United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Scranton, PA, Employer
__________________________________________

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

Docket No. 08-1257
Issued: November 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 13, 2007, denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that her
degenerative lumbar disc disease was caused or aggravated by factors of her employment.
FACTUAL HISTORY
On February 7, 2004 appellant, a 49-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that the degenerative disc disease in her lumbar spine was caused or
aggravated by her federal employment. Her work included repetitive bending, lifting, carrying,
loading and unloading heavy objects, walking up and down stairs and getting in and out of the
postal vehicle. She became aware of her condition on February 14, 2003. The record reflects

that appellant stopped work on February 14, 2003 due to an accepted cervical spine condition
under file number xxxxxx081 and has been on the periodic compensation rolls under that claim
since March 2003.1
In a statement dated February 7, 2004, appellant indicated that she first experienced pain
and soreness in her low back and legs in January 2003 and that a magnetic resonance imaging
(MRI) scan showed degeneration changes. She returned to work because the soreness and pain
were not very bad. However, appellant’s back pain became worse and more frequent. She stated
that her neurosurgeon reviewed a January 28, 2004 MRI scan and advised her that the damage to
her low back was caused by her occupation. A copy of the MRI scan report was submitted.
In a February 11, 2004 attending physicians report (Form CA-20), Dr. Pamela Costello, a
neurosurgeon, diagnosed lumbar degenerative disc disease, spondylosis and radiculopathy. She
opined that the repetition of appellant’s daily duties of lifting, bending and carrying heavy
objects of work on a daily basis caused her conditions. Dr. Costello noted that aquatic therapy
for the cervical and lumbar spine had been prescribed.2
In a letter dated March 9, 2004, the Office informed appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit details regarding the
employment duties she believed caused or contributed to her condition, as well as a
comprehensive medical report from a treating physician which provided an opinion as to the
cause of her diagnosed degenerative lumbar spine condition.
In a letter dated March 10, 2004, the Office requested additional information from
Dr. Costello. It noted that appellant reported that she first became aware of her lumbar disc
disease on February 14, 2003 but Dr. Costello did not mention this in her reports of July 1 and
October 10, 2003. The Office requested that Dr. Costello address why the lumbar disc disease
condition was not previously discussed. It also requested a comprehensive medical report, which
contained symptoms, a diagnosis and an opinion with an explanation as to the cause of her
diagnosed degenerative lumbar spine condition. The Office provided Dr. Costello with a copy of
an October 29, 2003 report from Dr. Peter Feinstein, a Board-certified orthopedic surgeon, who
provided a second opinion examination in appellant’s accepted cervical spine condition under
file number xxxxxx081.3 Dr. Costello did not respond.
In a March 18, 2004 statement, appellant described her job duties. She stated that the
pain and soreness in her back and legs had been constant since March 2003 and that a physicians
report would be forthcoming. Appellant submitted duplicative copies of reports previously of
record, together with a July 13, 1987 application for employment; a January 23, 2004 request for
physical and aquatic therapy from Dr. Costello, which contained diagnoses of cervical and
1

File number xxxxxx081 is not presently before the Board.

2

The record also contains treatment notes from Dr. Costello dated July 1 and October 10, 2003.

3

On October 29, 2003 report Dr. Feinstein found, in part, that appellant’s lumbar spine and lower extremities
were grossly intact with no long tract signs that might involve cervical disc disease or any dysfunction in her lower
extremities. Dr. Feinstein opined that appellant did not have any work-related problems of her lumbar spine or
lower extremities.

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lumbar spondylosis and radiculopathy; and copies of physical therapy reports from
January 29, 2004.
By decision dated April 13, 2007, the Office denied the claim on the grounds that the
medical evidence was insufficient to establish that appellant’s degenerative lumbar disc disease
condition was causally related to her work-related actives.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing that 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty, as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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.7
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed degenerative lumbar disc disease
and her federal employment. This burden includes providing medical evidence from a physician

4

5 U.S.C §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

6

Gary J. Watling, 52 ECAB 357 (2001); Victor J. Woodhams, 41 ECAB 345 (1989).

7

Solomon Polen, 51 ECAB 341 (2000).

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who concludes that the disabling condition is causally related to employment factors and
supports that conclusion with sound medical reasoning.8
ANALYSIS
The Office accepted that appellant performed the work duties of a letter carrier as
alleged. However, the medical evidence submitted is insufficient to establish that her
degenerative lumbar disc disease, spondylosis and radiculopathy were caused or aggravated by
these actives.
In a February 11, 2004 report, Dr. Costello diagnosed lumbar degenerative disc disease,
spondylosis and radiculopathy. She attributed appellant’s condition to her work duties of lifting,
bending and carrying heavy objects at work on a daily basis. However, Dr. Costello he did not
provide an explanation regarding causal relationship that addressed how the employment
activities caused or contributed to the diagnosed conditions.9 She did not explain the processes
by which lifting, bending or carrying objects on a daily basis would cause or aggravate any
preexisting degenerative condition of the lumber spine or how this resulted in spondylosis or
appellant’s symptoms of radiculopathy. In a January 23, 2004 referral to physical therapy,
Dr. Costello did not address the causal relationship between the diagnosed conditions and factors
of appellant’s employment.10 She did not provide findings on examination or indicate that her
opinion was based on a complete factual and medical background. For these reasons, the Board
finds that the medical evidence from Dr. Costello is insufficient to establish appellant’s claim.
The remainder of the medical evidence, which includes a January 28, 2004 MRI scan
report of the lumbar spine, fails to provide any opinion on the causal relationship between
appellant’s job duties and her lumbar spine conditions. While appellant also submitted notes and
reports signed by a physical therapist, it is well establish that a physical therapist is not a
“physician” as defined under the Act. This material does not constitute probative medical
evidence.11
Appellant expressed her belief that her alleged back condition resulted from her duties as
a letter carrier. However, the Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship

8

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

9

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
10

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (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).
11

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of the Act 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 Merton J. Sills,
39 ECAB 572, 575 (1988).

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between the two.12 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.13 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed degenerative lumbar disc disease was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2007 Office of Workers’
Compensation Programs decision is affirmed.
Issued: November 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

12

See Joe T. Williams, 44 ECAB 518, 521 (1993).

13

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, MONMOUTH
PROCESSING & DISTRIBUTION CENTER,
Eatontown, NJ, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2552
Issued: July 10, 2009

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 22, 2008 appellant filed a timely appeal from a September 10, 2008 merit
decision of the Office of Workers’ Compensation Programs’ Branch of Hearings and Review
denying his claim. The September 10, 2008 decision also denied his request for a subpoena.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant established that he sustained an injury in the
performance of duty; and (2) whether the Office properly denied appellant’s request for a
subpoena.
FACTUAL HISTORY
On August 6, 2007 appellant, a 48-year-old mail handler, filed an occupational disease
claim (Form CA-2) for chronic obstructive pulmonary disease (COPD). He attributed his

condition to exposure to dust at work. Appellant further alleged that this dust is visible in the air
and is up to ¼ inch thick on the surfaces of equipment and machinery. The employing
establishment controverted his claim, arguing that the alleged factors of employment underlying
his claim were nonexistent and that the agency did not agree with the alleged dust exposure
claim.
Appellant submitted an April 14, 2004 report from Dr. Alicia Daniels, a Board-certified
diagnostic radiologist, who reported findings upon examination. Dr. Daniels diagnosed appellant
with eventration of the right hemidiaphragm. She reported that early changes of diverticulitis
could not be completely excluded.
Appellant submitted an April 14, 2004 report from a Dr. Joseph Triolo, a Board-certified
diagnostic radiologist, who reported that appellant complained of abdominal pain. Dr. Triolo
noted that there was no evidence of bowel obstruction or pneumoperitoneum.
Appellant also submitted a spirometery report dated April 17, 2004.
Appellant submitted a February 22, 2005 report signed by Dr. Mario Arrendondo, who
noted limited inspiratory effort and findings suggestive of a small left pleural effusion.
Additionally, Dr. Arrendondo noted that compressive atelectasis or discoid atelectasis at the left
lung base could not be excluded posteriorly.
In a February 27, 2005 report, signed by Dr. Robert Cranley, a Board-certified diagnostic
radiologist, reported the results from a chest computerized tomography (CT) scan as well as an
ultrasound of the left chest. The ultrasound revealed no fluid collection in the lungs and the CT
scan revealed nothing remarkable.
In a March 8, 2005 note, Dr. Tanveer Ahmad, a Board-certified internist, reported that
appellant was quite perplexed with his continued symptoms of severe dyspnea. He reported that
appellant presented with profound dyspnea of an unclear nature and that pulmonary workup was
apparently unable to explain his symptoms. In a separate report dated March 8, 2005,
Dr. Ahmad reported that an echocardiogram (ECG) revealed a normal right and left ventricle
function with trace tricuspid regurgitation as well as grossly normal cardiac valves.
Appellant
March 15, 2005.

submitted

diagnostic

laboratory

test

results

for

tests

performed

Appellant submitted a March 18, 2005 report from Dr. Antonio Meily, a Board-certified
internist, who proffered no diagnosis but, following diagnostic tests, recommended appellant
follow-up in three days for further evaluation.
On March 18, 2005 appellant saw Dr. Rajeswaran, a Board-certified internist, who
diagnosed appellant with chronic obstructive pulmonary disease.
Appellant also submitted a March 30, 2005 diagnostic report and a March 2, 2005 report
signed by Dr. Albert Ybasco, a Board-certified diagnostic radiologist.

2

By note dated April 5, 2005, Dr. Ahmad reported that appellant has a family history of
heart disease and abnormal ECG and COPD. In a separate report dated April 5, 2005, he
reported that exercise single photon emission computed tomography perfusion imaging revealed
an inferior defect. Dr. Ahmad opined that this was consistent with diaphragmatic attenuation.
By undated note, Dr. Anselm Igbanugo, a Board-certified internist, identified factors of
appellant’s employment that he alleged were responsible for appellant’s COPD. He attributed
appellant’s condition to the fact that appellant works in an environment in which there are no
windows and, until recently, no ventilation other than air conditioning. Dr. Igbanugo asserted
that dust collected on the outside of the mail sorting machine that appellant used and clouds of
dust rose from these machines. He reported that the dust accumulates to ¼ of an inch on these
machines. In another medical note dated August 9, 2005, Dr. Igbanugo treated appellant for
headache, blurred vision and a stuffy nose. He diagnosed appellant with sinus airway
obstruction with low vital capacity. In a subsequent medical treatment note dated April 25,
2007, Dr. Igbanugo treated appellant for sinus pressure, body aches, fever and chills. He
diagnosed appellant with pneumoperitoneum -- SOB and COPD. Dr. Igbanugo asserts that
appellant’s condition is “definitely work related.”
Appellant submitted a spirometry report dated August 10, 2005.
By report dated August 15, 2005, Dr. Murphy diagnosed appellant with paralysis of the
left hemidiaphragm. He reported that the most striking finding was that appellant had orthopnea
when lying down. Dr. Murphy also noted the presence of diminished movement of the left
diaphragm. This diagnosis was modified on September 15, 2005 when Dr. Murphy added
headaches, etiology undetermined.
By report dated August 15, 2005, Dr. Michael Scharf reported results of pulmonary
diagnostic tests. He noted the presence of severe reversible obstructive pulmonary disease and
possible moderate restrictive pulmonary disease. Further, the tests revealed air trapping and
moderate gas transfer defect.
In an August 15, 2005 radiology report, Dr. Howard Naidech, a Board-certified
radiologist, reported that the films revealed that the hemidiaphragm was elevated and
fluoroscopy revealed paradoxical motion of the left hemidiaphragm. He noted that there was
some atelectasis at the left lung base. The left lung fields were clear of infiltrate and mass but
that there was no evidence of failure or pleural fluid. Dr. Naidech opined that the results of this
radiology examination were consistent with paralyzed left diaphragm. He also observed that the
left hemidiaphragm was elevated and moved paradoxically upon rapid breathing.
By report dated September 15, 2005, a Dr. David Murphy who, after noting that
appellant’s left diaphragm was not functioning, proffered a diagnosis of paralysis of the left
hemidiaphragm.
Appellant also submitted a September 15, 2005 report signed by Dr. Naidech, who
opined that, while there was some compression in the lower lobes, he did not believe there was
any cardiopulmonary disease. On September 15, 2005 Dr. Naidech reported results from a CT
scan. The CT scan revealed no pleural fluid or pleural nodularity. Furthermore, although the

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hemidiaphragmatic surfaces were elevated, Dr. Naidech did not believe there was intrinsic
cardiopulmonary disease.
In addition to more duplicate copies of medical evidence already in the record, appellant
submitted a May 11, 2006 medical report signed by Dr. John Nicewicz, a Board-certified
internist with a subspecialty in pulmonary disease, who interpreted the results from a battery of
pulmonary tests, noted a moderate obstructive pattern which improved with a bronchilator.
By medical report dated May 11, 2006, Dr. Stephanie Flicker, a Board-certified
diagnostic radiologist, reported that a fluoroscopy of the left diaphragm revealed that, although
the left hemidiaphragm is slightly diminished, it evidenced improvement since the last
pulmonary study.
Appellant submitted results from diagnostic tests performed May 11, 2006. He also
submitted a series of medical progress reports concerning appointments occurring between
February 21, 2005 and March 5, 2007.
Appellant submitted the results of a pulmonary laboratory test dated May 11, 2006 signed
by Dr. Nicewicz, as well as additional laboratory work performed on March 28, 2005.
By report dated May 11, 2006, Dr. Murphy reviewed results from a battery of test results.
He diagnosed chronic obstructive lung disease, slight leucopenia of undetermined etiology and a
history of headaches. Dr. Murphy reported that appellant’s diaphragmatic function had returned,
but that he had no explanation for appellant’s leucopenia. He also noted that, while appellant’s
oxygen saturation fell during periods of exercise, it did not fall to a point requiring supplemental
oxygen.
Appellant also submitted a series of 12 photos depicting scenes and equipment at the
employing establishment.
Appellant submitted the results from a battery of pulmonary function tests performed on
March 21 and 24, 2006 and reports from diagnostic tests performed February 28, 2006.
In an April 20, 2007 note, Mike Ingram, a coworker, asserted that appellant told him that
his doctors believed that his lung condition was caused by working at the employing
establishment. Appellant submitted a note dated May 12, 2007 signed by another fellow
employee asserting the belief that the dust in the employing establishment had been a major
health problem. He submitted a similar note dated May 5, 2007 from another fellow employee.
Appellant submitted witness statements from several coworkers who alleged that their workplace
is dusty.
Appellant submitted pulmonary laboratory test results from tests conducted
July 19, 2007.
By letter dated September 12, 2007, the Office notified the employing establishment that
it had received and reviewed appellant’s CA-2 and the accompanying evidence. It requested the
employing establishment submit comments from a knowledgeable supervisor concerning the

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accuracy of the statements advanced by appellant relative to this claim and whether the
employing establishment concurred with employee’s allegations.
By letter dated September 12, 2007, the Office notified appellant that the evidence
submitted in support of his claim was insufficient for the Office to determine whether he was
eligible for benefits under the Federal Employees’ Compensation Act. It stated that the evidence
of record did not establish that the alleged conditions were caused or aggravated by workplace
exposure.
Appellant retained counsel who, by letter dated September 25, 2007, requested that the
Office review the evidence of record a second time. He asserted that the issues raised by the
Office in its September 12, 2007 letter were answered by the materials already in evidence.
Counsel asserted that the Office should pay particular attention to the photos depicting the dusty
conditions at appellant’s workplace. He also requested that the employing establishment submit
a list of all environmental testing performed at appellant’s workplace.
Appellant submitted blueprints of the employing establishment’s facility.
By letter dated October 15, 2007, the employing establishment submitted the results of an
indoor air quality study performed October 2007 by the Louis Berger Group, Inc., which
observed dust accumulation on overhead structural steel surfaces and tops of cabinets and
machinery. The Louis Berger Group, Inc. found that dust levels averaged 1/100th of the
recommended Occupational Safety and Health Administration (OSHA) permissible exposure
levels and American Conference of Governmental Industrial Hygienists threshold limit values.
They noted that fans and ventilation systems were functioning during these tests and that facility
maintenance was undertaking high bay cleaning operations in response to employee concerns.
The Berger Group also noted that these cleaning activities did not result in any elevated facility
dust levels being recorded. No noticeable dust accumulation was noticed on the general floor
area, however, underneath machinery areas were noted as having dust accumulation. They
recommended that the USPS continue with the dust mitigation procedures in place and also
address areas under mail handling equipment. The Berger Group also tested for volatile organic
compounds and found that their levels averaged 1/100th of the recommended OSHA permissible
exposure levels and American Conference of Governmental Industrial Hygienists threshold limit
values.
Appellant submitted a report dated December 2, 2007, signed by Dr. Allan P. Friedman, a
Board-certified internist, who noted that a spirometry performed that day revealed severe
reduction of vital capacity. Further, Dr. Friedman noted that the pattern itself shows some small
airway dysfunction but this could have been a pseudorestrictive pattern associated with air
trapping. He opined that appellant’s condition was caused by his exposure to dust in the
workplace. Dr. Friedman noted that, while his condition has some degree of reversibility, he
considered appellant’s condition a permanent one rather than a transient exacerbation, due to the
exposure to dust at the postal service. He reported that dust is a nonspecific irritant and that
some individuals are more prone to irritation and inflammation than others, possibly related to an
underlying otherwise occult asthmatic condition. Dr. Friedman diagnosed appellant with chronic
obstructive pulmonary disease and chronic respiratory failure. He asserted that appellant’s

5

ongoing pulmonary treatment needs, including medications and oxygen, are related to his
exposure.
By decision dated February 14, 2008, the Office denied appellant claim because the
evidence of record was insufficient to establish that he sustained an injury in the performance of
duty as defined by the Act.
Appellant disagreed and, through counsel, requested an oral hearing. Further, by letter
dated April 15, 2008, appellant’s attorney requested that the Office subpoena from the
employing establishment documentation from all studies concerning dust at appellant’s place of
work. Appellant’s attorney also requested the Office subpoena copies of all correspondence,
emails and other communications regarding the dust situation at appellant’s workplace. By letter
dated April 1, 2008, the employing establishment reported to OSHA concerning complaints
made concerning alleged hazards at appellant’s workplace.
Appellant submitted medical notes concerning appointments occurring on March 8, 2007
and June 28, October 26, November 11, 2006 and August 29 and March 8, 2005. These notes
were signed by a physician whose signature is illegible. Appellant submitted additional
treatment notes concerning appointments that occurred in 2005.
A hearing was held June 18, 2008 and appellant and appellant’s attorney were present.
By decision dated September 10, 2008, the Branch of Hearings and Review accepted that
appellant was exposed to environmental dust while in the performance of duty. It also accepted
that appellant established he has COPD. However, the hearing representative found that
appellant did not establish that his COPD was causally related to his federal employment duties.
For this reason, the hearing representative affirmed the Office’s February 14, 2008 decision, but
modified the decision to show that appellant failed to establish causal relationship.
Additionally, the hearing representative denied appellant request for subpoenas, finding
that appellant had produced insufficient evidence to establish the relevance of the employing
establishment’s testimony. Moreover, the hearing representative denied appellant’s subpoena
request because there was no evidence of record establishing that the environmental reports were
inaccurate or that they could not speak for themselves.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act1 has the burden of establishing the essential
elements of his claim, including the fact that an injury was sustained in the performance of duty
as alleged,2 and that any disability and/or specific condition for which compensation is claimed
are causally related to the employment injury.3

1

5 U.S.C. §§ 8101-8193.

2

Joseph W. Kripp, 55 ECAB 121 (2003). See also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. § 10.5(q)
and (ee) (2008) (Occupational disease or Illness and Traumatic injury defined).
3

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

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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.4 The medical
evidence required to establish a causal relationship, generally, is rationalized medical opinion
evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion on how the
established factor of employment caused or contributed to the claimant’s diagnosed condition.
To be of probative value, 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.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant was exposed to environmental dust in the performance
of his federal employment and that appellant has an established medical condition: COPD. The
matter of contention, then, is whether the medical evidence of record establishes that appellant’s
established medical condition, COPD, is causally related to his federal employment. Because the
medical evidence of record lacks a rationalized medical opinion concerning the causal
relationship between appellant’s medical condition and factors of his federal employment, the
Board finds that appellant has not satisfied his burden of proof.
The medical evidence appellant submitted consisted of notes, diagnostic tests and reports
from several physicians. But none of these reports and notes contain a rationalized medical
opinion concerning the required causal relationship and, therefore, are of little probative value.
The Board has consistently held that medical reports lacking a rationale on causal relationship
have little probative value.7 As noted above, a rationalized medical opinion is based on a
complete factual and medical background and is supported by medical rationale.8

4

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

5

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

6

Phillip L. Barnes, 55 ECAB 426 (2004).

7

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
8

Froilan Negron Marrero, 33 ECAB 796 (1982).

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While Dr. Murphy’s report proffered a diagnosis, left hemidiaphragm and a headache of
unknown etiology, he provided no opinion concerning the causal link between factors of
appellant’s federal employment. Similarly, Drs. Daniels, Ahmad, Cranley and Ybasco all
diagnosed a variety of medical conditions, but none of theses diagnoses were supported by a
rationalized medical opinion that causally connected the diagnosed condition(s) to factors of
appellant’s federal employment. Therefore, these opinions are of limited probative value and are
insufficient to satisfy appellant’s burden.
Dr Igbanugo’s August 25, 2007 report diagnosed appellant with pneumoperitoneum -SOB and COPD which he asserted was “definitely work related.” But this diagnosis and opinion
is of limited probative value as it is not contained in a rationalized and well-reasoned opinion
predicated upon a thorough review of appellant’s medical history that causally connects the
diagnosed condition to factors of appellant’s federal employment.
In lieu of a probative medical opinion, Dr. Igbanugo made a nonsubstantive conclusory
statement concerning appellant’s condition and the issue of causation. A physician’s opinion on
the causal relationship between a claimant’s disability and an employment injury is not
dispositive simply because it is rendered by a physician.9 The opinion of a physician supporting
causal relationship must be based on a complete and accurate medical and factual background,
supported with affirmative evidence and explained by medical rationale.10 Because this report,
as well as the rest of the medical evidence from Dr. Igbanugo, are conclusory and fail to provide
any medical rational as to how factors of appellant’s federal employment caused or aggravated
his COPD, they are of no probative value and are insufficient to satisfy appellant’s burden.
Furthermore, Dr. Igbanugo, in an undated note, attempted to identify specific factors of
appellant’s employment that caused appellant’s condition. But this note did not offer findings
upon examination and was not based on a complete medical history such that it demonstrates a
thorough familiarity and understanding of appellant’s condition, course of treatment and
appellant’s federal employment duties.11 Such opinions as this are of limited probative value
and, therefore, are insufficient to satisfy appellant’s burden.
While Dr. Scharf noted the presence of severe reversible obstructive pulmonary disease
and possible moderate restrictive pulmonary disease, this is an equivocal statement. As a matter
of law, such terms as “suspected,” “could,” “may,” “might be,” and “possible” indicate that the
report is equivocal, speculative or conjectural and, therefore, the report is of limited probative

9

Jean Culliton, 47 ECAB 728, 735 (1996).

10

Robert Broom, 55 ECAB 339 (2004); Patricia J. Glenn, 53 ECAB (2001).

11

See Anna C. Leanza, 48 ECAB 115 (1996); Connie Johns, 44 ECAB 560 (1993) (the weight of medical opinion
evidence is determined by the opportunity for and thoroughness of examination, the accuracy and completeness of
the physician’s knowledge of the facts and medical history, the care of analysis manifested, and the medical
rationale expressed in support of the opinion). See also Daniel J. Overfield, 42 ECAB 718 (1991) (medical opinions
which are based on an incomplete or inaccurate factual background are entitled to little probative value in
establishing a claim).

8

value.12 Thus, the evidence from Dr. Scharf is of diminished probative value and, therefore,
insufficient to satisfy appellant’s burden.
Dr. Friedman opined that appellant’s COPD was caused by his exposure to dust in the
workplace. He reasoned that dust is a nonspecific irritant and that some individuals are more
prone to irritation and inflammation than others, possibly related to an underlying otherwise
occult asthmatic condition. But this too is an equivocal statement and, therefore, the report is of
limited probative value.13 Furthermore, Dr. Friedman proffers no rationalized medical opinion
concerning whether, why and how appellant is more prone to dust exposure-related irritation and
inflammation. Thus, this conclusory and equivocal medical report is insufficient to meet
appellant’s burden because Dr. Friedman provided no rationalized medically relevant opinion
that appellant is more prone to dust-related irritation.
Finally, the photographic evidence, a series of 12 photographs, is of no probative value
because the photographs lack any medical explanation addressing the cause of appellant’s COPD
and its link to any implicated factors of appellant’s federal employment. Moreover, the opinions
of layman have no evidentiary value in regard to a medical issue such as the one involved in this
case.14
Neither the fact that a disease or condition becomes apparent during a period of
employment, nor appellant’s belief that the disease or condition is caused or aggravated by the
conditions of employment is insufficient to establish causal relation.15 This is a medical issue.
As there is no rationalized medical evidence of record establishing that appellant’s chronic
obstructive pulmonary disease, or any other diagnosed condition, was caused or aggravated by
his federal employment duties as alleged, the Board finds that he has failed to meet his burden of
proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of the Act provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.16 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).
13

Id.

14

See William E. Enright, 31 ECAB 426 (1980).

15

See Neal C. Evins, 48 ECAB 252 (1996); Ronald M. Cokes, 46 ECAB 967 (1995).

16

5 U.S.C. § 8126(1).

9

by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.17
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.18 Section
10.619(a)(1) of the implementing regulations provide that a claimant may request a subpoena
only as a part of the hearings process and no subpoena will be issued under any other part of the
claims process. To request a subpoena, the requestor must submit the request in writing and send
it to the hearing representative as early as possible, but no later than 60 days (as evidenced by
postmark, electronic marker or other objective date mark) after the date of the original hearing
request.19
The Office hearing representative retains discretion on whether to issue a subpoena. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.20
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.21
ANALYSIS -- ISSUE 2
On March 6, 2008 appellant, through counsel, requested a hearing and by letter dated
April 15, 2008 requested subpoenas to compel production from the employing establishment all
documentation from all studies concerning dust at appellant’s place of work. Appellant, through
his attorney, also requested the Office subpoena copies of all correspondence, emails and other
communications regarding the dust situation at appellant’s workplace. On September 10, 2008
the Office hearing representative denied appellant’s request to subpoena appellant, finding that
appellant had produced insufficient evidence to establish the relevancy of the employing
establishment’s testimony. Moreover, the hearing representative denied appellant’s subpoena
request because there was no evidence of record establishing that the environmental reports were
inaccurate or that they could not speak for themselves.
The Board finds that the hearing representative properly denied appellant’s subpoena
request because appellant had not established the relevancy of the employing establishment’s
testimony and because there was no evidence of record establishing that the environmental
reports were either inaccurate or that they could not speak for themselves. An abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deduction from
17

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

18

Id.

19

20 C.F.R. § 10.619(a)(1).

20

Gregorio E. Conde, supra note 17.

21

Claudio Vazquez, 52 ECAB 496 (2001).

10

established facts.22 The mere showing that the evidence would support a contrary conclusion is
insufficient to prove an abuse of discretion. The Board finds that the hearing representative did
not abuse its discretion in denying appellant’s request for subpoenas.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty. The Board further finds that the Office properly denied her request for a
subpoena.
ORDER
IT IS HEREBY ORDERED THAT September 10, 2008 decision of the Office of
Workers’ Compensation Programs’ Branch of Hearings and Review is affirmed.
Issued: July 10, 2009
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

22

Id.

11


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
D.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT-PATTERSON AIR FORCE BASE, OH,
Employer
___________________________________________

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

Docket No. 11-871
Issued: January 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 23, 2011 appellant, through his attorney, filed a timely appeal from the
February 4, 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.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on April 5, 1988 appellant, then a 39-year-old aircraft electrician,
sustained an acute left shoulder sprain with fibrositis and left biceps tenosynovitis due to slipping
while descending a ladder and hitting his left shoulder on an airplane hatch.2 Appellant stopped
work on April 8, 1988 and returned to work on May 9, 1988. He experienced periodic work
stoppages until being totally disabled from employment beginning on October 25, 1989.
On April 18, 1991 appellant underwent a left rotator cuff repair and, on November 18,
1997, he had a left rotator cuff repair with lateral clavical resection. These procedures were
authorized by OWCP. From May 1994 through January 1998, appellant worked in various
temporary positions in the private sector. He stopped work in January 1998 and has not returned
to any type of employment to date. On August 15, 2000 appellant underwent an authorized left
rotator cuff repair and, on January 6, 2006, he had an authorized debridement for chronic left
rotator cuff tear with bicep tenosynovitis.
In December 2007 appellant began to participate in vocational rehabilitation efforts.
Doris Graessle, appellant’s rehabilitation counselor, formulated a plan under which appellant
would undertake education and training designed to prepare him for work as a computer security
specialist or microcomputer support specialist. Appellant started participating in a training
program at the New Horizons Computer Learning Centers, Ohio Valley. Initial reports prepared
by Ms. Graessle showed that appellant was cooperating with vocational rehabilitation efforts.3
In a progress report covering the period May 6 to June 4, 2009, Ms. Graessle noted
that Amy Matney, an official at the training center, had expressed concerns that appellant’s
attendance in computer training classes had become less regular. Appellant was notified that the
vocational rehabilitation training would not be extended if he did not acquire all the necessary
computer certifications and that he would need a medical excuse for nonattendance at school.4
On June 24, 2009 both appellant and Ms. Graessle signed a Rehabilitation Plan and
Award which was designed to initiate training for job-seeking skills because the training segment
of the vocational rehabilitation program was scheduled to terminate at the end of July 2009.
Ms. Graessle noted that appellant had completed only one certificate of the two needed for the
completion of training. She hoped that, once appellant took and passed the test for the second
certificate, he could also complete the Microsoft Certificate Technology Specialist examination.
In her progress report for the period June 5 through June 30, 2009, Ms. Graessle reported
that appellant had wanted the practice examination to be rescheduled during the previous week.
When the examination was rescheduled, appellant failed to attend it. He stated that he forgot
2

Appellant’s nonwork-related medical history included fibrositis, low back problems, cervical radiculitis and
cervical and lumbar strains with recurrent myofascitis.
3

It was noted that on May 31, 2008 appellant passed a practice test for computer certification and that teachers at
the training center characterized him as an “extremely competent student.”
4

In a June 2, 2009 note, Dr. Donald W. Ames, an attending Board-certified orthopedic surgeon, indicated that
appellant was following up on his left shoulder but that he had not seen appellant in nine months.

2

about the examination due to personal issues on his mind. Appellant advised that he had been
diagnosed with depression and that the treating physician had prescribed anti-depressant
medication. Ms. Graessle stated that she had advised appellant that he might seek mental health
counseling due to inappropriate comments he made to her and the staff at New Horizons
Computer Learning Centers and his negative attitude and demeanor.5 She reported that, a week
later, appellant declined such counseling as he indicated feeling better while on his antidepressant medication. Appellant took a practice examination for certification and scored a 62
percent grade with an 80 percent grade being needed for passing. Ms. Graessle noted that on
June 27, 2009 appellant provided her with a Form OWCP-17 that was inaccurate and incomplete
and which included improper entries regarding the dates he attended training. When appellant
was informed by Ms. Graessle that the form could not be accepted, he telephoned her to discuss
his disagreement with her position on the matter. Ms. Graessle indicated that she then submitted
a Form OWCP-44 obstruction notice.
In a telephone message to OWCP on July 2, 2009, appellant indicated having complaints
about Ms. Graessle. An OWCP examiner returned the telephone call on July 7, 2009, leaving a
message that directed appellant to put his concerns in writing. Appellant was advised that, if he
did not continue cooperating in the vocational rehabilitation efforts, his compensation benefits
would be suspended.
Appellant submitted a slip completed on July 8, 2009 by a medical assistant at Family
Health Connections which indicated that he could not work from July 7 to 10, 2009.
Ms. Graessle telephoned an OWCP rehabilitation specialist on July 10, 2009, noting that
appellant reported that he would not be taking a scheduled certification examination or
participating in job placement due to a vehicular accident and “hives.”
An OWCP claims examiner telephoned appellant on July 10, 2009 and advised him that
there was no medical evidence on file that showed he was disabled from performing the required
certification testing. Appellant was instructed to submit a report regarding the vehicular accident
he sustained and to continue cooperating with the mandatory rehabilitation program by taking
the testing needed for the completion of training and the acquisition of the computer
certification.6 He submitted a July 10, 2009 slip in which Dr. Patrick Jonas, an attending family
practitioner, indicated that he could not work from July 10 to 16, 2009.
By letter dated July 14, 2009, OWCP advised appellant of its determination that he had
failed to participate in vocational rehabilitation efforts. Such nonparticipation included his
failure to take certification testing required to complete his computer training. Appellant was
informed that the submitted evidence failed to provide a history of his vehicular accident and did
not provide rationale as to why he was disabled from class attendance. OWCP further advised
that he had been rated and trained to perform the job duties of a computer security specialist and
a microcomputer support specialist and that, but for his obstruction, he would have successfully
completed training for these positions. It informed appellant that an individual who refuses or
impedes a vocational rehabilitation effort without good cause after testing has been accomplished
5

Ms. Graessle indicated that appellant accused her of being a liar.

6

Appellant later submitted a police report of the July 7, 2009 accident.

3

will have his compensation reduced based on what would have been his wage-earning capacity
had the training been successfully completed. OWCP directed him to make a good faith effort to
participate in the rehabilitation effort within 30 days or, if he believed he had good cause for not
participating in the effort, to provide reasons and supporting evidence of such good cause within
30 days. It stated that if these instructions were not followed within 30 days action would be
taken to reduce appellant’s compensation.
Factual evidence submitted by appellant consisted of a six-page critique of his
relationship with Ms. Graessle. Appellant indicated that he had second thoughts about the
“computer field” due to “the lack of need and the number of layoffs in the computer
programming field.” He claimed that Ms. Graessle yelled at him and threatened to cut off his
compensation benefits. Ms. Graessle betrayed his “confidence” on “two things,” and talked to
him in a “voice sounds kind and understanding until even the smallest item does not go her
way.” Appellant indicated that he had no complaints about Ms. Graessle when he first began
undergoing vocational rehabilitation. Ms. Graessle asserted that during the latter part of his
training he experienced unbearable pain in his left shoulder attributed to “barometric pressure
and/or a cold front” and indicated that the prior April “was a month that had storms most every
other day,” that he made it to school whenever he was able and that he “would stick with it as
long as it was bearable.”
Appellant submitted medical evidence in support of his claim that he could not continue
with vocational rehabilitation efforts. In a July 15, 2009 note, Dr. Ames discussed appellant’s
July 7, 2009 vehicular accident. Subjective pain complaints were noted and Dr. Ames indicated
that appellant reported missing school due to pain. Dr. Ames diagnosed sprain/strain of the
rotator cuff, pain in shoulder joint and diabetes mellitus and treated appellant with a left shoulder
injection. No discussion of appellant’s vocational rehabilitation program or inability to
participate in his schooling was provided. In a July 21, 2009 note, Dr. Jonas stated, “[Motor
vehicle accident], multiple injuries, no class/learning encounters until August 7, 2009.” In an
August 4, 2009 note, he disabled appellant from work through September 1, 2009. On
August 17, 2009 Dr. Ames discussed appellant’s ongoing subjective pain complaints. He opined
that new magnetic resonance imaging (MRI) testing revealed “no new injury seen.” Dr. Ames
recommended physical therapy and advised appellant to follow up as needed.
By decision dated August 24, 2009, OWCP reduced appellant’s compensation under 5
U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts. Appellant’s compensation would be based on the difference
between his pay rate as determined for compensation purposes and what his wage-earning
capacity would have been if he had cooperated with vocational rehabilitation efforts, i.e., his
wage-earning capacity as a computer security specialist. OWCP discussed appellant’s missing
of classes and failure to take a computer certification test and found that these actions were not
excused by his medical condition or any other reason.
Appellant submitted a September 4, 2009 office note in which Dr. Ames opined that
appellant was unable to work due to pain exacerbated by his July 7, 2009 vehicular accident.
Dr. Ames noted a prior physician’s opinion regarding further surgery but he provided no opinion
regarding whether he believed appellant needed this surgery. He recommended that appellant
follow up as needed.

4

In November 2009 appellant began to visit Dr. Michael Herbenick, a Board-certified
orthopedic surgeon. Narrative reports of November 12, 2009, February 11, April 13 and June 9,
2010 offered no discussion of appellant’s vocational rehabilitation program or inability to
participate in his schooling. These reports discussed further possible surgical intervention.
In November 2009 OWCP received a formal request for left shoulder surgery. As part of
the process in determining whether this surgery should be authorized, all medical evidence of
record was forwarded to an OWCP medical adviser for review. The purpose of the review by the
OWCP medical adviser was to aide in determining whether the requested surgical procedure was
warranted and medically necessary. On July 20, 2010 an OWCP medical adviser indicated that
some form of joint reconstruction surgery for appellant’s left shoulder was necessary, but he did
not provide any opinion on the state of appellant’s ability to function in mid 2009. On
August 20, 2010 appellant requested reconsideration of the August 24, 2009 decision.
In a February 4, 2011 decision, OWCP affirmed its August 24, 2009 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits.7 Section 8113(b) of FECA
provides that if an individual, without good cause, fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of FECA, OWCP, “after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of the individual in
accordance with what would probably have been his [or her] wage-earning capacity in the absence
of the failure,” until the individual in good faith complies with the direction of OWCP.8
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP
will take when an employee without good cause fails or refuses to apply for, undergo, participate
in or continue to participate in a vocational rehabilitation effort when so directed. Section
10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, OWCP will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. OWCP will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with OWCP nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the
direction of OWCP.”9

7

Betty F. Wade, 37 ECAB 556, 565 (1986).

8

5 U.S.C. § 8113(b).

9

20 C.F.R. § 10.519(a).

5

ANALYSIS
The Board finds that OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.
The record reflects that appellant obstructed vocational rehabilitation efforts by
repeatedly missing training classes designed to qualify him to work in the computer field and by
refusing to take computer certification tests required for him to work in that field. In particular,
appellant refused to take a certification test in July 2009 which would have allowed him to
complete his training program and start a job search.
Appellant was provided an opportunity to explain his failure to participate in vocational
rehabilitation efforts. He indicated that he had second thoughts about the “computer field” due
to “the lack of need and the number of layoffs in the computer programming field.” The Board
notes that claimants are rated as being able to perform certain positions based on past experience,
training and job availability. Appellant’s concerns about the computer field would not justify his
failure to cooperate with rehabilitation efforts. He noted various complaints about his
rehabilitation counselor, Ms. Graessle, indicating among other things that she yelled at him and
threatened to cut off his compensation benefits. The Board notes, however, that appellant’s
complaints in this regard were vague and unsubstantiated.
Appellant claimed that a medical condition prevented him from participating in
vocational rehabilitation efforts, but he did not submit probative medical evidence supporting
this contention. In particular, he asserted that the effects of a July 7, 2009 vehicular accident
prevented him from engaging in vocational rehabilitation efforts. The record contains a number
of medical reports, dated beginning in early July 2009, indicating that appellant was disabled
from work for various periods. Several attending physicians, including Dr. Ames, a Boardcertified orthopedic surgeon, reported findings on physical examination and indicated that
appellant reported increased symptoms after July 7, 2009. However, none of these physicians
provided a rationalized opinion, supported by specific findings, clearly showing that appellant
was disabled from all activity or that his medical condition prevented him from participating in
vocational rehabilitation efforts, including attending classes or taking tests.10 Moreover, the
Board notes that these medical reports do not show a significant change in appellant’s objective
medical condition after his vehicular accident. Therefore, appellant’s refusal to participate in
rehabilitation efforts was not justified for medical reasons.
A review of the record indicates that appellant was offered repeated opportunities to
complete the agreed upon vocational rehabilitation plan. With respect to the taking of the
necessary computer certification test, he was provided with a number of opportunities to take the
test. There is no evidence that appellant’s failure to fully participate in the rehabilitation
10

For example, in a July 21, 2009 note, Dr. Jonas, an attending Board-certified family practitioner stated, “[Motor
vehicle accident], multiple injuries, no class/learning encounters until August 7, 2009.” However, this note does not
contain any objective findings showing why appellant’s condition rendered him unable to attend classes or engage in
other rehabilitation efforts. Rather, Dr. Jonas’ opinion appears to have been based on appellant’s subjective
complaints.

6

program was based on good cause.11 For these reasons, OWCP properly reduced appellant’s
compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts. It noted appellant’s successful
training efforts up until his refusal to continue cooperation and properly concluded that, but for
his obstruction, he would have been able to earn wages as a computer security specialist.
Therefore, it properly adjusted his compensation based on the wages of this position.
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 OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 27, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See Michael D. Snay, 45 ECAB 403, 410-12 (1994).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE ARMY, FORT
RUCKER AVIATION CENTER,
Fort Rucker, AL, Employer
__________________________________________

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

Docket No. 14-321
Issued: August 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 26, 2013 appellant filed a timely appeal from an October 11, 2013 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 in this case is whether appellant met her burden of proof to establish a
traumatic injury in the performance of duty on August 1, 2013.
FACTUAL HISTORY
On August 13, 2013 appellant, then a 54-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging an allergic reaction as a result of exposure to air
1

5 U.S.C. § 8101 et seq.

freshener that had been sprayed in her workplace area on August 1, 2013. She identified the
brand of air freshener as Lysol Neutra Air Sanitizing Spray and listed its active ingredients.
Appellant’s supervisor checked a box indicating that appellant had been injured in the
performance of duty.
In support of her claim, appellant submitted hospital discharge notes dated
August 2, 2013.
On August 28, 2013 OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit a comprehensive medical report
from an attending physician including dates of examination and treatment, the history and date of
injury given to her by the physician, a detailed description of findings, results of all x-ray and
laboratory tests, a diagnosis and clinical course of treatment and an opinion based on medical
explanation as to how the claimed work incident caused or aggravated her claimed injury.
By letter dated August 28, 2013, Dr. Mark H. Kalenian, Board-certified in allergy and
immunology, stated that appellant had recently visited an emergency room due to exposure to an
aerosol fragrance spray causing bronchospasm or an asthma-like attack. He noted that she had a
history of fragrance allergy, acid reflux and likely chemical asthma. Dr. Kalenian explained that
appellant’s pulmonary function showed no reversibility indicative of inflammatory asthma and
that, because of this observation, he thought it was likely that she had bronchospasm secondary
to a chemical-type asthma affecting lungs as well as skin. He listed her current medications for
allergy and respiratory problems and recommended that the employing establishment use
Occupational Safety and Health Administration-approved chemicals and cleaning agents, as well
as fragrance-free products, to accommodate her condition. Dr. Kalenian stated that, because his
practice was not occupational medicine and could not test for airborne chemicals, he
recommended that appellant be transferred for further care to a certified occupational health
clinic.
In a statement dated August 29, 2013, appellant noted that her acid reflux was related to
H-Pylori, which was treated by antibiotics and submitted unsigned medical records regarding
this diagnosis and treatment.
In the “attending physician’s report” section of a Form CA-16 dated September 9, 2013, a
person with an illegible signature checked a box indicating that appellant’s bronchospasm due to
an inhalation injury was caused or aggravated by employment activity. The employing
establishment’s page of the CA-16 form was not present in the case record.
Appellant submitted an incomplete letter from St. Vincent’s Occupational Health Clinics
dated September 9, 2013. The letter contained no closing or signature from a physician.
In a patient visit form dated September 9, 2013, Dr. Michael L. Cloyd, Board-certified in
preventative medicine, noted that appellant had described her injury as an allergic reaction to a
cleaning material resulting in chest and lung pain.
By letter dated September 15, 2013, Dr. Kalenian described appellant’s history of injury
and course of treatment and diagnosed her with a chemical-type asthma and fragrance sensitivity.
He noted that she first reacted to a chemical on October 1, 2012, when cleaning contractors came
2

to her building and she noticed a burning sensation while using the commode. Subsequently,
appellant was unable to use the commode without a burning sensation. Initially, she was felt to
have allergic contact dermatitis due to cleaning chemical exposure. Appellant was given an
Epi-Pen and it was recommended that her employing establishment use a peroxide-only
fragrance-free cleaner. On March 13, 2013 she noted a hive-type reaction to a bottle of lotion in
her purse, as well as a possible fragrance from one of her many household cleaners. Appellant
was urged to change to unscented detergent and cleaning products. A review of material safety
data sheets of cleaning agents used at the employing establishment found that two cleaning
agents, Clean on the Go and Go Tribase, contained fragrance. On a visit of August 8, 2013
Dr. Kalenian noted that, one week prior, appellant had a bronchospasm after an air ventilation
system was being worked on and that a coworker had sprayed a can of aerosol in the work area,
which had bothered her. Appellant stated that she ended up in the emergency room. A
spirometry test in Dr. Kalenian’s office on August 9, 2013 calculating her FEV1/FVC ratio,
showed an FEV1 of 1.94 or 90 percent predicted prealbuterol and 1.91 liters or 89 percent
post-albuterol, for a -2 percent change in the large airway and a 15 percent increase in the small
airway, with no reversibility. On that date, her diagnoses were listed as chemical asthma, acid
reflux and fragrance allergy. Dr. Kalenian stated that appellant was felt to have fragrance
sensitivity with respiratory and skin contact components. He explained that, while the
spirometry did not show improvement after albuterol, it can remain unchanged if someone does
not have chronic inflammatory asthma, but rather chemical asthma. Patch testing was negative,
but this looks for delayed allergies and her reactions were immediate. Dr. Kalenian
recommended that appellant work in a fragrance and chemical-free work environment. He noted
that materials used in fragrance are not required to be disclosed on labels, making it often
difficult to identify the ingredient or product responsible for the sensitivity.
By decision dated October 11, 2013, OWCP denied appellant’s claim for compensation.
It found that the medical evidence of record was insufficient to establish that her diagnosed
conditions were causally related to the incident of August 1, 2013. OWCP noted that the
evidence it had reviewed in support of appellant’s claim included the following: a letter from
Dr. Kalenian, from Alabama Asthma & Allergy, P.C., dated August 28, 2013; a request for
change of address dated September 3, 2013; a one page letter from St. Vincent’s OHC, with no
closing, dated September 9, 2013; a patient visit form signed by Dr. Cloyd, dated September 9,
2013; Part B of an attending physician’s report dated September 9, 2013; and a three-page letter
from Dr. Kalenian, dated September 15, 2013.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 and/or specific condition for which compensation is claimed are causally related to the

2

Id.

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
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.5
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.6 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.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 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
compensable employment factors.11 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.12

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

4

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3 n.5.

6

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 3 n.5.
8

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila,
57 ECAB 642, 649 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

12

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

4

ANALYSIS
OWCP accepted that the employment incident of August 1, 2013 occurred. The issue is
whether appellant’s chemical-type asthma and fragrance sensitivity caused or was aggravated by
the August 1, 2013 employment incident. The Board finds that she did not meet her burden of
proof to establish a causal relationship between her conditions and the incident.
In a letter dated September 15, 2013, Dr. Kalenian described appellant’s history of injury
and course of treatment and diagnosed her with a chemical-type asthma and fragrance sensitivity.
He described her employment exposure to fragrance-containing cleaning products in the
workplace and recommended that she work in a fragrance and chemical-free work environment.
Dr. Kalenian explained that, on a visit of August 8, 2013, he noted that one week prior appellant
had a bronchospasm after an air ventilation system was being worked on and that a coworker had
sprayed a can of aerosol in the work area, which had bothered her. Appellant stated that she
ended up in the emergency room. A spirometry test in Dr. Kalenian’s office on August 9, 2013
calculating her FEV1/FVC ratio, showed an FEV1 of 1.94 or 90 percent predicted prealbuterol
and 1.91 liters or 89 percent post-albuterol, for a -2 percent change in the large airway and a
15 percent increase in the small airway, with no reversibility. On that date, appellant’s diagnoses
were listed as chemical asthma, acid reflux and fragrance allergy. Dr. Kalenian stated that she
was felt to have fragrance sensitivity with respiratory and skin contact components.
The Board finds that Dr. Kalenian’s report is not sufficient to meet appellant’s burden of
proof. While Dr. Kalenian provided an accurate history of injury and diagnosed her with
chemical-type asthma and fragrance sensitivity, as well as offering the medical opinion that she
ought to work in a fragrance and chemical-free work environment, he did not provide the
necessary medical reasoning to explain how the symptom of bronchospasm on August 1, 2013
established that the diagnosed conditions were due to the accepted exposure to fragrance. The
Board has held that generally a spasm is a symptom, not a diagnosis of a specific condition.13
Without some medical explanation of how the accepted exposure caused or aggravated
appellant’s diagnosed condition, this report does not contain the necessary medical rationale to
establish appellant’s claim. Dr. Kalenian’s letter of August 28, 2013 similarly lacks rationalized
medical explanation of his opinion that he thought it was likely that she had bronchospasm
secondary to a chemical-type asthma affecting lungs as well as skin.
In a patient visit form dated September 9, 2013, Dr. Cloyd noted that appellant had
described her injury as an allergic reaction to a cleaning material resulting in chest and lung pain.
He offered neither diagnoses nor an opinion regarding causal relationship. 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.14 The mere fact that a disease or condition manifests
itself during a period of employment or the claimant’s belief that the disease or condition was
caused or aggravated by employment factors or incidents is insufficient to establish causal
13

See also generally spasm is a symptom, E.B., Docket No. 13-1705 (January 8, 2014); M.P. Docket No 11-762
(issued October 5, 2011); see Gordon C. Muncy, 38 ECAB 607 (1987) for the proposition that bronchospasm is a
symptom.
14

See Michael E. Smith, 50 ECAB at 316 n.8 (1999).

5

relationship.15
compensation.

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

Appellant submitted documents that were illegibly signed or did not contain signatures,
such that the author could not be determined. Consequently, these documents are of no
probative value on the issue of causal relationship and do not establish her traumatic injury
claim, as it cannot be discerned whether a physician signed or authored the documents.16
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to an August 1, 2013 employment
incident, she has failed to meet her burden of proof to establish a claim.
The Board notes that appellant submitted evidence after the issuance of the October 11,
2013 decision. The Board lacks jurisdiction to review evidence for the first time on appeal.17
Appellant may submit this or any new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
chemical-type asthma and fragrance sensitivity was caused or aggravated by an August 1, 2013
employment incident.

15

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997); Charles E. Evans, 48 ECAB 692, 693 (1997).

16

See also Sheila A. Johnson, 46 ECAB 323, 327 (1994); see Merton J. Sills, 39 ECAB 572, 575 (1988).

17

20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the October 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Apple Valley, CA, Employer
__________________________________________

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

Docket No. 09-1143
Issued: December 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2009 appellant timely appealed the February 20, 2009 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(e) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant is entitled to compensation for temporary total disability
beginning June 16, 2008.

FACTUAL HISTORY
Appellant, a 47-year-old distribution clerk, has an accepted claim for lumbar strain,
which arose on April 29, 2008.1 She stopped work the day of her injury and received
continuation of pay through June 13, 2008. On June 27, 2008 appellant filed a claim (Form
CA-7) for temporary total disability beginning June 16, 2008.
Dr. Rajiv Puri, a Board-certified orthopedic surgeon, treated appellant on June 2, 2008.2
He noted a history of a recent fall at work on April 29, 2008. Dr. Puri’s clinical examination
revealed “hurt” lower back and bilateral hips. He also noted tenderness in the thoracic and
lumbar spine. Dr. Puri diagnosed thoracic sprain and advised that appellant was temporarily
totally disabled until her next scheduled examination on June 23, 2008. He also referred
appellant for magnetic resonance imaging (MRI) scans of the thoracic and lumbar spines.
When Dr. Puri next saw appellant on June 23, 2008 he noted that she was very tender
with marked limitation of motion. He also noted that a recent MRI scan of the thoracic spine
was unremarkable. Dr. Puri diagnosed lumbar sprain and recommended physical therapy and
medication. He continued to find appellant temporarily totally disabled pending further
evaluation.
In a July 14, 2008 progress report, Dr. Puri noted that appellant still complained of
muscle spasm and pain in her low back. He also noted that she had a postural imbalance due to
muscle spasm. There was no reported leg pain, but Dr. Puri noted diminished range of motion in
the thoracic and lumbar spine at the extremes. He diagnosed lumbar sprain and advised that
appellant required medication for pain and physical therapy, including postural exercises.
Dr. Puri indicated that appellant could return to part-time, modified duty on August 4, 2008 after
she had a couple weeks of physical therapy.
Appellant returned to full-time, limited-duty work on August 4, 2008.
In a decision dated August 8, 2008, the Office denied appellant’s claim for temporary
total disability beginning June 16, 2008. It found that Dr. Puri’s treatment records were
insufficient to establish temporary total disability for the claimed period.
The employing establishment sent Dr. Puri a letter on August 12, 2008 inquiring about
appellant’s employment-related condition. Dr. Puri was asked to provide a work-related
diagnosis. The letter also asked if there were any ongoing residuals, and if so, when was
appellant expected to recover. Dr. Puri was also asked to provide work restrictions if applicable.
1

Appellant indicated that she was sore after throwing mail and posting payments. She was in the restroom at
work when she reached for a toilet seat cover and felt a sharp pain in her back. Appellant then fell to her knees,
striking her elbows on the toilet before coming to rest on the bathroom stall floor. She was treated in the emergency
room on April 29, 2008 and received a diagnosis of lumbar strain. On May 2, 2008 appellant was diagnosed with
cervicothoracic, lumbosacral and bilateral hip strains and advised to remain off work until she was reevaluated by an
orthopedic specialist. X-rays of the hips, pelvis and lumbar spine obtained on May 2, 2008 were all negative.
2

Dr. Puri previously treated appellant beginning in 1999 for an employment-related injury to her shoulders
(xxxxxx238). He also treated appellant for a 2007 employment injury to her neck and right shoulder (xxxxxx631).

2

He responded on August 28, 2007, noting a diagnosis of herniated lumbar disc. Dr. Puri also
noted that appellant’s residuals had not yet resolved and as to her expected recovery date, he
responded that he would know better after reviewing the results of appellant’s lumbar MRI scan.
A September 7, 2008 lumbar MRI scan revealed a minimal broad-based protrusion at
L2-3, without significant central canal or neural foramina stenosis.
Appellant requested a hearing regarding the Office’s August 8, 2008 decision. The
hearing was held on December 4, 2008.
In a post-hearing the Office received a November 19, 2008 report from Dr. Puri who
indicated that appellant had been under his care for quite some time for her work-related injuries.
Dr. Puri further indicated that appellant saw him on June 2, 2008 for a new work-related injury
to her low back, which she sustained on April 29, 2008 when she fell while at work. He
explained that he had evaluated appellant for her recent low back injury, including referrals for
x-rays and MRI scans. Dr. Puri noted that he had also prescribed pain medication and placed
appellant on temporary total disability starting June 2, 2008. He further stated that, after
appellant felt better with treatment, she eventually returned to work on August 4, 2008. Dr. Puri
concluded that, based on a review of his records, appellant was temporarily totally disabled from
June 2 until August 4, 2008 because of her back injury.
By decision dated February 20, 2009, the hearing representative affirmed the Office’s
August 8, 2008 decision.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of her claim, including
that the medical condition for which compensation is claimed is causally related to the
employment injury.3 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.4 The evidence submitted must be reliable,
probative and substantial.5
ANALYSIS
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature and the Office is not a disinterested arbiter. The claimant has the burden to establish
entitlement to compensation, however, the Office shares responsibility in the development of the
evidence to see that justice is done.6 The Office has accepted that appellant sustained lumbar
strain as a result of a fall at work on April 29, 2008. The issue is whether appellant was disabled
after June 16, 2008 due to this injury. Dr. Puri, appellant’s treating physician continued to find
3

20 C.F.R. § 10.115(e) (2008); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

4

20 C.F.R. § 10.115(f).

5

Id. at § 10.115.

6

William J. Cantrell, 34 ECAB 1223 (1983).

3

appellant disabled until August 4, 2008, based upon her examination findings, which he
described as tenderness in the thoracic and lumbar spine, with limitation of motion. While
Dr. Puri’s various treatment records and reports are insufficient to discharge appellant’s burden
of proving that the claimed disability is causally related to her federal employment, his opinion is
sufficient to require further development of the case record by the Office.7
On remand, the Office should refer appellant to an appropriate specialist, along with the
case record and a statement of accepted facts. Its referral physician should provide an evaluation
and a rationalized medical opinion on whether appellant’s lumbar disc herniation is employment
related and whether she was totally disabled on or after June 16, 2008 as a consequence of her
April 29, 2008 employment injury. After such development of the case record as the Office
deems necessary, a de novo decision shall by issued.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: December 4, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-348
Issued: April 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 26, 2012 appellant, through counsel, filed a timely appeal from a June 1,
2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying
appellant’s request for reconsideration.
The final merit decision of record is dated
November 7, 2011. There is no merit decision within 180 days of November 26, 2012, the date
appellant filed his appeal with the Board. Therefore, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that evidence submitted in support of appellant’s March 5,
2012 request for reconsideration was sufficient to warrant a merit review.
1

5 U.S.C. §§ 8101 et seq.

FACTUAL HISTORY
On August 9, 2010 appellant, then a 60-year-old mail handler on modified duty, filed an
occupational disease claim (Form CA-2) claiming that he sustained bilateral carpal tunnel
syndrome in the performance of duty on or before May 27, 2010. He attributed the condition to
repetitive lifting and carrying trays of mail and pushing postal containers.2
Appellant submitted April 29, 2010 emergency room reports regarding chest pain.
May 27, 2010 electromyography (EMG) and nerve conduction velocity (NCV) studies showed
mild bilateral carpal tunnel syndrome.
In an August 25, 2010 letter, OWCP advised appellant of the additional evidence needed
to establish his claim, including a detailed factual statement describing the employment factors
alleged to have caused the claimed condition and a medical report from his attending physician
explaining how and why those work factors would cause bilateral carpal tunnel syndrome. It
afforded appellant 30 days in which to submit such evidence. Appellant did not respond to
OWCP’s August 25, 2010 letter prior to November 15, 2010.
By decision dated November 15, 2010, OWCP denied appellant’s claim on the grounds
that fact of injury was not established. It found that appellant submitted insufficient factual
evidence to establish that the identified work factors occurred as alleged. OWCP further found
that the medical evidence was insufficient to establish causal relationship.
In a December 29, 2010 letter, counsel requested reconsideration, asserting that new
medical reports were sufficient to meet appellant’s burden of proof. In a May 5, 2010 report,
Dr. William Beatie, an attending Board-certified orthopedic surgeon, related appellant’s account
of an April 29, 2010 occupational left shoulder injury. He noted that May 27, 2010
electromyography (EMG) studies showed mild bilateral carpal tunnel syndrome. On June 3,
2010 Dr. Beatie opined that appellant’s mild bilateral carpal tunnel syndrome was related to the
April 29, 2010 left shoulder injury.
In a January 20, 2011 report, Dr. Mark Allen, an attending orthopedic surgeon, diagnosed
“[p]ost-traumatic carpal tunnel syndrome” resulting from “repetitive use of the upper extremities
and repetitive trauma.”
By decision dated April 6, 2011, OWCP denied modification on the grounds that the
additional evidence submitted was insufficient to meet appellant’s burden of proof. It found that
Dr. Beatie’s and Dr. Allen’s reports did not contain medical rationale explaining how and why
repetitive upper extremity motions at work would cause the claimed bilateral carpal tunnel
syndrome. OWCP further found that appellant failed to provide the factual information
requested in its August 25, 2010 development letter.

2

The employing establishment controverted the claim, asserting that OWCP denied appellant’s claim for
traumatic bilateral carpal syndrome sustained on April 29, 2010 under File No. xxxxxx564. File No. xxxxxx564 is
not before the Board on the present appeal.

2

In an August 16, 2011 letter, counsel requested reconsideration. He enclosed appellant’s
August 3, 2011 response to OWCP’s August 25, 2010 development letter, in which appellant
contended that supervisors disregarded his work restrictions, leading to neck, shoulder, wrist and
back pain. Appellant asserted that he had no hobbies or other nonoccupational activities
involving repetitive upper extremity movements.
By decision dated November 7, 2011, OWCP found that appellant had established that
his duties as a modified mail handler required repetitive upper extremity motions. It denied the
claim on the grounds that the new evidence submitted was insufficient to establish causal
relationship. OWCP found that Dr. Beatie and Dr. Allen did not explain why the accepted work
factors would cause bilateral carpal tunnel syndrome.
In a March 5, 2012 letter, counsel requested reconsideration. He asserted that the
medical evidence was sufficient to establish that appellant sustained bilateral carpal tunnel
syndrome in the performance of duty. Counsel included a February 16, 2012 letter from
Dr. Allen, stating in its entirety that appellant’s “carpal tunnel syndrome [was] a result of
repetitive use of both hands while working as a mail handler for the [employing establishment].”
By decision dated June 1, 2012, OWCP denied reconsideration on the grounds that the
evidence submitted in support of counsel’s March 5, 2012 request was irrelevant to the critical
issue of causal relationship. It found that Dr. Allen’s February 16, 2012 report did not contain
medical rationale addressing the cause of the diagnosed carpal tunnel syndrome.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.4 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 He or she need only
submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

3

OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
OWCP issued a November 7, 2011 decision finding that appellant established repetitive
upper extremity use as factual but that the medical evidence did not support that those work
factors caused claimed bilateral carpal tunnel syndrome. Counsel requested reconsideration on
March 5, 2012, asserting that new medical evidence warranted a merit review.
As noted above, the Board does not have jurisdiction over the November 7, 2011 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his March 5, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law or advance a new and relevant legal
argument. He asserted that a February 16, 2012 letter from Dr. Allen, an attending orthopedic
surgeon, was sufficient to establish causal relationship.
Dr. Allen’s February 16, 2012 letter consists of a single sentence, stating that appellant’s
carpal tunnel syndrome resulted from repetitive hand motions while working as a mail handler.
This statement is repetitive of his January 20, 2011 opinion that appellant’s carpal tunnel
syndrome was due to repetitive upper extremity use. OWCP considered and rejected Dr. Allen’s
January 20, 2011 report in its April 6, 2011 merit decision. The Board has held that evidence
which is duplicative or cumulative in nature is insufficient to warrant reopening a claim for merit
review.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that evidence submitted in support of his March 5, 2012
request for reconsideration was sufficient to warrant a merit review. As stated, Dr. Allen’s
February 16, 2012 report was cumulative of his prior opinion and therefore insufficient to
warrant reopening the case on its merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

8

Annette Louise, 54 ECAB 783 (2003).

9

Denis M. Dupor, 51 ECAB 482 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2012 is affirmed.
Issued: April 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5