how physiologically sitting at the desk and using a mouse would have
caused the diagnosed conditions. Medical reports without adequate rationale on causal
relationship are of diminished probative value and do not meet an employee’s burden of proof.10
The opinion of a physician supporting causal relationship must rest on a complete factual and
medical background supported by affirmative evidence, address the specific factual and medical
evidence of record and provide medical rationale explaining the relationship between the
diagnosed condition and the established incident or factor of employment.11 Dr. Haines’ reports
do not meet that standard and are insufficient to meet appellant’s burden of proof.
In a July 6, 2011 medical report, Dr. Scott reported that appellant was a right-hand
dominant female with a chief complaint of neck pain, bilateral hand pain and paresthesia.
Appellant reported that she was in her usual state of health until April 28, 2011 when she started
experiencing neck pain while working at her computer. She noted that her symptoms
progressively worsened and started to radiate down into her right upper extremity ending at the
elbow. Appellant also complained of bilateral hand pain that originated at her wrist and radiated
down to her second, third and fourth digits. Her symptoms were aggravated with typing, writing
and manipulations. Upon physical examination, Dr. Scott stated that appellant’s bilateral hand
pain and paresthesia with neck pain was more likely than not related to her industrial injury on
April 28, 2011.
Dr. Scott had no contact with appellant prior to his July 6, 2011 evaluation. He reviewed
a number of appellant’s medical records and noted that appellant worked at a computer which
involved typing and writing, but failed to identify how many hours a day she used a computer,
how long she worked at her position and the periods and the frequency of other physical
movements and tasks. Dr. Scott provided a diagnosis of bilateral hand pain and paresthesia with
neck pain. With respect to Dr. Scott’s diagnosis of pain, the Board has consistently held that
pain is a symptom, rather than a compensable medical diagnosis.12 Moreover, Dr. Scott did not
10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

C.F., Docket No. 08-1102 (issued October 10, 2008).

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explain how appellant’s job duties could have caused her bilateral hand pain and paresthesia with
neck pain other than offering a generalized opinion that it was more likely than not related to her
industrial injury on April 28, 2011. Further, it appears that he is attributing appellant’s injury to
a single occurrence within a single workday rather than an injury produced by appellant’s work
environment over a period longer than a single workday or shift as alleged by appellant in this
claim.13
The Board notes that Dr. Scott noted that appellant was in her usual state of health until
April 28, 2011 when she started experiencing neck pain while working at her computer. While
appellant’s Form CA-2 notes that she first became aware of her condition on April 28, 2011, the
timing of the onset of her injury contradicts the reports of Dr. Stumpp and Dr. Haines, which
state that appellant’s conditions began on or around March 2011. Dr. Scott failed to mention or
consider facts identified by Dr. Stumpp and Dr. Haines who had previously treated appellant for
her conditions. Lacking a complete and accurate factual background, sufficient medical record
review and rationale, Dr. Scott’s report is insufficient to establish that appellant’s bilateral hand
pain and paresthesia with neck pain were causally related to her employment duties as a
collections representative. Medical reports without adequate rationale on causal relationship are
of diminished probative value and do not meet an employee’s burden of proof.14 As Dr. Scott
failed to provide a well-rationalized opinion on the issue of causal relationship, his report is
insufficient to meet appellant’s burden of proof.15
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s injuries and her work-related duties as a collections
representative. Dr. Deshpande’s June 15, 2011 medical report diagnosed cervical sprain but
failed to state any opinion on causal relationship.16 The Board has held that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value.17 The physician’s assistant and physical therapy notes submitted by appellant
do not constitute competent medical evidence in support of a claim as physical therapists and
physician’s assistants are not physicians as defined under FECA.18 Thus, these reports are of no
probative value.

13

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
14

Supra note 10.

15

Id.

16

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

17

Id.

18

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 Jennifer L. Sharp, 48 ECAB 209 (1996); Thomas R. Horsfall, 48 ECAB 180 (1996);
Barbara J. Williams, 40 ECAB 649 (1988).

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In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s injuries and her factors of federal employment as a lead
collections representative. Thus, appellant has failed to meet her burden of proof.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.19 Appellant may submit additional evidence,
together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
cervical sprain, bilateral wrist sprain and paresthesia are causally related to factors of her
employment as a lead collections representative.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

19

20 C.F.R. § 501.2(c)(1).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-2315
Issued: June 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 17, 2009 appellant filed a timely appeal from the June 2, 2009 nonmerit
decision and May 4, 2009 merit decision of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has jurisdiction over the merits of his
case.
ISSUES
The issues are: (1) whether appellant established that he sustained an injury in the
performance of duty causally related to his employment; and (2) whether the Office properly
denied appellant’s request for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On February 23, 2009 appellant, a 61-year-old letter carrier, filed an occupational disease
claim (Form CA-2) for right hip pain that he alleges produces pain which radiates from his hip

and down his thigh. He attributed his condition to “working long hours,” and activities
associated with “walking mail routes” on “uneven ice and snow.”
Appellant submitted a February 18, 2009 report (Form CA-16) in which
Dr. Kim Countryman, Board-certified in family medicine, presented findings on examination and
diagnosed hip pain.1 By check mark, Dr. Countryman opined that appellant’s condition was
employment related. She attributes his condition to walking on uneven ground in “severe
weather.” In a separate report, also dated February 18, 2009, Dr. Countryman reviewed
appellant’s medical history, presented findings on examination and diagnosed “pelvis/hip” joint
pain.
On March 3, 2009 Dr. Countryman excused appellant from work through March 15, 2009
and provided work restrictions. In a separate report, also dated March 3, 2009, she reviewed his
medical history, presented findings on examination and diagnosed “pelvis/hip” joint pain.
On March 9, 2009 Dr. John F. Nettrour, Board-certified in family medicine, excused
appellant from work “for two weeks.”
Appellant submitted a report (Form CA-17) as well as a separate note, both dated
March 25, 2009, bearing illegible signatures.
By decision dated May 4, 2009, the Office denied the claim, finding that, while appellant
established the employment factors he deemed responsible for his condition, he had not
established that these identified employment factors caused a medically-diagnosed condition.
On May 21, 2009 appellant requested reconsideration.
Appellant submitted no evidence supporting his reconsideration request and by decision
dated June 2, 2009, the Office denied the request, without conducting merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
1

The Board notes that the Office issued a CA-16 form. A properly executed CA-16 form creates a contractual
obligation, which does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim. See Elaine M. Kreymborg, 41 ECAB 256, 259 (1989). The CA-16 form issued to
appellant did not authorize either examination or treatment and was therefore not properly executed.
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).

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based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant established the employment factors he deemed
responsible for his condition. Appellant’s burden is to demonstrate the established employment
factors caused a medically-diagnosed condition. Causal relationship is a medical issue that can
only be proven by rationalized medical opinion evidence. The medical opinion evidence of
record lacks the requisite reasoning to establish the causal relationship between appellant’s
condition and the identified employment factors. Consequently, the Board finds that he has not
established that he sustained an injury in the performance of duty causally related to his
employment.
The reports and notes signed by Dr. Nettrour and Dr. Countryman have diminished
probative value on the issue of causal relationship. The weight of a medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of the physician’s knowledge of the facts of the case, the medical history provided
the care of analysis manifested and the medical rationale expressed in support of the stated
conclusions.9 Dr. Nettrour’s note did not present a diagnosis, supported by a review of
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

See Anna C. Leanza, 48 ECAB 115 (1996).

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appellant’s medical history and findings on examination, nor did he explain how the established
employment factors caused a medically-diagnosed condition.10
Dr. Countryman diagnosed “pain,” which is a symptom, not a compensable diagnosis.11
While she check marked “yes” to the question whether appellant’s condition was work related
and attributed appellant’s condition to walking on uneven ground in “severe weather,” her
opinion is not supported by sufficient medical rationale. The Board has held that an opinion on
causal relationship, which consists only of a physician checking “yes” to a medical form report
question on whether the claimant’s disability was related to the history, is of diminished
probative value.12 Furthermore, Dr. Countryman did not describe the mechanism of injury; that
being the process by which appellant’s condition was produced by the established employment
factors. These defects reduce the probative value of these physicians’ opinions such that their
notes and reports do not establish the requisite causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.13
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.14 The fact that a condition manifests itself or worsens during a
period of employment15 or that work activities produce symptoms revelatory of an underlying
condition16 does not raise an inference of causal relationship between a claimed condition and
employment factors.
Because the medical evidence contains no reasoned discussion of causal relationship, one
that soundly explains how the established employment factors caused or aggravated a diagnosed
medical condition, the Board finds that appellant has not established the essential element of
causal relationship.

10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

12

Lucrecia, M. Nelson, 42 ECAB 583, 594 (1991).

13

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
14

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

15

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

16

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

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LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.18 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.19 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.20
17

ANALYSIS -- ISSUE 2
Appellant’s reconsideration request did not demonstrate that the Office erroneously
applied or interpreted a specific point of law, nor did it advance a relevant legal argument not
previously considered by the Office. Consequently, he is not entitled to merit review under the
first two enumerated grounds under 20 C.F.R. § 10.606(b)(2).
Because appellant did not submit new relevant and pertinent evidence with his
reconsideration request, he was not entitled to a review of the merits of his claim based on the
third requirement under section 10.606(b)(2). Accordingly, the Office properly denied his
request for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty causally related to his employment. The Board also finds that the Office
properly denied his request for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

17

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

20

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the June 2 and May 4, 2009 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: June 22, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRUBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1469
Issued: February 24, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 26, 2009 appellant, through her attorney, filed a timely appeal from
September 30, 2008 and April 23, 2009 merit decisions of the Office of Workers’ Compensation
Programs denying her claim for disability compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she is entitled to compensation for
disability for four hours per day on August 2, 7, 9 and 16, 2008 due to her accepted employment
injury.
FACTUAL HISTORY
On December 9, 1998 appellant, then a 48-year-old mail processor clerk, filed an
occupational disease claim alleging that she sustained right thumb strain and right trapezius

strain due to factors of her federal employment.1 The Office accepted the claim, assigned file
number xxxxxx476, for right thumb strain, a right trapezius strain and a right rotator cuff repair.
Appellant worked in a permanent modified position beginning July 29, 1999 as a modified mail
processor. She underwent a right rotator cuff repair on January 30, 2001. On March 23, 2001
appellant returned to her position as a modified mail processor.
On August 5, 2008 appellant filed a claim for compensation for disability from July 19 to
August 1, 2008. On August 19, 2008 she filed a claim for intermittent wage loss from August 2
to 15, 2008. An attached time analysis form provided that appellant used four hours of leave and
four hours of leave without pay on August 2, 7, 8 and 9, 2008. On August 20, 2008 the Office
informed her that she needed to provide medical evidence by September 11, 2008 supporting the
need for time lost from work due to her employment injury.
In a duty status report dated August 1, 2008, Dr. Anthony M. George, Board-certified in
preventive medicine and appellant’s attending physician, diagnosed a right shoulder rotator cuff
tear and found that she could work four hours per day. The duty status report indicated that she
usually worked four hours a day five days per week. Dr. George found that appellant could
resume her part-time work. He checked “yes” that the history of injury corresponded to that on
the form of a rotator cuff tear and surgery due to repetitive movements.
By letter dated September 3, 2008, the Office noted that appellant worked four hours in
connection with an injury under file number xxxxxx449. It informed her that to claim lost time
under file number xxxxxx476 she needed to submit evidence that she received medical treatment
for the dates claimed.
On September 2, 2008 appellant claimed compensation for lost time from August 16 to
29, 2008. A time analysis form indicated that she used leave without pay for four hours per day
and leave for four hours per day.2
In a September 29, 2008 memorandum to the file, a claims examiner noted that appellant
was entitled to compensation for time lost due to medical appointments for 12 hours from
July 19, 2009 to August 8, 2008.
By decision dated September 30, 2008, the Office denied appellant’s claim for 16 hours
of time lost on August 2, 7, 9 and 16, 2008. It noted that there was no medical evidence showing
either that she received treatment on those dates or was disabled from work. The Office found
that appellant was entitled to compensation for time lost on July 19 and August 1 and 8, 2008.
In a report dated September 30, 2008, Dr. George addressed appellant’s disability for
employment on July 19 and August 1, 2008.

1

The Office previously accepted that appellant sustained right carpal tunnel syndrome under file number
xxxxxx167. In 1999, its doubled files numbers xxxxxx167 and xxxxxx476.
2

An official with the employing establishment noted that she also claimed lost time during this period under
another file number.

2

On October 2, 2008 appellant, through her attorney, requested an oral hearing. At the
hearing, held on February 9, 2009, her attorney requested that the hearing representative hold the
record open for 30 days for the submission of supporting evidence. No further evidence was
received into the record.
By decision dated April 23, 2009, the hearing representative affirmed the September 30,
2008 decision. She noted that there was no medical evidence supporting the need for time lost
from work on the dates in question due to appellant’s accepted right shoulder condition.
LEGAL PRECEDENT
The term disability as used in the Federal Employee’ Compensation Act3 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.4 For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled for work as a result of the accepted employment injury.5
Whether a particular injury caused an employee disability for employment is a medical issue
which must be resolved by competent medical evidence.6 The fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.7
The Board will not require the Office to pay compensation for disability in the absence of
any 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.8
The Board has long recognized that, under section 8103,9 payment of expenses incidental
to the securing of medical services encompasses payment for loss of wages incurred while
obtaining medical services. An employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury.10

3

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

4

Paul E. Thams, 56 ECAB 503 (2005).

5

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

8

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

5 U.S.C. § 8103.

10

Daniel Hollars, 51 ECAB 355 (2000); Antonio Mestres, 48 ECAB 139 (1996).

3

ANALYSIS
The Office accepted that appellant sustained right thumb strain, a right trapezius strain
and a right rotator cuff repair under file number xxxxxx476.11 On August 5, 2008 appellant
claim for wage loss for four hours on July 19 and August 1, 2008. On August 19, 2008 she filed
a claim for wage loss for four hours per day on August 2, 7, 8 and 9, 2008. At the time appellant
filed her claims for wage loss, she worked four hours per day. The Office accepted that she was
entitled to compensation for time lost on July 19 and August 1 and 8, 2008. Appellant burden to
establish through the submission of medical evidence that she was disabled from work or
attending medical appointments for the remaining claimed time periods due to her accepted
employment injury.
In a duty status report dated August 1, 2008, Dr. George diagnosed a right shoulder
rotator cuff tear and found that appellant could work four hours per day. He checked “yes” that
the history provided on the form corresponded to that given by the employee and noted that she
was status post rotator cuff surgery. Dr. George indicated that appellant could return to her parttime work. As he did not find that she was unable to work her four hours per day, his report is
insufficient to meet her burden of proof. Additionally, an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form question on whether the claimant’s
condition was related to the history given is of little probative value. Without any explanation or
rationale for the conclusion reached, such report is insufficient to establish causal relationship.12
In a report dated September 30, 2008, Dr. George addressed why appellant missed work
on July 19 and August 1, 2008. As discussed, however, the Office accepted that she was entitled
to wage-loss compensation for those dates.
There is no medical evidence from a physician addressing whether appellant was disabled
from work for four hours per day on August 2, 7, 9 and 16, 2008 or establishing that she received
medical treatment on those dates for her accepted work injury. As noted, for each period of
disability claimed, she has the burden of proving by the preponderance of the reliable, probative
and substantial evidence that she is disabled for work as a result of her employment injury.13
Appellant has not provided medical evidence supporting disability for four hours per day on
August 2, 7, 9 and 16, 2008 and thus has not meet her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she is entitled to compensation for
disability for four hours per day on August 2, 7, 9 and 16, 2008 due to her accepted employment
injury.
11

The Office also accepted that appellant bilateral carpal tunnel syndrome under file number xxxxxx167, which it
doubled with file number xxxxxx476.
12

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
13

See Sandra D. Pruitt, supra note 5.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 23, 2009 and September 30, 2008 are affirmed.
Issued: February 24, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Piedmont, CA, Employer
__________________________________________

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Appearances:
Sylvia R. Johnson, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0238
Issued: July 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 10, 2014 appellant, through her representative, filed an appeal from a
May 14, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish disability from
June 29 to July 29, 2013 due to her accepted conditions.
On appeal her representative asserts that appellant has a consequential emotional
condition caused by abuse and harassment of employing establishment management such that the
May 14, 2014 decision should be overturned.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 30, 2003 appellant, then a 42-year-old mail carrier who was working
modified duty, had filed an occupational disease claim alleging that employment duties caused
right arm and elbow pain and depression. She stopped work on October 23, 2003. OWCP
accepted right cubital tunnel syndrome and depression, single episode, moderate, due to pain.
Appellant received wage loss and medical compensation and returned to modified duty on
January 3, 2004.2 She continued modified duty until October 12, 2006 when she underwent a
right ulnar transposition. Appellant returned to modified duty on November 14, 2006. On
July 8, 2011 she was granted a schedule award for a four percent impairment of the right upper
extremity.
On July 1, 2013 appellant filed a Form CA-7, claim for compensation, for the period
June 29 to July 29, 2013. In a July 2, 2013 report, Helena Edith Weil, Ph.D., an attending
psychologist, reported a history that appellant visited an emergency department with symptoms
of anxiety, post-traumatic stress disorder (PTSD), depression, and stroke-like symptoms after
two weeks of harassment, stress, and intimidation at work. She diagnosed PTSD; chronic
depression, major; generalized anxiety disorder; and chronic panic reactions, and advised that
appellant would be totally disabled indefinitely.
By letter dated July 12, 2013, OWCP informed appellant of the type of evidence needed
to support her claim. Appellant was specifically informed that if she were claiming an emotional
condition resulting from harassment, threats, and improper treatment, she must provide specific
details of the incidents which she believed aggravated her accepted condition, and Dr. Weil
should furnish a report explaining how the claimed work factors caused and/or aggravated the
accepted emotional condition. She was afforded 30 days to respond.
In a July 2, 2013 report, Dr. Michael B. Krinsky, a Board-certified orthopedic surgeon,
reported seeing appellant that day for recurrent paresthesias into the ulnar distribution of her
right elbow. He recommended continued physical therapy. In a July 29, 2013 report, Dr. Weil
stated that appellant left work on June 28, 2013 after reporting a severe anxiety attack while
performing her work duties and went to an emergency room where she was treated for an
elevated heart rate, elevated blood pressure, acute anxiety/panic reactions, and rule-out stroke.
She advised that an estimated return to work was September 1, 2013. Appellant also attended
physical therapy sessions on July 1, 2, 3 and 29, 2013.
By decision dated August 13, 2013, OWCP denied appellant’s claim for disability
compensation for the period June 29 to July 29, 2013. Appellant timely requested a hearing. In
an undated statement she described difficulties with two managers, B.W. and U.H., beginning
June 18, 2013, maintaining that they pressured her about scheduling medical appointments and
about physician’s orders regarding absences from work, and gave her contradictory work
assignments. Appellant stated that on June 28, 2013 she was again pressured about medical
2

Appellant has a separate claim, adjudicated by OWCP under file number xxxxxx327, accepted for left lateral
epicondylitis, left wrist deQuervain’s tendinitis, and right shoulder strain. Under that claim she had a left ulnar
nerve transposition. That claim is not presently before the Board. The instant claim was adjudicated under file
number xxxxxx168.

2

appointments, and became ill while delivering mail, returned to the employing establishment,
filled out a leave slip, and left.
An emergency department record dated June 28, 2013 indicated that appellant was
treated for panic attacks by Dr. Matthew William Rehrer, Board-certified in emergency
medicine. An electrocardiogram was normal, and appellant was advised to follow up with a
psychiatrist.
In an August 23, 2013 report, Dr. Weil noted that appellant had an accepted right ulnar
nerve lesion and a depressive psychosis under this claim. She stated that appellant had been
prescribed psychiatric medication but had been able to work limited duty until a new
management team took over the employing establishment. Dr. Weil stated that, after the
management change occurred, she saw an immediate and drastic decompensation of appellant’s
psychological injury, which led to extreme anxiety, depression, nervousness, and fear, along with
physical symptoms including increased heart rate, sweating, nightmares, and flashbacks, all of
which were due to an exacerbation of her preexisting condition. She reported test findings and
diagnosed severe depression, anxiety, PTSD, and panic reactions. Dr. Weil stated that appellant
had been hospitalized for a similar work-related event in 20033 and advised that appellant could
not work and was being treated with continued therapy and medication. Appellant also
submitted disability slips from Dr. Weil dated May 2 to December 9, 2013.
In reports dated July 2, 2013 to January 7, 2014, Dr. Krinsky advised that appellant
continued to do well with regard to her right elbow condition.
In correspondence dated July 1, 2013 addressed to the postmaster, 35 carriers alleged that
B.W., U.H., and another manager, K.S., created a hostile and unhealthy work environment,
stating that they were confrontational and demeaning and exposed workers to hazards, all of
which caused high levels of stress.
At the hearing, held on February 27, 2014, appellant’s representative maintained that
appellant’s current emotional condition was a consequential injury to the previously accepted
depression. Appellant described her job duties and maintained that when new management came
in they expected her to work outside her restrictions and that she was not given enough time to
perform her job duties. She testified that on June 28, 2013 she had a confrontation with one of
the supervisors, tried to deliver mail, had a panic attack, and went to the emergency room.
Evidence submitted after the hearing included a June 20, 2013 report in which Dr. Weil
indicated that appellant had mental health appointments twice a week and that she could not
return to work after the sessions and should go directly home. In a November 20, 2013 report,
Dr. Weil reiterated her findings and conclusions. She also reported that in May 2008 appellant’s
work restrictions were ignored, and she was treated by Diana Morgan Dean, Ph.D., when
appellant was subjected to harassment and abuse in the workplace.4 Dr. Weil concluded that
3

Records from a 2003 hospitalization are not found in the case record before the Board. The 2003 records found
in the record pertain to outpatient psychological treatment.
4

In reports dated May 29 to November 20, 2008, Dr. Dean described appellant’s condition. She diagnosed
adjustment disorder with mixed anxiety and depressed mood due to stress at work.

3

there were no nonindustrial stressors which contributed to appellant’s current severe psychiatric
crisis which was a flare-up of her previous injury. On a form report dated November 21, 2013,
Dr. Weil reiterated her diagnoses, described mental health evaluation findings, and advised that
appellant was slowly making progress. On April 29, 2014 she reported that appellant continued
to be anxious, depressed, and fearful as a result of the preexisting depressive psychosis. Dr. Weil
recommended continued therapy.5
On June 27, 2013 Dr. Krinsky advised that appellant was not to return to work after
physical therapy sessions due to right shoulder and left elbow pain. On February 18, 2014 he
reported that she continued to do well with regard to her right shoulder.
Settlement agreements reached in March 2014 between the employing establishment and
the National Association of Letter Carriers indicated that Ms. Scott would not manage at the
employing establishment for two years, Barbara Wright would not supervise there for two years,
and Ms. Humphries would not supervise there for six months.
In a May 14, 2014 decision, an OWCP hearing representative denied appellant’s claim
for disability compensation for the period June 29 to July 29, 2013. The hearing representative
found that appellant had not established that her accepted condition had caused her disability.
Rather, the hearing representative found that she was claiming new events at work beginning in
June 2013, which caused or contributed to a worsening of her preexisting depression as well as
causing new psychiatric conditions. She advised that appellant could file a new occupational
disease claim regarding these new claimed factors of employment.
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.6 Disability is
thus not synonymous with physical impairment which may or may not result in incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.7 The test of “disability”
under FECA is whether an employment-related impairment prevents the employee from engaging
5

On May 8, 2014 appellant filed an occupational disease claim alleging that work factors caused PTSD, anxiety,
major depressive disorder, panic disorder, and sinus tachycardia. She stated that she first became aware of her
illness on October 23, 2003 and its relationship to employment on June 26, 2013. The May 8, 2014 occupational
disease claim was adjudicated by OWCP under file number xxxxxx801 and was under development at the time of
the May 14, 2014 decision, on appeal to the Board. Under claim number xxxxxx168, appellant filed additional
claims for compensation including a recurrence claim in which she stated that she sustained a recurrence of
disability on June 28, 2013. By decision dated November 4, 2013, OWCP denied that claim. Appellant timely
requested a hearing from that decision. On January 3, 2014 she filed a claim for intermittent compensation
beginning May 7, 2013. In a February 27, 2014 decision, OWCP denied that claim. Appellant timely requested a
hearing from the February 27, 2014 decision, that was held on April 23, 2014. These claims remained under
development by OWCP at the time of the May 14, 2014 decision, on appeal before the Board, at this time.
6

See Prince E. Wallace, 52 ECAB 357 (2001).

7

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

4

in the kind of work he or she was doing when injured.8 Whether a particular injury causes an
employee to be disabled for work and the duration of that disability, are medical issues that must
be proved by a preponderance of the reliable, probative, and substantial medical evidence.9
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.10
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.11 The Board will not
require OWCP to pay compensation for disability in the absence of any medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow employees to self-certify their disability and entitlement to
compensation.12 Causal relationship is a medical issue. 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 specific employment factors identified by
the claimant.13
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish total
disability for the period June 29 to July 29, 2013 due to her accepted conditions of right cubital
tunnel syndrome and depression, single episode, moderate, due to pain. Appellant has claimed
that her current emotional condition, which caused disability, was a consequence of the
previously accepted conditions. She submitted a number of reports from Dr. Weil, an attending
psychologist, to support this contention.
Rather than establishing that appellant’s current emotional condition was due to physical
pain caused by her right cubital tunnel syndrome, she has alleged new employment factors,
mistreatment by new management at the employing establishment, as a cause for her current
disability. Dr. Weil failed to establish that appellant’s current diagnoses of severe depression,
anxiety, PTSD, and panic reactions were related to the previously accepted conditions. She
8

Corlisia Sims, 46 ECAB 963 (1995).

9

Tammy L. Medley, 55 ECAB 182 (2003).

10

See Charles W. Downey, 54 ECAB 421 (2003).

11

Laurie S. Swanson, 53 ECAB 517 (2002).

12

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

13

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

5

indicated that appellant had done well until a new management team arrived at the employing
establishment, which caused a deterioration in appellant’s emotional condition. Dr. Weil’s
opinion is of insufficient probative value to establish that appellant’s disability was related to the
2003 accepted work-related conditions.14
The Board finds that the evidence fails to establish disability for the claimed period due
to the accepted conditions. While Dr. Krinsky advised on June 27, 2013 that appellant was not
to return to work after physical therapy sessions due to right shoulder and left elbow pain, the
accepted condition in this case is a right elbow condition.
CONCLUSION
The Board finds that appellant did not establish that she was entitled to total disability
compensation for the period June 29 to July 29, 2013 due to either the accepted conditions or to a
claimed consequential emotional condition.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

14

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.I., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Orlando, FL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1027
Issued: January 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On April 19, 2016 appellant, through counsel, filed a timely appeal from a February 26,
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 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.

ISSUE
The issues are: (1) whether appellant met his burden of proof to expand his claim to
include additional conditions; and (2) whether he established permanent impairment of his left
upper and lower extremities as a result of the December 28, 2011 employment injury.
FACTUAL HISTORY
On December 29, 2011 appellant, then a 43-year-old marine interdiction agent, filed a
traumatic injury claim (Form CA-1) alleging that on December 28, 2011 he sprained his lower
back and sustained contusions to his left elbow and knee when he was involved in a motor
vehicle accident. The claim form does not indicate whether he stopped work. OWCP accepted
appellant’s claim for left elbow sprain, left knee and leg sprain, and lumbar sprain. Appellant
received medical treatment. The last medical report was dated June 11, 2012.3
OWCP received appellant’s claim for a schedule award (Form CA-7) on
December 13, 2012. In a decision dated January 28, 2013, it denied his claim for a schedule
award. On February 7, 2013 OWCP received appellant’s request, through counsel, for a
telephone hearing before an OWCP hearing representative. By decision dated July 23, 2013, an
OWCP hearing representative affirmed the January 28, 2013 denial decision, finding that the
medical evidence of record was insufficient to establish permanent impairment of a scheduled
member of the body due to his December 28, 2011 employment injury.
Appellant filed another claim for a schedule award on March 31, 2015.
In a letter dated April 6, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish his schedule award claim. It requested that he provide a medical report
from his treating physician addressing whether he reached maximum medical improvement
(MMI) and whether his accepted conditions caused permanent impairment pursuant to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Appellant was afforded 30 days to submit the additional
evidence.
OWCP denied appellant’s claim for a schedule award by decision dated May 11, 2015. It
found that the medical evidence of record failed to establish a permanent impairment according
to the sixth edition of the A.M.A., Guides causally related to his accepted conditions.
On May 19, 2015 OWCP received appellant’s request, through counsel, for a telephone
hearing before an OWCP hearing representative.
3

The record reflects that appellant has other traumatic injury claims. OWCP accepted that on September 23,
2009 appellant sustained neck and thoracic sprains, brachial neuritis and radiculitis as a result of a boat bouncing
over rough waves. (OWCP File No. xxxxxx738). On September 11, 2012 it paid schedule award benefits for six
percent permanent impairment of the left upper extremity. On July 25, 2012 appellant claimed injury to the neck
and shoulder due to bouncing of a boat over rough waves. (OWCP File No. xxxxxx948). This claim remains in
denied status. Appellant sustained a traumatic injury on April 16, 2015 due to excessive and repetitive manipulation
of a shotgun and repetitive recoil. (OWCP File No. xxxxxx637). This claim was accepted for neck strain, and
appellant is receiving wage-loss compensation for loss of premium pay due to this injury.

2

By letter dated July 23, 2015, counsel indicated that he was enclosing a medical report
from Dr. Samy F. Bishai, an orthopedic surgeon, which contained a statement that appellant had
reached MMI and an impairment rating under the sixth edition of the A.M.A., Guides.
On July 23, 2015 OWCP received two reports from Dr. Bishai. In a May 5, 2015 report,
Dr. Bishai related that appellant was involved in a motor vehicle accident at work on
December 28, 2011. He reviewed appellant’s medical history and conducted an examination.
Dr. Bishai noted that appellant had sustained a previous injury in 2009 which has caused cervical
disc herniations at C5-6. He reported tenderness and swelling overlying the medial and lateral
joint lines of appellant’s left knee joint. Dr. Bishai noted that examination of the left elbow
revealed tenderness overlying the lateral humeral epicondyle of the humerus and some
tenderness overlying the medial humeral epicondyle. Range of motion of the left elbow was full.
Examination of the dorsolumbar spine showed tenderness and paraspinal spasm affecting the
paraspinal muscles of the dorsolumbar region. Straight leg raise testing was 60 degrees on both
right and left sides. Neurological examination of the lower extremities revealed diminished left
ankle reflex and diminished sensation in the left thigh, leg, and foot. Dr. Bishai related that a
magnetic resonance imaging (MRI) scan of the left knee showed partial intrasubstance tear of the
proximal patellar tendon with soft tissue edema and myxoid degeneration of the posterior horn of
the medial meniscus and a small joint effusion. He diagnosed internal derangement of the left
knee joint, lateral humeral epicondylitis of the left elbow, and lumbar disc syndrome with
radiculopathy of the left lower extremity. Dr. Bishai concluded that appellant suffered multiple
injuries to his left knee joint, left elbow, and lower back in the vehicular accident that occurred
on December 28, 2011.
In a May 7, 2015 report, Dr. Bishai noted that appellant complained of pain in his left
knee, left elbow, and lower back radiating into the lower extremities, more severe on the left
side. He related that a May 6, 2015 MRI scan of the lumbar spine revealed broad-based disc
protrusion and herniation reducing the canal diameter more to the left at L4-5 with facet joint
degenerative joint disc/overgrowth, mild central disc protrusion at L5-S1, and mild disc
protrusion to the left at L2-3. Dr. Bishai diagnosed internal derangement of the left knee, partial
intrasubstance tear of the proximal patellar tendon, myxoid degenerative changes of the posterior
horn of the medial meniscus of the left knee joint, lateral humeral epicondylitis of the left elbow,
herniated lumbar discs at L2-3, L4-5, and L5-S1, and radiculopathy of the left lower extremity.
He explained that appellant suffered injuries to his left knee, left elbow, and back in a motor
vehicle accident that occurred on December 28, 2011.
Dr. Bishai opined that appellant had reached MMI on May 5, 2015. He indicated that he
used the sixth edition of the A.M.A., Guides to calculate an impairment rating for appellant’s left
knee joint condition because that was accepted by OWCP. Dr. Bishai referenced Table 16-23 on
page 549 and explained that he used the stand alone range of motion to calculate impairment
because the limitation in the range of motion of his left knee joint was the most disabling part of
his injuries and was causing him a great deal of loss of function. He reported that appellant had 5 degrees extension lag for 10 percent left lower extremity impairment and 100 degrees flexion
for 10 percent lower extremity impairment. Dr. Bishai combined the impairment rating for loss
of flexion and extension for a total of 20 percent left lower extremity impairment. He concluded
that appellant had 20 percent lower extremity impairment as a result of the December 28, 2011
employment injury.

3

On January 11, 2016 a hearing was held. Counsel contended that the May 11, 2015
decision was correct at the time it was issued, but now a May 7, 2015 evaluation by Dr. Bishai
remedied the defect in appellant’s claim. Counsel argued that the case should therefore be
remanded to OWCP for further medical development. He specifically requested that OWCP
refer appellant’s schedule award claim to an OWCP medical adviser to review Dr. Bishai’s
May 7, 2015 impairment rating and provide an opinion regarding whether appellant sustained a
permanent impairment causally related to the December 28, 2011 employment injury.
By decision dated February 26, 2016, an OWCP hearing representative affirmed the
May 11, 2015 denial decision. She reported that Dr. Bishai’s reports were insufficient to
establish a permanent impairment due to appellant’s employment injury because they were based
on an inaccurate and incomplete history, included diagnosed conditions that were not accepted
by OWCP, and did not contain sufficient medical rationale explaining how he sustained any
permanent impairment causally related to the December 28, 2011 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.4 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.5 Neither the 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.6
ANALYSIS -- ISSUE 1
By decision dated February 26, 2016, an OWCP hearing representative affirmed the
May 11, 2015 decision which denied appellant’s schedule award claim. She also determined that
appellant failed to submit sufficient medical evidence to establish that he sustained additional
medical conditions causally related to the December 28, 2011 employment injury. The Board
finds that appellant has not met his burden of proof to expand his claim to include any additional
conditions as a result of the December 28, 2011 employment incident.
Appellant submitted medical reports by Dr. Bishai dated May 5 and 7, 2015. He
described appellant’s December 28, 2011 employment injury and also noted that appellant had
previously accepted injuries to his neck and left shoulder. Upon examination, Dr. Bishai
reported tenderness and swelling of appellant’s left knee and left elbow. Examination of
appellant’s spine also showed tenderness and paraspinal spasm. Dr. Bishai diagnosed internal
derangement of the left knee joint, lateral humeral epicondylitis of the left elbow, and lumbar
4

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

6

Jennifer Atkerson, 55 ECAB 317 (2004).

4

disc syndrome with radiculopathy of the left lower extremity. He opined that appellant suffered
these injuries to his left knee joint, left elbow, and lower back in a vehicular accident that
occurred on December 28, 2011.
Although Dr. Bishai provided an opinion on causal relationship, he did not offer any
medical rationale to support his conclusion. The Board finds that medical evidence that states a
conclusion but does not offer any rationalized medical explanation on the cause of a claimant’s
condition is of limited probative value on the issue of causal relationship.7
The Board further notes that while Dr. Bishai mentioned appellant’s previous 2009
injury, he did not reference appellant’s 2012 and 2015 traumatic injury claims. The Board has
held that medical reports must be based on a complete and accurate factual and medical
background and medical opinions based on an incomplete or inaccurate history are of limited
probative value.8 Because Dr. Bishai did not provide a rationalized medical opinion based on a
complete and accurate history explaining how appellant sustained additional conditions to his left
knee, left elbow, and back as a result of the December 28, 2011 employment incident, rather than
from his other injuries, his reports are insufficient to establish expansion of appellant’s 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. §§ 10.606 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA9 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.10
OWCP procedures provide that, if a claimant’s physician provides an impairment rating,
the case should be routed to OWCP’s medical adviser for an opinion concerning the nature and

7

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

8

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

9

Id.

10

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

5

percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.11
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained sprains to the left elbow, knee, leg, and back
due to a December 28, 2011 employment injury. On March 31, 2015 appellant filed a claim for
a schedule award. In an impairment evaluation dated May 7, 2015, Dr. Bishai noted that
appellant suffered injuries to his left knee, left elbow, and back in a motor vehicle accident that
occurred on December 28, 2011 and provided findings on examination. He opined that appellant
had reached MMI on May 5, 2015 and had 20 percent impairment of the left lower extremity
according to Table 16-23 of the sixth edition of the A.M.A., Guides, due to his accepted left knee
injury of December 28, 2011. OWCP denied appellant’s claim finding that the medical evidence
was insufficient to establish his schedule award claim. The Board finds that this case is not in
posture for decision.
As Dr. Bishai did provide an impairment rating under the sixth edition of the A.M.A.,
Guides, the file should have been routed to OWCP’s medical adviser for an opinion concerning
the nature and percentage of impairment in accordance with the A.M.A., Guides.12 OWCP’s
medical adviser is to provide rationale as to the degree of permanent impairment awarded.13 The
Board, therefore, will set aside the February 26, 2016 decision and remand the case to OWCP.
On remand, OWCP should have a medical adviser evaluate Dr. Bishai’s May 7, 2015 report and
provide an opinion concerning the extent of appellant’s impairment in accordance with the
A.M.A., Guides. After such further development as may be necessary, it shall render a de novo
decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof to expand his claim to
include additional conditions causally related to the December 28, 2011 employment incident.
The Board further finds that the case is not in posture for decision regarding whether appellant
established permanent impairment to his left upper and lower extremities as a result of his
accepted injuries.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(e) (February 2013); Tommy R. Martin, 56 ECAB 273 (2005).
12

Id.

13

See M.R., Docket No. 13-1279 (issued December 5, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: January 11, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CITIZENSHIP & IMMIGRATION
SERVICES, New York City, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1670
Issued: October 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 5, 2013 appellant, through his representative, filed a timely appeal from the
March 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for compensation for traumatic injury. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on November 17, 2011, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 22, 2011 appellant, then a 40-year-old immigration services officer, filed a
traumatic injury claim (Form CA-1) alleging that he sustained straining injuries to his back, knee
and arm, as well as anxiety, in the performance of duties on November 17, 2011. He stated that
his injuries occurred as a result of a physical altercation in which an applicant attacked a
coworker and appellant intervened to defend his colleague.Appellant was taken to the emergency
room via ambulance after the altercation occurred.
In support of his claim, appellant submitted emergency treatment discharge notes dated
November 17, 2011 from Dr. Ermany Castillon, Board-certified in general medicine, in which
she diagnosed back pain, knee pain and elbow pain. Dr. Castillon also submitted emergency
response notes of the same date, stating that the purpose of the emergency response was a
traumatic assault and that he had low back pain. The employing establishment issued appellant a
properly completed Form CA-16 on the date of the incident, describing his injury as muscle and
joint strain and disorientation due to a traumatic assault.2
In a letter dated November 22, 2011, John Minichelli, animmigration services
officer,described the events resulting in appellant’s injury. He stated that on November 17,
2011, he witnessed appellant restraining an unknown male in a cubicle near the entrance of a
room at appellant’s place of work. According to Mr. Minichelli, appellant exerted a great deal of
energy in restraining the unknown male and called for someone to get security personnel, who
came about five minutes later, by which time the unknown male had stopped resisting.
On November 28, 2011 OWCP requested additional medical evidence from appellant, on
the grounds that the medical evidence submitted from Dr. Castillon had only provided a
diagnosis of pain and pain is a symptom rather than a valid diagnosis.The development letter did
not contain any mention of musculoskeletal or “musketal” strain.
In response, appellant submitted an attending physician’s report (Form CA-20), dated
November 29, 2011, from Dr. Sydney Mehl, a Board-certified physician of internal medicine and
cardiovascular disease, in which Dr. Mehl diagnosed appellant with musculoskeletal strain and
“low back [illegible].” Dr. Mehl checked the box indicating that appellant’s condition was
caused or aggravated by an employment activity, writing “intervened in fight” as an explanation,
and noted that his diagnosis was based on an examination. Appellant also submitted bills from
New York Downtown Hospital and Fire Department, City of New York for services rendered on
November 17, 2011.
By decision dated January 5, 2012, OWCP denied appellant’s claim, finding that the
medical evidence was not sufficient to support his claim for compensation. Specifically, it noted
that “the medical evidence received was insufficient to support your claim because you [sic]
treating physician diagnosed you with ‘musketal strain’ and ‘low back.’As stated in the
2

Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Principles of Bill Adjudication, Chapter
5.204.2(a) (January 1996) provides that a completed Form CA-16 obligates OWCP to pay for any injury-related
treatment performed by the physician or medical facility identified in Part A. In this case, the employing
establishment issued appellant a Form CA-16 a properly completed Form CA-16 on the day of the incident.

2

development letter dated November 28, 2011 musketal strain and low back pain or [sic] not valid
condition [sic] under FECA Program.” OWCP accepted that appellant was a federal civilian
employee who filed a timely claim and that the events leading to injury occurred as described.
On December 20, 2012 appellant, through his representative, requested reconsideration of
the January 5, 2012 decision of OWCP. With his request, he submitted a report dated April 18,
2012 from Dr. Charles P. Melone, Jr., a Board-certified orthopedic surgeon, in which Dr. Melone
noted that appellant underwent surgery on March 13, 2012 for treatment of his right thumb
carpometacarpal joint arthrosis. Dr. Melone did not opine as to whether appellant’s condition
was work related and did not mention any work-related factors. Appellant also submitted a
consultation note, dated February 6, 2012, allegedly from Dr. Melone, which was largely
illegible and did not contain a legible signature. There was no legible text on this consultation
note indicating that the author opined as to the cause of appellant’s injury.
Additionally, appellant submitted a Fire Department, City of New York prehospital care
report dated November 17, 2012, in which an unnamed individual recounted that appellant had
stated his injury to his lower back occurred when he was protecting a coworker from an assault
from an applicant and was struck by a wooden cane.
By decision dated March 18, 2013, OWCP reviewed the merits of appellant’s claim, but
did not modify its prior decision, on the grounds that the new medical evidence presented,
Dr. Melone’s report, was not sufficient to establish the medical component of fact of injury. It
stated that Dr. Melone’s report did not reference the cause of appellant’s conditions or how the
need for surgery stemmed from the November 17, 2011 incident. OWCP also stated that the
report did not address any assault or evidence that appellant’s physician was treating appellant
for injuries relating to the November 17, 2011 work incident.Therefore, it affirmed its denial of
appellant’s claim because it found that a medical condition had not been diagnosed as it related
to the assault on him that occurred on November 17, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing 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 time
limitation period of FECA, that an injury4 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.5

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); seeSteven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).

3

Appellant alleges a traumatic injury arising out of an altercation or assault.To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. A fact of injury determination
is based on two elements. 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 sufficient evidence, generally only in the form of
medical evidence, to establish that the employment incident caused a personal injury. An
employee may establish that the employment incident occurred as alleged but fail to show that
his or her condition relates to the employment incident.6 An assault, to be compensable, must
either arise in the course of employment, or if it does not, must be directed at the employee
because of his employment.7
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.8 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.9 The weight of the 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.10
ANALYSIS
Appellant alleged that on November 17, 2011, he sustained injuries to his back, knee and
arm as a result of a physical altercation in which an applicant attacked a coworker and he
intervened to defend his colleague. OWCP accepted that the November 17, 2011 incident
occurred in the performance of duty, as alleged, but found that the medical evidence was
insufficient to establish that he sustained any injuries causally related to the accepted incident.
The Board finds that appellant failed to meet his burden of proof to provide sufficient medical
evidence to establish that he sustained injury as a result of the November 17, 2011 employment
incident.
Appellant was initially treated by Dr. Castillon. In November 17, 2011 emergency
discharge treatment notes, Dr. Castillon diagnosed back pain, knee pain and elbow pain, but did
not opine as to the cause of appellant’s injuries or mention any employment factors consistent
with such injuries. Pain is generally a description of a symptom and not considered a firm
medical diagnosis.11 The Board finds that Dr. Castillon failed to provide a firm medical
6

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

Bruce Wright, 43 ECAB 284, 296 (1991).

8

SeeJ.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

9

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

James Mack, 43 ECAB 321, 329 (1991).

11

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 10, 2008).

4

diagnosis on any condition. In addition, Dr. Castillon did not provide any opinion on the cause of
appellant’s injuries. The Board has held that 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.12 Thus, the Board finds that Dr. Castillon’s opinion is insufficient to
establish appellant’s claim.
Appellant next submitted an attending physician’s report (Form CA-20) from Dr. Mehl
dated November 29, 2011. In this report, Dr. Mehl diagnosed appellant with musculoskeletal
strain and “low back [illegible].”He checked the box indicating that appellant’s condition was
caused or aggravated by an employment activity and noted that his diagnosis was based on an
examination. Dr. Mehl provided a diagnosis other than pain that of musculoskeletal strain and
opined on the issue of causal relationship. However, the Board has held that a medical report is
of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.13 Dr. Mehl failed to address how
the November 17, 2011 incident physiologically caused or contributed to appellant’s
diagnoses:he merely wrote “intervened in fight” next to the box indicating that appellant’s
condition was caused or aggravated by an employment activity. The Board finds thathis opinion
is of limited probative value on the issue of causal relationship because he does not explain how
the November 17, 2011 employment incident caused appellant’s injuries.14
In support of his request for reconsideration, appellant submitted a report dated April 18,
2012 from Dr. Melonein which he noted that appellant underwent surgery on March 13, 2012 for
treatment of his right thumb carpometacarpal joint arthrosis.Dr. Melone did not opine as to
whether appellant’s condition was work related and did not mention any work-related factors.
Appellant also submitted a consultation note, dated February 6, 2012, allegedly from
Dr. Melone, which was largely illegible and did not contain a legible signature.There was no
legible text on this consultation note indicating that the author opined as to the cause of
appellant’s injury.Furthermore, as noted, the Board has held that 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.15 Dr. Melone did not offer an opinion regarding the cause of
appellant’s condition in his reports.
Appellant also submitted emergency response notes, bills from the Fire Department, City
of New York and New York Downtown Hospital and a prehospital care report describing the
employment incident, each dated November 17, 2011. The Board notes that this evidence does
not meet the standard of rationalized medical evidence because neither the emergency response
notes, bills nor the prehospital care report are the opinions of a physician, based on a complete
12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149, 157 (2006).
13

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009); see
alsoC.B., Docket No. 13-694 (issued May 29, 2013).
14

SeeJ.R., Docket No. 12-1099 (issued November 7, 2012); see alsoDouglas M. McQuaid, 52 ECAB 382 (2001)
(holding that medical reports must be based on a complete and accurate factual and medical background).
15

Supra note 12.

5

factual and medical background of the employee, of reasonable medical certainty and supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.16 Thus, this evidence was of no
probative value on the issue of the medical component of fact of injury.
On appeal, counsel alleges that the medical evidence supported appellant’s claim that his
injuries were causally related to the November 17, 2011 employment incident. He stated that
Dr. Melone’s report clearly established the existence of medical conditions causally related to
appellant’s federal employment and that Dr. Melone’s report clearly contained rationalized
opinion demonstrating a causal relationship between the diagnosed conditions and the
employment incident of November 17, 2011. As previously noted, Dr. Melone’s report did not
contain any opinion regarding the cause of an employee’s condition.Whether an employee
sustained an injury in the performance of duty requires the submission of rationalized medical
opinion evidence.17 Appellant failed to provide sufficient rationalized medical evidence in this
case. Thus, the Board finds that he did not meet his burden of proof to establish that he sustained
injuries causally related to the November 17, 2011 employment incident.
The employing establishment issued a properly completed Form CA-16 to appellant on
November 17, 2011, authorizing provision of office or hospital treatment as medically necessary
for the effects of his injury. The Board notes that where, as in this case, an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, 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.18 The period for which treatment is authorized by a
Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by
OWCP.19 The record is silent as to whether OWCP paid for the cost of appellant’s examination
or treatment for the period noted on the form. On return of the case record, OWCP should review
whether appellant has been reimbursed for any incurred medical expenses.20
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 did not establish that he sustained injuries to his back,
knee and arm on November 17, 2011 in the performance of duty.

16
17

Supra note 9.
Supra note 8.

18

SeeTracy P. Spillane, 54 ECAB 608, 610 n.9 (2003); Elaine M. Kreymborg, 41 ECAB 256, 259 (1989).

19

See 20 C.F.R. § 10.300(c).

20

SeeM.M., Docket No. 11-1544 (issued March 12, 2012); A.A., Docket No. 11-787 (issued November 2, 2011).

6

ORDER
IT IS HEREBY ORDERED THATthe March 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

7