United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Miami, FL, Employer
__________________________________________

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

Docket No. 19-1777
Issued: March 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 1, 2019 appellant filed a timely appeal from a December 18, 2018 merit decision
and a March 18, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted November 2, 2018 employment incident; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 3, 2018 appellant, then a 50-year-old customs and border protection officer,
filed a traumatic injury claim (Form CA-1) alleging that on November 2, 2018 he was involved in
a motor vehicle accident when his government vehicle was struck by a forklift on the left front
wheel while in the performance of duty. He noted that he experienced lower back pain as a result
of the accident. On the reverse side of the claim form the employing establishment contended that
appellant was not injured in the performance of duty.3 Appellant did not stop work.
In a development letter dated November 8, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of medical
evidence needed including a valid medical diagnosis from a qualified physician. OWCP afforded
appellant 30 days to submit the necessary evidence. Appellant did not respond.
By decision dated December 18, 2018, OWCP accepted that the November 2, 2018
employment incident occurred, as alleged, but denied appellant’s claim, finding that he had not
submitted any medical evidence establishing a medical diagnosis in connection with the accepted
employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On February 12, 2019 appellant requested reconsideration and submitted additional
evidence.
In a November 5, 2018 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical treatment from Dr. Keith Gould, an
osteopathic physician, for his lower back pain. In an undated attending physician’s report (Part B
of the Form CA-16), Dr. Gould reported that appellant experienced pain as a result of his work
vehicle being hit by a forklift. He diagnosed cervical sprain and a thoracic lumbar strain.
Dr. Gould checked a box marked “yes” indicating that the diagnosed conditions were caused or
aggravated by the described employment activity. He indicated that appellant was totally disabled
from work from November 2 to 12, 2018 and could resume regular work on November 12, 2018.
In a November 6, 2018 note, an office manager at Valles & Associates Rehabilitation
Services Inc., confirmed that appellant saw Dr. Gould for severe pain in the neck and lower back.
She noted that appellant was referred for physical therapy treatment. The office manager also
related that Dr. Gould recommended that appellant limit his standing activities and refrain from
prolonged walking.
By decision dated March 18, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that the only evidence received
3

The employing establishment also indicated that the injury had been caused by a third party. OWCP subsequently
informed appellant that the third-party aspect of his claim was referred to the Office of the Solicitor in
Washington, DC.

2

in support of the request for reconsideration was the note from the office manager at Valles &
Associates Rehabilitation Services Inc.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6 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.7
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 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 incident identified by the claimant.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted November 2, 2018 employment incident.

4

Supra note 1.

5
R.S., Docket No. 19-1484 (issued January 13, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

L.L., Docket No. 19-1106 (issued October 18, 2019); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

20 C.F.R. § 10.115; M.S., Docket No. 19-1096 (issued November 12, 2019); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.G., Docket No. 19-0904 (issued November 25, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

M.H., Docket No. 19-0162 (issued July 3, 2019); John J. Carlone, 41 ECAB 354 (1989).

10

J.D., Docket No. 19-0382 (issued January 3, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

M.H., Docket No. 18-0873 (issued December 18, 2019); Leslie C. Moore, 52 ECAB 132 (2000).

3

To establish that he sustained a traumatic injury in the performance of duty, appellant must
submit medical evidence that shows a diagnosed medical condition that is causally related to the
accepted employment incident.12 As appellant failed to submit any medical evidence, he has not
established a medical diagnosis in connection with the accepted employment incident and thus has
not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.13
LEGAL PRECEDENT -- ISSUE 2
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation, at any time, on his or her own motion or on application.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.18

12

M.H., id.

13

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
14

5 U.S.C. § 8128(a); see S.V., Docket No. 18-0276 (issued December 23, 2019); W.C., 59 ECAB 372 (2008).

15
20 C.F.R. § 10.606(b)(3); see R.C., Docket No. 19-0696 (issued September 25, 2019); C.N., Docket No. 08-1569
(issued December 9, 2008).
16

Id. at § 10.607(a); see P.R., Docket No. 19-0439 (issued June 25, 2019).

17

Id. at § 10.608(a); see S.V., supra note 14; M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); see P.R., supra note 16; E.R., Docket No. 09-1655 (issued March 18, 2010).

4

ANALYSIS -- ISSUE 2
The Board finds that the case in not in posture regarding whether OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant submitted a November 6, 2018 note
from Valles & Associates Rehabilitation Services Inc. which was received by OWCP on
February 12, 2019. He additionally submitted an undated attending physician’s report (Part B of
the November 5, 2018 Form CA-16) from Dr. Gould, which OWCP also received on
February 12, 2019.
In its March 18, 2019 decision, OWCP specifically stated that only the November 6, 2018
note from Valles & Associates Rehabilitation Services Inc. had been received. In the case of
William A. Couch,19 the Board held that, when adjudicating a claim, OWCP is obligated to
consider all evidence properly submitted by a claimant and received by it before the final decision
is issued. As OWCP did not review all of the evidence received on reconsideration prior to issuing
its March 18, 2019 decision, the Board finds that the case is not in posture for decision.
For this reason, the Board will, therefore, set aside OWCP’s March 18, 2019 decision and
remand the case for OWCP to properly consider all the evidence submitted in support of his request
for reconsideration of the merits of his claim. OWCP shall thereafter issue an appropriate decision
on appellant’s request for reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted November 2, 2018 employment incident. The Board
further finds that this case is not in posture for decision regarding whether OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

19

41 ECAB 548 (1990).

5

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed. The March 18, 2019 decision is set aside and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: March 25, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE NAVY, PUGET
)
SOUND NAVAL SHIPYARD &
)
INTERMEDIATE MAINTENANCE FACILITY, )
Bremerton, WA Employer
)
__________________________________________ )
B.B., Appellant

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

Docket No. 19-0625
Issued: October 2, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 28, 2019 appellant filed a timely appeal from a January 14, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish binaural sensorineural
hearing loss causally related to the accepted factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 11, 2018 appellant, then a 66-year-old retired supervisory environmental engineer,
filed an occupational disease claim (Form CA-2) alleging that noise exposure caused binaural
hearing loss due to factors of his federal employment. He noted that he first became aware of his
condition and realized its relation to his federal employment on August 1, 2011. Appellant retired
from the employing establishment on January 2, 2012.
In an attached checklist for filing federal occupational hearing loss claim, appellant noted
that he did not have a prior history of ear or hearing problems, and that as a hobby he enjoys
carpentry, but wears ear protection while engaging in that activity. In separate attached form titled
“employment history,” he related that the source of the noise at his federal employment included
“waterfront shipboard chippers, grinders, cranes, needle guns, sand blasters, etc.” and that he was
exposed to the noise for eight hours each day plus overtime. Appellant noted that hearing
protection was provided and used.
OWCP also received audiogram results from June 4, 1980 through August 16, 2002, which
were administered as part of the employing establishment’s hearing conservation program. It also
received the results of an April 16, 2018 audiogram.
After further development of the record, OWCP prepared a statement of accepted facts and
referred appellant, along with the relevant medical evidence, to Dr. Edward Treyve, a Boardcertified otolaryngologist, for a second opinion examination.
In a December 6, 2018 report, Dr. Treyve recounted that appellant experienced bilateral
progressive hearing loss over the past three years. He noted appellant’s hearing capacities
gradually diminished, and have disproportionally diminished on his left side. Appellant had
related that it was challenging for him to communicate with background noise and that he
experienced tinnitus which is high-pitched and rare. His medical history included multiple ear
infections when he was a child, and family history of old-age hearing loss. Dr. Treyve reviewed
appellant’s past audiograms and noted that while in 1980 his hearing was normal in both ears, in
2000 a drop was noted in the left ear and in 2002 mild high-frequency hearing loss was noted in
the left ear. He noted that appellant’s audiometry from April 16, 2018 indicated moderately severe
bilateral high-frequency hearing loss.
Appellant indicated that he engages in recreational activities with significant noise
exposure including the use of power tools such as a weed eater, leaf blower, and lawn mower for
yard work. He additionally engages in the infrequent use of shop tools and the very infrequent use
of chainsaws. The report noted that appellant wears ear protection for all of these activities. His
occupational history included building homes using power tools as a carpenter while using ear
protection from 1976 to 1980. Appellant recounted that from 1980 to 1997 he worked on a ship
directing nuclear component testing and was surrounded by continuous noise that included
chipping, cranes, descalers, and needle guns. He stated that he “mostly wore ear protection, but
once in a while did not because he needed to communicate.” From 1998 until 2012 appellant was
an environmental engineer and spent half of his time working on the waterfront surrounded by the
constant noise of motors, pneumatic tools, and cranes.

2

Dr. Treyve’s physical examination of appellant’s ears indicated normal pinna bilaterally
with normal ear canals and tympanic membranes. The report documented an audiometry
performed by an audiologist and signed by Dr. Treyve which revelaed “a bilateral mild to
moderate[-]high-frequency sensorineural loss symmetric with excellent discrimination of 100
[present] bilaterally.” Additionally, appellant’s reflexes on his right were absent and on his
reflexes on his left were diminished.
Dr. Treyve diagnosed late onset asymmetric bilateral sensorineural hearing loss. He
reasoned that because appellant only experienced hearing loss during the second part of his federal
employment when he worked with less noise than in the first part of his federal employment, the
identified federal employment factors did not cause appellant’s hearing loss. Dr. Treyve stated
that it was more likely than not that appellant’s hearing loss was due to presbycusis (age related).
In response to questions by OWCP, Dr. Treyve noted that, while the workplace noise in
appellant’s federal employment may have had the capacity to cause hearing loss, he did not believe
that it caused appellant’s hearing loss. He also noted that the hearing loss appellant sustained since
the beginning of his exposure to his federal employment’s workplace noise was not in excess of
typical predicted age-related hearing loss, and that no other exposures or diseases contributed to
appellant’s hearing loss.
By decision dated January 14, 2019, OWCP denied appellant’s claim, finding that the
medical evidence of record did not establish that his diagnosed late onset asymmetric binaural
sensorineural hearing loss was causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 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. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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

Id.

3

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

(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 identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant ’s
specific employment factor(s). 9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral
sensorineural hearing loss causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted medical records containing an audiometry
report from April 16, 2018 and a series of workplace audiograms from 1980 through 2002. The
April 16, 2018 audiometry report was signed by an audiologist and the series audiograms that
indicated he experienced a statistical threshold shift and was routinely exposed to noise were not
signed by a physician. These documents are of no probative value because audiologists are not
considered to be qualified physicians within the meaning provided by FECA. 10
The two audiograms furnished by appellant that are signed by physicians are of no
probative value to the issue of causal relationship because they offer no opinion on whether his
hearing loss was causally related to the routine noise exposure at his federal employment. 11
OWCP properly referred appellant to Dr. Treyve for a second opinion. Dr. Treyve
conducted a physical examination of appellant and reviewed appellant’s medical and factual
history including past audiograms, occupational history, and recreational history. He diagnosed
late onset asymmetric bilateral sensorineural hearing loss and stated that, because appellant only
experienced hearing loss during the second part of his federal employment when he worked with
less noise than in the first part of his federal employment, Dr. Treyve did not believe that
appellant’s accepted federal employment factors caused his hearing loss. Rather, Dr. Treyve
opined that it was more likely than not that appellant’s hearing loss was age related.

6

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

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

8

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, supra note 6.

9

Id.

10

See H.M., Docket No. 19-0188 (issued April 26, 2019).

11

M.S., Docket No. 19-0189 (issued May 14, 2019).

4

The Board finds that Dr. Treyve’s opinion is based on a proper factual and medical history,
as he reviewed current and previous audiometric and audiogram test results and related his findings
on examination and testing in support of his opinion that appellant’s hearing loss was not due to
the noise in his federal employment. 12 Dr. Treyve’s December 6, 2018 report therefore represents
the weight of the medical evidence and establishes appellant’s hearing loss was not due to exposure
to noise in his federal workplace. 13
As appellant has not submitted rationalized medical evidence establishing hearing loss
related to his accepted federal employment factors, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established binaural sensorineural hearing loss
causally related to the accepted factors of his federal employment.

12

See T.C., Docket No. 17-0872 (issued October 5, 2017).

13

See id.

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ORDER
IT IS HEREBY ORDERED THAT the January 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 2, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Coleman, FL, Employer
__________________________________________

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

Docket No. 12-56
Issued: May 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 5, 2011 appellant filed a timely appeal of the August 22, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a left shoulder injury in the
performance of duty on December 8, 2009, as alleged.
On appeal, appellant contends that he sustained an employment-related left shoulder
injury on December 8, 2009 for which medical treatment is warranted.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 27, 2009 appellant, then a 31-year-old correctional officer, filed a
traumatic injury claim alleging that on December 8, 2009 he tore tendons in his left shoulder
while on monkey bars on a training course at work.
By letter dated July 21, 2011, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit factual and medical evidence,
including a rationalized medical opinion from an attending physician describing a history of
injury and providing dates of examination and treatment, findings, test results, a diagnosis
together with an explanation as to how the December 8, 2009 incident caused or aggravated his
medical condition.
In an August 4, 2011 statement, appellant described the December 8, 2009 incident. He
was bench pressing 300-pound weights with the “SORT” team when a bar slipped out of his
hand. Appellant ignored his pain and went to use an obstacle course. His pain worsened when
he attempted to use monkey bars as he overextended his shoulder to reach a bar. When appellant
swung from a bar, he heard a stretching, popping sound. He tried to jump up and catch the bar to
finish the course but, was unable to do so. Appellant’s injury was witnessed by Edgardo
Reveron, an employee.
In a progress note dated December 29, 2009, Dr. Suresh Kumar, a Board-certified
internist, obtained a history that appellant had left shoulder pain for three weeks following a
weight-lifting session. He experienced right knee pain while lifting weight and squatting.
Dr. Kumar listed findings on physical examination. He advised that appellant’s left shoulder
pain was getting better and there was no evidence of any deformity or functional impairment.
Appellant had right knee pain and no signs of acute inflammation.
In another progress note dated December 29, 2009, Jonathan E. Agront, a registered
nurse, obtained a history that appellant had left shoulder pain for two weeks and sharp right knee
pain for one week. Appellant stated that his pain may be related to lifting weights. Nurse
Agront listed findings on physical examination and advised that his pain was caused by a lifting
movement. Also, on December 29, 2009 Margo L. Jones, a registered nurse, provided, in a
progress note, a history that appellant’s complaint of left shoulder and right knee pain started one
week ago. Screening for post-traumatic stress disorder and depression was negative.
In an August 22, 2011 decision, OWCP denied appellant’s claim. It found that the
evidence established that the December 8, 2009 incident occurred as alleged. OWCP, however,
found that appellant failed to submit medical evidence establishing a diagnosis causally related
to the accepted employment-related incident.
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
2

Id. at §§ 8101-8193.

2

States within the meaning of FECA; that the claim was filed within 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
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 of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
In an August 22, 2011 decision, OWCP accepted as factual that appellant was on monkey
bars on a training course on December 8, 2009 while working as a correctional officer. The
Board finds, however, that the medical evidence of record is insufficient to establish that his left
shoulder condition was caused or aggravated by the December 8, 2009 employment incident.
Dr. Kumar’s progress note found that appellant’s left shoulder pain was improving and
there was no evidence of any deformity or functional impairment. He further found that
appellant had right knee pain with no signs of acute inflammation. The Board has consistently
held that pain is a symptom, not a compensable medical diagnosis10 and a medical report is of
3

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

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra note

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

3.

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

10

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

3

limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.11 Dr. Kumar did not explain how
being on monkey bars would cause or contribute to the claimed left shoulder condition. Lacking
this medical explanation, the Board finds that Dr. Kumar’s progress note is insufficient to
establish appellant’s claim.12
The progress notes of Nurses Agront and Jones have no probative medical value in
establishing appellant’s claim. A nurse is not defined as a physician under FECA.13
The Board finds that there is insufficient rationalized probative medical evidence of
record to establish that appellant sustained a left shoulder injury causally related to the accepted
December 8, 2009 employment incident. Appellant did not meet his burden of proof.
On appeal, appellant contended that he sustained a left shoulder injury causally related to
the December 8, 2009 employment incident for which medical treatment is necessary. For the
reasons stated, the Board finds that he did not submit sufficiently rationalized probative medical
evidence to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a left shoulder
injury in the performance of duty on December 8, 2009, as alleged.

11

T.M., Docket No. 08-0975 (issued February 6, 2009).

12

S.S., 59 ECAB 315, 322 (2008); George Randolph Taylor, 6 ECAB 986, 988 (1954).

13

See 5 U.S.C. § 8101(2); G.G., 58 ECAB 389 (2007).

4

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Maricopa, AZ, Employer
__________________________________________

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

Docket No. 18-0954
Issued: February 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 9, 2018 appellant, through counsel, filed a timely appeal from a March 15, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the March 15, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability on January 27, 2017 causally related to her accepted December 1, 2011 left upper
extremity employment injury; and (2) whether appellant has met her burden of proof to establish
a left rotator cuff tear causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 18, 2011 appellant, then a 40-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging that sometime before December 1, 2011, she suffered left
elbow and shoulder pain due to repetitive upper extremity motions while casing and delivering
mail.
Dr. Douglas E. Parkin, an attending internist Board-certified in pediatrics, treated appellant
for left shoulder complaints beginning on December 20, 2011. He held her off work commencing
March 1, 2012 due to a left rotator cuff tear with acromioclavicular impingement and pain.4
Appellant returned to full-time modified-duty work on March 1, 2012 with no use of the left upper
extremity.
By letter dated February 27, 2012, OWCP accepted that appellant had sustained sprains of
the left rotator cuff, shoulder, and upper arm and assigned the claim OWCP File No. xxxxxx173.
It paid her wage-loss compensation for intermittent work absences from January 26 to
May 4, 2012.
On May 16, 2012 Dr. Peter Seipel, an attending Board-certified orthopedic surgeon,
performed an authorized arthroscopic debridement of a left rotator cuff tendon tear with
arthroscopic subacromial decompression. OWCP paid appellant wage-loss compensation for
intermittent work absences commencing May 17, 2012. Appellant returned to full-time, modifiedduty work on June 2, 2012 and to full duty on July 5, 2012.
On February 3, 2017 appellant filed a notice of recurrence (Form CA-2a) claiming that
sometime before January 27, 2017, repetitive upper extremity motions, while processing and
delivering her mail route in the performance of her federal duties, caused left shoulder pain. She
stopped work from January 20 to 22, 2017, returned to work, and then stopped work again on
February 4, 2017. S.K., appellant’s supervisor, noted that from March 5 to December 10, 2016,
appellant had been detailed to a full-duty position as a postmaster. She resumed full duty as a
letter carrier on January 5, 2017 and had carried mail for approximately three weeks. Appellant
stopped work on February 6, 2017.

4

A March 7, 2012 magnetic resonance imaging (MRI) scan of the left shoulder showed a possible partial thickness
supraspinatus tear, a possible oblique tear within the anterior labrum, a Type 1 acromion with negative anterior
sloping, mild acromioclavicular degenerative disease, and minimal impingement.

2

In a report dated February 6, 2017, Dr. Michael P. Ridge, an attending Board-certified
internist, diagnosed a complete left rotator cuff tear. He limited appellant to light duty with no use
of the left shoulder.
In a letter dated February 15, 2017, L.L., an employing establishment official, controverted
the claim. She noted that from December 10, 2016 to February 3, 2017, appellant had worked
only 17 out of 40 days. L.L. controverted appellant’s claims under File No. xxxxxx137 and
xxxxxx805 in letters dated March 29, May 1, and 9, 2017. She alleged that appellant had provided
an inconsistent history of injury.
By development letters dated March 2 and 17, 2017, OWCP advised appellant of the type
of additional evidence needed to establish her claim for recurrence of disability, including a current
medical report from her attending physician supporting a causal relationship between her accepted
employment injury and her condition on and after January 27, 2017. It afforded her 30 days to
submit the necessary evidence.
In response appellant provided a March 6, 2017 narrative statement. She described
increasing left shoulder pain commencing in early January 2017. Appellant alleged that repetitive
upper extremity motion and heavy lifting while casing and delivering mail had caused a left rotator
cuff tear.
In a telephone memorandum (Form CA-110) dated March 20, 2017, OWCP noted that
appellant requested to withdraw her claim for recurrence of disability and intended to claim a new
occupational injury. Appellant explained in a letter dated March 20, 2017 that she had requested
an occupational disease claim form (Form CA-2) on February 3, 2017, but an employing
establishment official directed her to complete a claim for recurrence of disability (Form CA-2a).
By letter dated March 28, 2017, OWCP notified appellant that to withdraw her claim for
recurrence of disability, she must submit a statement stating that she was “withdrawing the
recurrence claim so it can be deleted.”
On March 27, 2017 appellant filed an occupational disease claim (Form CA-2) alleging
that, sometime prior to January 27, 2017, she sustained a left rotator cuff tear. OWCP assigned
that claim OWCP File No. xxxxxx805.
In an accident report dated March 27, 2017, employing establishment official, S.K.,
contended that appellant’s March 27, 2017 occupational disease claim was a duplicate of her
February 3, 2017 claim for a recurrence of disability.
In reports dated April 10 and 14, 2017, Dr. Ridge diagnosed a complete left rotator cuff
tear. He prescribed medication.
An April 11, 2017 MRI scan of the left shoulder demonstrated moderate distal
supraspinatus and infraspinatus tendinosis without a rotator cuff tear, moderate hypertrophic
acromioclavicular joint osteoarthritis with spur causing mild deformity of the supraspinatus
muscle, and a hyperplastic superior labrum without tear.

3

In a statement dated April 13, 2017, appellant attributed her claimed recurrence of
disability to repetitive left upper extremity motions while casing and delivering mail while in the
performance of duty in January 2017.5
By development letter dated April 21, 2017, OWCP notified appellant of the type of
additional factual and medical evidence needed to establish her occupational disease claim,
including a detailed factual statement describing the mechanism of injury, and a narrative opinion
from her attending physician explaining how and why the identified employment factors would
cause the claimed left shoulder condition. It afforded her 30 days to submit additional evidence.
In response, appellant submitted a report dated April 28, 2017 from Dr. Ridge. Dr. Ridge
noted that appellant worked as a letter carrier and had sustained an occupational shoulder injury
“treated successfully years ago.” He opined that a left rotator cuff tear demonstrated by imaging
studies was “a result of her work.”
In a statement dated April 30, 2017, appellant attributed her left shoulder condition to
repetitive motion of the left upper extremity while casing and delivering mail while in the
performance of her assigned federal job duties over a 15-year period. She remained off work.
OWCP paid appellant wage-loss compensation for intermittent work absences through
May 26, 2017.
Appellant also submitted a report dated June 16, 2017 by Scott McMillan, a physician
assistant.
By decision dated June 28, 2017, issued under File No. xxxxxx805, OWCP accepted that
appellant’s assigned federal work duties required repetitive upper extremity motions. It denied
her occupational disease claim as the medical evidence of record did not establish causal
relationship between the accepted employment factors and her diagnosed left shoulder condition
commencing in January 2017.
By decision dated July 10, 2017, issued under File No. xxxxxx173, OWCP denied
appellant’s claim for a recurrence of disability commencing January 24, 2017 as the medical
evidence of record did not establish that her accepted left shoulder employment injury disabled
her from work for the claimed period.
In a report dated July 12, 2017, Dr. Thomas L. Erickson, an attending Board-certified
orthopedic surgeon, noted appellant’s difficulties with activities of daily living. Appellant
developed left shoulder pain in January 2017 without a specific injury. On examination of the left
upper extremity, Dr. Erickson found limited elevation of the arm, tenderness to palpation of the
acromioclavicular joint and subacromial space, and positive impingement signs. He opined that a
left shoulder MRI scan showed slight spurring of the anterior acromion without rotator cuff
5

In a letter dated June 14, 2017, appellant asserted that she did not wish to withdraw her recurrence claim as the
employing establishment and a union official advised her to file “both ways” and allow OWCP to determine which
form of claim was appropriate. Employing establishment supervisor S.K. responded by letter dated July 10, 2017
asserting that she had not advised appellant to file both a claim for occupational disease and a claim for recurrence of
disability.

4

impingement, significant acromioclavicular joint arthritis, and no visible rotator cuff tears.
Dr. Erickson opined that appellant’s symptoms were “at least to some degree related to her
previous rotator cuff tear” although he was “not sure exactly what caused the recent exacerbation.
Certainly this could be related to her work as a mail carrier which requires repetitive use of the
shoulder.”
On July 24 and 31, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative regarding OWCP’s June 28 and July 10, 2017 decisions.6
At the hearing, held on January 18, 2018, appellant noted that she had not sought treatment
for her left shoulder from her return to full duty in July 2012 to January 2017. She attributed her
left shoulder condition to casing and delivering mail beginning in January 2017. Appellant noted
that she sometimes babysat her three grandchildren and was able to lift a child weighing 15 to 24
pounds with either arm.7 She provided additional medical evidence including an August 15, 2017
report from Mr. McMillan, a physician assistant.
In a letter dated August 30, 2017, Dr. Erickson advised counsel that he could not offer
additional opinion regarding causal relationship.
In a report dated November 28, 2017, Dr. Ridge diagnosed a complete left rotator cuff tear.
He prescribed medication.
By decision dated March 15, 2018, an OWCP hearing representative affirmed OWCP’s
June 28, 2017 decision under File No. xxxxxx805, which denied appellant’s occupational disease
claim, and its July 10, 2017 decision under File No. xxxxxx173, which denied her claim for a
recurrence of disability commencing January 24, 2017. The hearing representative directed
OWCP to double the two claims as they pertained to the same member of the body and crossreferencing of the evidence in both claims was necessary for a complete and accurate history.8
LEGAL PRECEDENT -- ISSUE 1
Section 10.5(x) of OWCP’s regulation provides that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which resulted from a previous injury or illness without an intervening injury
or new exposure to the work environment that caused the illness.

6
On August 30, 2017 appellant claimed a schedule award (Form CA-7) under File No. xxxxxx173 for permanent
impairment of the left upper extremity. By decision dated December 21, 2017, OWCP denied her schedule award
claim as the medical evidence of record did not establish that the accepted left shoulder conditions had attained
maximum medical improvement (MMI). On January 3, 2018 appellant, through counsel, requested a telephonic
hearing before an OWCP hearing representative. Counsel provided a December 13, 2017 impairment rating by
Dr. Mesfin Seyoum, a family practitioner. There is no subsequent decision of record before the Board on the present
appeal regarding appellant’s schedule award claim.

OWCP’s hearing representative noted that the hearing would consider appellant’s claims under both File No.
xxxxxx805 and File No. xxxxxx173.
7

8

OWCP administratively doubled the claims, with File No. xxxxxx173 serving as the master file.

5

When an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.9 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.10 The
physician’s opinion must be based on a complete and accurate factual and medical history and
must also be supported by sound medical reasoning.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability on January 27, 2017 causally related to her accepted December 1, 2011 left upper
extremity employment injury.
None of the physicians of record attributed appellant’s diagnosed left shoulder conditions
to a spontaneous change in medical condition which resulted from the previous injury, without an
intervening injury or new exposure to the work environment.12 Both Dr. Ridge and Dr. Erickson
inferred that appellant’s condition was generally related to her federal employment duties that she
performed in January 2017.
Dr. Ridge opined in an April 28, 2017 report that a diagnosed left rotator cuff tear was “a
result of her work.” Dr. Erickson noted in a report dated July 12, 2017 that appellant’s left
shoulder symptoms were somewhat related to the accepted December 2011 left shoulder injury,
but that her condition as of January 2017 “could be related” to repetitive shoulder motions while
working as a mail carrier.” These opinions were not sufficiently well rationalized to establish that
appellant had a recurrence of disability causally related to her accepted left shoulder conditions
sustained sometime before December 1, 2011.13 Neither Dr. Ridge nor Dr. Erickson indicated that
appellant’s left shoulder condition as diagnosed in January 2017 was a spontaneous recurrence of
the left shoulder conditions sustained on or before January 21, 2012.

9

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapters 2.1500.5
and 2.1500.6 (June 2013).
10

L.C., Docket No. 17-1788 (issued September 19, 2018). See S.S., 59 ECAB 315, 318-19 (2008).

11

L.C., id. S.S., id. at 319.

12

W.H., Docket No. 17-1390 (issued April 23, 2018).

13

L.C., supra note 10.

6

In support of her claim appellant also included reports from a physician assistant.
However, these reports have no probative value as a physician assistant is not considered a
physician as defined under FECA.14
The medical evidence of record therefore does not include bridging evidence to show a
spontaneous worsening of the accepted conditions, or that the newly diagnosed condition occurred
over time as a result of the December 1, 2011 employment-related left shoulder condition.15 The
Board therefore finds that appellant has not met her burden of proof.16
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA17 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.18 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.19
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.20
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical

14

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA). Appellant also provided medical
literature on shoulder conditions.
15

L.C., supra note 10. See M.M., Docket No. 16-1851 (issued January 19, 2018).

16

Id.; H.T., Docket No. 17-0209 (issued February 8, 2018).

17

Supra note 2.

18

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

19

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

20
J.I., Docket No. 18-0286 (issued September 17, 2018); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).

7

opinion evidence supporting such causal relationship.21 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.22
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 employee.23 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 causal
relationship.24
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish a left rotator
cuff tear causally related to the accepted factors of her federal employment.
OWCP accepted that appellant intermittently engaged in repetitive employment activities
as a letter carrier. Appellant alleged that she developed a left rotator cuff tear due to casing and
delivering mail in January 2017. However, OWCP denied her claim because it determined that
she had not submitted a rationalized medical report sufficient to establish a causal relationship
between her diagnosed left shoulder conditions and her federal employment duties.
It is appellant’s burden of proof to establish that newly diagnosed conditions are
employment related. The Board notes that she has explained that she did not seek medical
treatment for her left shoulder condition between July 2012 and January 2017. Therefore, there
was a four-and-a-half year gap in appellant’s medical treatment.
Dr. Ridge, in an April 28, 2017 report, opined that a diagnosed left rotator cuff tear was “a
result of her work.” He did not offer medical reasoning in support of his conclusion. The Board
has held that a report is of limited probative value regarding causal relationship if it does not
contain medical rationale explaining how a given medical condition/disability was related to
employment factors.25 For the reasons set forth above, Dr. Ridge’s report is insufficient to meet
appellant’s burden of proof.
Dr. Erickson, in a report dated July 12, 2017, noted that appellant’s left shoulder symptoms
were partially related to the accepted December 2011 left shoulder injury. He explained that her
left shoulder condition as of January 2017 “could be related” to repetitive shoulder motions while
working as a mail carrier.” The Board finds that Dr. Erickson did not provide adequate medical
rationale to establish causal relationship as his opinion was equivocal in nature. Dr. Erickson’s
21

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

22

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

23

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

24

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

25

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

8

statement on causation failed to provide a sufficient explanation as to the mechanism of injury
pertaining to this occupational disease claim as alleged by appellant, namely, discussing what letter
carrier duties would cause or aggravate her left rotator cuff condition.26 Without explaining how
physiologically the movements involved in any specific employment duties caused or contributed
to appellant’s diagnosed condition and because he couched his opinion with the qualification that
the condition “could be related” to repetitive shoulder motion, Dr. Erickson’s opinion on causal
relationship is equivocal in nature and of limited probative value.27 Thus, Dr. Erickson’s July 12,
2017 report is insufficient to meet appellant’s burden of proof.
On appeal counsel asserts that OWCP adjudicated appellant’s case in an inconsistent
manner. As noted above, OWCP properly denied her claims as she submitted insufficient medical
evidence to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability on January 27, 2017 causally related to her December 1, 2011 left upper extremity
employment injury. The Board further finds that she has not met her burden of proof to establish
a left rotator cuff tear causally related to the accepted factors of her federal employment.

26

J.I., supra note 20; S.W., Docket No. 08-2538 (issued May 21, 2009).

27

J.I., supra note 20. See L.M., Docket No. 14-0973 (issued August 25, 2014).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated March 15, 2018 is affirmed.
Issued: February 26, 2019
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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

Docket Nos. 10-833 & 10-1429
Issued: April 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 27, 2010 appellant, through counsel, filed a timely appeal from an August 5,
2009 decision of the Office of Workers’ Compensation Programs affirming the denial of his
claim.1 The Board assigned Docket No. 10-833. On April 20, 2010 appellant, through counsel,
filed a timely appeal from an April 5, 2010 decision of the Office affirming the termination of his
compensation benefits. The Board assigned Docket No. 10-1429. Pursuant to the Federal
Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decision was issued August 5, 2009, the 180-day computation begins August 6, 2009. One hundred and eighty days
from August 6, 2009 was February 1, 2010. Since using February 3, 2010, the date the appeal was received by the
Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is January 27, 2010 which renders the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish left knee
conditions due to the accepted March 14, 2001 employment injury; and (2) whether the Office
properly terminated appellant’s compensation for wage-loss and medical benefits effective
July 5, 2009 on the grounds that he no longer had any residuals or disability causally related to
his accepted employment-related injuries.
On appeal, counsel contends that the Office erred in terminating appellant’s benefits. He
also contends that the medical evidence established that appellant sustained more than a left knee
sprain, as accepted by the Office.
FACTUAL HISTORY
On March 14, 2001 appellant, then a 46-year-old maintenance mechanic, filed a
traumatic injury claim alleging that on that day he twisted his left knee when he slipped on a
safety chain and fell. The Office accepted the claim for a left knee strain. Appellant was placed
on limited-duty work following the injury and stopped work on August 7, 2002 as the employing
establishment could no longer accommodate his restrictions.3 It placed him on the periodic rolls
for temporary total disability.4
A May 10, 2001 magnetic resonance imaging (MRI) scan noted findings suspicious for a
left knee partial anterior cruciate ligament tear.
In a progress note dated May 11, 2001, Dr. George W. Stockwell, an examining
osteopathic physician, opined that appellant might have a medial meniscus tear as he did not
believe he had an anterior cruciate ligament tear.
Dr. Dennis J. Sullivan, a treating Board-certified orthopedic surgeon, reviewed the MRI
scan and provided physical examination findings. On June 4, 2001 he stated that appellant had a
partial anterior cruciate ligament tear. In a June 4, 2001 report form, Dr. Sullivan diagnosed a
left anterior cruciate ligament tear, noted the injury date of March 14, 2001 and checked that the
condition was employment related.
In an April 12, 2002 report, Dr. Steven G. Johnson, a treating physician, diagnosed left
knee contusion and left leg sciatica in 2002. He noted an employment injury date of March 14,
2001 and checked that the conditions were employment related.
In progress notes dated May 8, 2002, Dr. Sullivan diagnosed left knee patellofemoral
syndrome.
On September 16, 2002 appellant requested his claim be accepted for the diagnosed
conditions of left leg and sciatic nerve pain.
3

The Office referred appellant for rehabilitation services in August 2002.
unsuccessful.
4

Appellant relocated to North Carolina effective February 9, 2007.

2

It closed the file in 2006 as

On February 14, 2003 Dr. Johnson diagnosed left knee patellofemoral syndrome. A
January 12, 2004 MRI scan showed chondromalacia patella of the medial patellar cartilage and
no definite meniscal tear or cruciate ligament injury. On March 24, 2004 Dr. Johnson diagnosed
left knee patellofemoral syndrome with developing arthritis. He reported the history of injury
and that an MRI scan showed a partial anterior cruciate ligament tear and fraying medial
meniscus. Dr. Johnson stated that appellant continued to have left knee instability with clicking
but no giveaway or locking. A physical examination revealed an antalgic gait, medial jointline
tenderness, a negative drawer sign and positive patellofemoral grind.
In a March 17, 2005 report, Dr. Johnson concluded that appellant sustained left knee
extreme valgus injury and prepatella subluxation as a result of his March 14, 2001 employment
injury. He related that an MRI scan showed a partial anterior cruciate ligament tear and fraying
medial meniscus. Physical findings had not changed from the prior March 24, 2004 report.
Dr. Johnson, in a January 26, 2006 report, related that appellant’s symptoms are unchanged
although appellant believes his left knee has gotten worse.
On April 5, 2007 Dr. H.L. Clinton, Jr., a treating physician, noted that appellant sustained
a knee injury on March 14, 2001 while at work and that objective testing was necessary to
determine the extent of his knee injury. A physical examination revealed no localized tenderness
or swelling of the left knee, no ligamentous instablility normal range of motion and moderate
patellofemoral crepitus.
In a February 5, 2008 report, Dr. Surendrapal S. Mac, a second opinion Board-certified
orthopedic surgeon, diagnosed a left knee strain. On physical examination of the left knee, there
was full range of motion, tenderness over the medial and anterior aspect of the knee and no
instability. Dr. Mac related that x-rays taken at the time of his examination showed mild
degenerative knee changes with a mild medial space diminution and no bony injury. He stated
that a review of the prior MRI scans showed no evidence of any significant meniscus or ligament
tear which supported the diagnosis of left knee sprain. Dr. Mac reported that a January 12, 2004
MRI scan showed chondromalacia patella of the medial patellar cartilage. He advised that the
left knee sprain would normally resolve in a few months and that appellant was capable of
performing his date-of-injury job. Dr. Mac concluded that appellant had no permanent
impairment of his left knee as a result of the accepted employment injury.
In a March 13, 2008 supplemental report, Dr. Mac concluded that appellant’s left knee
sprain had resolved. He was unable to determine the exact date the condition had resolved due to
seeing appellant seven years after the injury. Dr. Mac related that the left knee sprain would
have healed and resolved within a few months of the injury. With respect to the diagnosis of
chondromalacia patella, he was unable to determine whether the condition was preexisting or
caused by the injury because his examination of appellant was seven years after the injury.
On April 14, 2008 the Office issued a notice proposing to terminate appellant’s
compensation based upon Dr. Mac’s opinion that his accepted left knee strain had resolved
without continuing disability or residuals.
An April 22, 2008 report from Dr. Brian Rosenberg, a treating physician, was received.
Dr. Rosenberg diagnosed possible internal derangement of the knee. He recommended further

3

testing as appellant might have a new injury or a subtle injury which did not show on his prior
MRI scan.
In a letter dated May 13, 2008, appellant’s counsel contended that Dr. Mac’s report was
insufficient to support the termination of benefits. In addition, he contended that the Office
failed to properly code the accepted conditions as appellant sustained more than a left knee
strain. Also the statement of accepted facts the Office provided Dr. Mac was inaccurate.
On May 21, 2008 Dr. Rosenberg diagnosed a possible subluxation of the patella based on
a review of an MRI scan. He reported the scan showed no acute knee or meniscus injuries.
Dr. Rosenberg attributed appellant’s knee going out to either patella subluxation or “ACL”
laxity.
By decision dated August 1, 2008, the Office finalized the termination of appellant’s
compensation benefits effective August 2, 2008.
On August 12, 2008 appellant’s counsel requested a review of the written record by an
Office hearing representative.
By decision dated January 9, 2009, an Office hearing representative vacated the
August 1, 2008 decision as Dr. Mac’s opinion was insufficiently reasoned. The Office hearing
representative found that further development of the medical record was required on the issue of
whether appellant’s chondromalacia was employment related.
On January 21, 2009 an Office medical adviser reviewed the medical record and
concluded that the continued care by appellant’s treating physician was insufficient to establish
that he sustained a structural defect as a result of the accepted employment injury. He noted that
the complaints of intermittent pain on a 10 out 10 pain scale were inconsistent with the generally
negative imaging studies and physical findings. The Office medical adviser found the medical
evidence insufficient to warrant accepting any additional left leg conditions.
In an April 7, 2009 report, Dr. Robert Miller, a second opinion Board-certified orthopedic
surgeon, reviewed the statement of accepted facts, employment injury history and medical
records and performed a physical examination. The examination revealed normal ambulation, no
noticeable limp, full bilateral knee range of motion, mild bilateral knee patellofemoral crepitus
and no tenderness on medial or lateral patellar facets palpitation. Dr. Miller related that
appellant’s knee examination was essentially normal other than the Grade 1 patellofemoral
crepitus and subjective tenderness on medial palpation. He found no objective evidence of any
current employment-related disability or of the accepted left knee strain. Dr. Miller concluded
that no ligament injury occurred, as there was an absence of any findings on the MRI scans of a
high-grade ligament injury. Repeated findings of a stable knee ligament were documented in the
medical record. With respect to the diagnosis of chondromalacia patella, he stated that this was
dependent on direct surgical or arthroscopic observation of the cartilage, which was not done in
the current case. Dr. Miller noted that it could be inferred by an MRI scan or findings of crepitus
during a physical examination. While a January 12, 2005 MRI scan revealed some medial
patellar facet cartilage intrinsic abnormality and crepitus on examination, he concluded the
“finding is of questionable significance at best.” Dr. Miller explained that the finding of crepitus

4

was present in both appellant’s knees and could be found in a random examination of half the
population. As to the diagnosis of patellofemoral syndrome, he related that, while appellant’s
complaints of mild crepitus, pain and instability were consistent with this diagnosis, his other
complaints of pain on passive knee extension and tenderness at the medial joint line were not
characteristic of chronic retropatellar pain syndrome. Dr. Miller noted that appellant tolerated
long automobile rides with his knee flexed with no difficulty, which patients with retropatellar
pain syndrome were unable to do. He opined that appellant’s accepted left knee strain had
completely resolved without residuals or disability. Dr. Miller noted the diagnosis of mild
chondromalacia patella was possible bilaterally, but there was no medical evidence to support
that it was due to the accepted employment injury.
By decision dated May 11, 2009, the Office denied appellant’s request to expand his
claim to include left chondromalacia patella. It found the report of Dr. Miller to be well
rationalized and constituted the weight of the evidence establishing that his claim should not be
expanded.
On May 11, 2009 the Office issued a notice proposing to terminate appellant’s
compensation benefits. It found the weight of the evidence rested with Dr. Miller’s April 7,
2009 report that his accepted employment injury had resolved with no residuals or disability.
In a letter dated May 18, 2009, appellant’s counsel requested a written review of the
record by an Office hearing representative.
By decision dated July 1, 2009, the Office finalized the termination of appellant’s
compensation effective July 5, 2009.
In a July 8, 2009 letter, appellant’s counsel requested a review of the written record by an
Office hearing representative on the July 1, 2009 termination of his compensation.
By decision dated August 5, 2009, an Office hearing representative affirmed the May 11,
2009 decision denying appellant’s request to accept left chondromalacia patella.
By decision dated April 5, 2010, the Office hearing representative affirmed the
termination of appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.5 To establish a causal relationship between the
condition was well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a casual relationship.6 Causal relationship is a medical issue and the medical
5

Jaja K. Asaramo, 55 ECAB 200 (2004).

6

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

5

evidence required to establish a causal relationship is rationalized medical evidence.7
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the diagnosed condition
and the specific employment factors identified by the claimant.8 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 causal relationship.9
ANALYSIS -- ISSUE 1
The Office accepted that on March 14, 2001 appellant sustained a left knee strain in the
performance of duty. On appeal, appellant’s attorney contends that the Office accept left
chondromalacia patella as a result of the March 14, 2001 employment injury. The Board finds
that appellant did not submit sufficient reasoned medical opinion on causal relationship
establishing additional employment-related conditions.
In a May 11, 2001 progress note, Dr. Stockwell opined that appellant might have a
medical meniscus tear while on July 4, 2001 and May 8, 2002 Dr. Sullivan diagnosed anterior
cruciate ligament and left knee patellofemoral syndrome. Dr. Johnson diagnosed left leg sciatica
in a series of progress notes from 2002 to 2006. On April 5, 2007 Dr. Clinton reported that
additional testing was required to determine the extent of appellant’s left knee injury. On
April 22, 2008 Dr. Rosenberg diagnosed possible left knee derangement. None of the physicians
provided sufficient explanation for how the listed diagnoses of the left knee were due to the
March 14, 2001 left knee sprain. They did not offer any explanation as to how the mechanism of
the March 14, 2001 employment injury, i.e., slipping on a safety chain and falling, was
competent to result in the various diagnoses or resultant disability. The Board has held that
medical opinions not containing rationale on causal relation are of diminished probative value
and are insufficient to meet appellant’s burden of proof.10
The Office referred appellant to Dr. Miller, a second opinion Board-certified orthopedic
surgeon. On April 7, 2010 Dr. Miller concluded that the diagnosis chondromalacia patella was
not appropriate. He noted that no surgery was performed and the objective evidence of record
was not supportive of this diagnosis. While a January 12, 2005 MRI scan implicitly diagnosed
some medial patellar facet cartilage intrinsic abnormality and crepitus on examination, there was
no evidence that a high-grade ligament injury occurred and there were repeated findings of a
stable knee ligament test, as reported by various physicians. Additionally, Dr. Miller pointed out
that chondromalacia of the patella was directly dependent on surgery or arthroscopic
intervention, which had not occurred. He noted that crepitus, which was found in both knees,
was present in approximately half the general population. Dr. Miller concluded that the
condition was not employment related.
While appellant had possible bilateral mild
7

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

8

Phillip L. Barnes, 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

9

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

10

Richard A. Neidert, 57 ECAB 474 (2006); D.U., Docket No. 10-144 (issued July 27, 2010).

6

chondromalacia patella, there was no medical evidence to support causal relationship to the
accepted March 14, 2001 employment injury. Dr. Miller found that the accepted left knee sprain
had completely resolved without residuals or disability.
As noted, it is appellant’s burden to establish a causal relationship between a condition
not accepted by the Office and the accepted employment injury. Appellant failed to provide the
necessary evidence to support his claim.
On appeal, counsel contends that the evidence is sufficient to support the diagnosis of
chondromalacia patella. While Dr. Mac made this diagnosis, he reported that he was unable to
determine whether it was a preexisting condition or resulted from the March 14, 2010
employment injury. The case ultimately resulted in referral to Dr. Miller. Dr. Mac’s report was
insufficient to support appellant’s request for an expansion of his claim.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.11 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.12 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.13
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.14 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.15
ANALYSIS -- ISSUE 2
The Office terminated appellant’s compensation benefits effective July 5, 2009 based on
the report from Dr. Miller.
In an April 7, 2009 report, Dr. Miller, a second opinion Board-certified orthopedic
surgeon, provided a detailed summary of appellant’s history and advised that his left knee strain
from the March 14, 2001 injury at work had resolved. He explained that appellant’s knee
11

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

12

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

13

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988); I.R., Docket No. 09-1229 (issued
February 24, 2010).
14

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
15

Kathryn E. Demarsh, supra note 14; James F. Weikel, 54 ECAB 660 (2003); B.K., Docket No. 08-2002 (issued
June 16, 2009).

7

examination was essentially normal except for the subjective finding of tenderness on palpitation
and patellofemoral crepitus was caused by a low impact event and that the knees were stable and
there were no fractures. Dr. Miller opined that there was no ligament injury due to the March 14,
2001 injury based on the absence of any high-grade ligament injury from a review of medical
record. After reviewing appellant’s records and conducting his own examination, Dr. Miller
determined that his accepted left knee strain had resolved without residuals and without
continued disability due to the work injury. He also advised that there was a possibility of a
diagnosis of chondromalacia patella, which was bilateral. As the condition was bilateral
Dr. Miller concluded that there was no evidence of any causal connection between this condition
and the accepted employment injury.
The Board finds that Dr. Miller’s report represents the weight of the medical evidence
and that the Office properly relied on his report in terminating appellant’s benefits. Dr. Miller’s
opinion is based on proper factual and medical history and his report contained a detailed
summary of this history. He addressed the medical records to make his own examination
findings to reach a reasoned conclusion regarding appellant’s condition.16 Dr. Miller found no
basis on which to attribute any residuals or continued disability to appellant’s accepted injury.
He also found no basis on which to attribute appellant’s nonaccepted condition of
chondromalacia patella to the March 14, 2001 employment injury.17
There is no other medical evidence contemporaneous with the termination of appellant’s
compensation benefits which supports that he had any continuing employment-related condition.
Consequently, the weight of the medical evidence rests with Dr. Miller and establishes that
appellant had no residuals due to his accepted left knee strain.
On appeal, appellant’s counsel asserts that Dr. Miller’s report is unrationalized and based
on an inaccurate statement of accepted facts. Contrary to appellant’s contentions, Dr. Miller
provided a rationalized medical report and explained his conclusion. He found there was no
evidence that the chondromalacia patella condition had been caused or aggravated by the
March 14, 2001 employment injury. Dr. Miller represents the weight of the medical evidence as
he provided a rationalized medical opinion explaining the reasons for his findings.
CONCLUSION
The Board finds appellant did not meet his burden of proof to establish the expansion of
his claim. The Board further finds that the Office met its burden of proof to terminate
appellant’s wage-loss compensation benefits and medical benefits effective July 5, 2009.

16

See Michael S. Mina, 57 ECAB 379 (2006) (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 physician’s opinion are facts, which determine the weight to be
given to each individual report).
17

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted by the Office, the claimant bears the
burden of proof to establish that the condition is causally related to the employment injury through the submission of
rationalized medical evidence); T.M., Docket No. 08-975 (issued February 6, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 5, 2009, in Docket No. 10-833, and April 5, 2010, in
Docket No. 10-1429, are affirmed.
Issued: April 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

9