United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, PORTLAND
PERFORMANCE CLUSTER, Portland, OR,
Employer
__________________________________________

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

Docket No. 12-627
Issued: August 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On January 26, 2012 appellant filed a timely appeal from the December 5, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning her entitlement
to wage-loss compensation after January 20, 2011. 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.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation effective January 20, 2011 on the grounds that she had no disability due
to her work injuries after that date; and (2) whether appellant met her burden of proof, after the
January 20, 2011 termination of her wage-loss compensation, to establish that she had disability
after January 20, 2011 due to her work injuries.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 10, 2008 appellant, then a 47-year-old rural carrier associate, filed an
occupational disease claim alleging that she sustained injury to her arms and hands due to a fall
at work on November 24, 2006 and the repetitive use of her hands at work overtime. OWCP
accepted that she sustained bilateral carpal tunnel syndrome and basilar arthritis of the
carpometacarpal joint of her right hand. On May 16, 2008 appellant underwent OWCPauthorized exploration and decompression of her right median nerve. She has been off work
since her surgery.
In a January 4, 2010 report, Dr. Chris Jackson, an attending Board-certified surgeon,
stated that appellant had extremely mild carpal tunnel syndrome bilaterally and that the objective
findings did not match her subjective response. He indicated that he would not recommend any
additional surgery and noted that there was significant psychological overlay in her ongoing
disability.
Due to the limited medical evidence in the record from attending physicians in the prior
year, OWCP referred appellant in October 2010 to Dr. Aleksander Curcin, a Board-certified
orthopedic surgeon, for an examination and opinion on her continuing work-related residuals.
In an October 22, 2010 report, Dr. Curcin detailed appellant’s medical history and noted
that she complained of pain in the base of her right thumb and numbness, paresthesias and
dysesthesias in her right hand. He indicated that electrodiagnostic studies and multiple x-ray
studies did not support any objective pathologic findings. Dr. Curcin noted that, upon
examination, appellant avoided the use of the right hand, including declining to shake hands with
the right hand. Range of motion of the wrists revealed pronation and supination to 90 degrees
and palmar flexion to 30 degrees bilaterally. Dorsiflexion was to 60 degrees on the left and 40
degrees on the right. Dr. Curcin indicated that appellant had a well healed, almost imperceptible
scar in the right wrist consistent with carpal tunnel release. He stated that she had two-point
discrimination of six millimeters in the left median nerve, greater than eight millimeters in the
left ulnar nerve and greater than eight millimeters in the right median and ulnar nerves.
Dr. Curcin stated, “I see no reason why [appellant] would be restricted in work[-]related
activities aside for symptomatic complaints.”
Dr. Curcin completed a Form OWCP-5c (work capacity evaluation) on October 22, 2010
listing various work restrictions which he indicated were “primarily based on symptomatic
complaints.”
In a November 17, 2010 letter, Dr. Curcin indicated that he had been asked to clarify his
October 22, 2010 Form OWCP-5c. He stated:
“At the time of my initial evaluation, the form was completed, taking into account
the extensive subjective complaints that [appellant] presented with. The workers’
compensation carrier has requested that the form be completed again, based
simply on objective findings.

2

“Based on my objective findings and objective findings of diagnostic studies, the
form has been completed today and will be sent back to the U.S. Department of
Labor.”
On November 17, 2010 Dr. Curcin completed a new Form OWCP-5c and noted that
“based on objective findings and diagnostic studies,” “the claimant has no limitations.”
In a December 13, 2010 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation on the grounds that she ceased to have disability due to her work
injuries.2 It indicated that the termination was based on the opinion of Dr. Curcin.
In a January 20, 2011 decision, OWCP terminated appellant’s wage-loss compensation
effective January 20, 2011 on the grounds that she had no disability due to her work injuries after
that date.
Appellant submitted a June 6, 2011 report in which Dr. Paul Puziss, an attending
Board-certified orthopedic surgeon, indicated that she clearly had chronic impairment post right
carpal tunnel release with objective findings of loss of right wrist motion particularly and
diminished right grip and pinch strength compared to the nondominant left side. There was also
mild atrophy of the right dominant forearm. Dr. Puziss stated that appellant’s subjective
complaints were borne out by objective findings with respect to strength and likely her pain. He
noted that she could not return to her regular occupation or any other occupation requiring any
grasping of the right hand or repetitive usage of the right wrist.
OWCP determined that there was a conflict in the medical opinion between Dr. Puziss
and Dr. Curcin on the issue of whether appellant continued to have residuals of her employment
injury. In order to resolve the conflict, it referred appellant, pursuant to section 8123(a) of
FECA, to Dr. Mark R. Leadbetter, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion on the matter.3
In a November 17, 2011 report, Dr. Leadbetter discussed appellant’s medical history,
including findings on examination and diagnostic testing. He noted that she primarily
complained of constant pain in the volar aspect of the right wrist, right thumb, right second digit
and right third digit. Appellant complained of left-sided symptoms that were episodic.
Dr. Leadbetter noted that postoperative nerve conduction studies had shown improvement with
regard to the nerve conduction studies of appellant’s right wrist and hands. He diagnosed
bilateral median nerve neuropathy as seen on nerve conduction studies, status post right carpal
tunnel release and degenerative joint disease of the first carpometacarpal joint of the right hand
as diagnosed by x-ray findings. Dr. Leadbetter stated that appellant had ongoing, marked
complaints of right upper extremity and right hand pain, for which he had no reasonable medical
diagnosis. Upon physical examination, muscle strength testing of the right upper extremity,
particularly in the right hand and right wrist, was nonphysiologic in nature. Two-point
discrimination testing of all digits of the right hand exceeded 15 millimeters, a finding which was
2

OWCP advised appellant that she would continue to be entitled to medical benefits related to her work injuries.

3

See supra note 1 and accompanying text.

3

nonphysiologic. Dr. Leadbetter stated his belief that the decreased range of motion in appellant’s
right wrist was based on an unwillingness to perform the range of motion of the right wrist and
stated that this circumstance could not be explained by any work-related condition. He
determined that she was not suffering from residuals of any work-related conditions or accepted
surgery. Dr. Leadbetter stated that appellant was capable of performing the job duties and
requirements that would be required of a rural carrier associate.
In a December 5, 2011 decision, OWCP found that appellant did not meet her burden of
proof, after the January 20, 2011 termination of her wage-loss compensation, to establish that she
had disability after January 20, 2011 due to her work injuries. It indicated that the
well-rationalized opinion of Dr. Leadbetter, the impartial medical specialist, showed that
appellant did not have work-related disability after January 20, 2011.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.4 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective January 20, 2011 on the grounds that she had no disability due to her
work injuries after that date.7 OWCP properly found that the weight of the medical evidence
with respect to appellant’s continuing work-related disability was represented by the thorough,
well-rationalized opinion of Dr. Curcin, a Board-certified orthopedic surgeon, who served as an
OWCP referral physician. The October 22 and November 17, 2010 reports of Dr. Curcin
established that appellant had no disability due to her accepted employment injury after
January 20, 2011.
In an October 22, 2010 report, Dr. Curcin detailed appellant’s medical history and noted
that she complained of pain in the base of her right thumb and numbness, paresthesias and
dysesthesias in her right hand. He indicated that electrodiagnostic studies and multiple x-ray
studies did not support any objective pathologic findings. Dr. Curcin reported findings for range
of motion of the wrists and for two-point discrimination testing of both arms and concluded, “I
see no reason why [appellant] would be restricted in work-related activities aside for
4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and basilar arthritis of the
carpometacarpal joint of her right hand. On May 16, 2008 appellant underwent OWCP-authorized exploration and
decompression of her right median nerve.

4

symptomatic complaints.” He initially completed a form report in which he listed work
restrictions which were “primarily based on symptomatic complaints.”
However, on
November 17, 2010, Dr. Curcin clarified that he would provide an opinion on appellant’s
work-related disability based only on objective findings, rather than on subjective findings. He
then completed a new work restrictions form report in which he noted that “based on objective
findings and diagnostic studies, the claimant has no limitations.”
The Board has carefully reviewed the opinion of Dr. Curcin and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Curcin provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.8 He provided medical rationale for
his opinion by explaining that there were no objective findings to show that appellant had
disability due to her work injuries. Prior to the termination of compensation, appellant did not
submit any medical evidence showing that she sustained disability after January 20, 2011 due to
her work injuries and OWCP properly terminated her compensation effective January 20, 2011.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative and substantial
evidence that he or she had an employment-related disability which continued after termination
of compensation benefits.9
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”10 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.11 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.12

8

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

9

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

10

5 U.S.C. § 8123(a).

11

William C. Bush, 40 ECAB 1064, 1075 (1989).

12

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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ANALYSIS -- ISSUE 2
For the reasons described above, OWCP properly terminated appellant’s compensation
effective January 20, 2011 based on the opinion of Dr. Curcin. After this proper termination, the
burden shifted to her to establish that she was entitled to compensation after that date.
After the January 20, 2011 termination, appellant submitted a June 6, 2011 report of
Dr. Puziss, an attending Board-certified orthopedic surgeon, and OWCP properly determined
that there was a conflict in the medical opinion between Dr. Puziss and Dr. Curcin, OWCP’s
referral physician, on the issue of whether she continued to have residuals of her employment
injury.13 In order to resolve the conflict, OWCP properly referred her, pursuant to section
8123(a) of FECA, to Dr. Leadbetter, a Board-certified orthopedic surgeon, for an impartial
medical examination and an opinion on the matter.14
The Board finds that the weight of the medical evidence regarding appellant’s disability
after January 20, 2011 rests with the well-rationalized opinion of Dr. Leadbetter. The
November 17, 2011 report of Dr. Leadbetter shows that appellant did not have work-related
disability after January 20, 2011.
In his November 17, 2011 report, in response to the questions posed by OWCP,
Dr. Leadbetter listed the accepted diagnosed conditions of bilateral median nerve neuropathy as
seen on nerve conduction studies, status post right carpal tunnel release and degenerative joint
disease of the first carpometacarpal joint of the right hand as diagnosed by x-ray findings. He
noted, however, that appellant had ongoing, marked complaints of right upper extremity and
right hand pain for which he had no reasonable medical diagnosis. On examination, muscle
strength testing of the right arm, particularly in the right hand and right wrist, was
nonphysiologic in nature.
The results of two-point discrimination testing also were
nonphysiologic and he believed that appellant self-limited her right wrist motion. Dr. Leadbetter
determined that appellant was not suffering from residuals of any work-related conditions or
accepted surgery. He stated that she was capable of performing the job duties and requirements
that would be required of a rural carrier associate.
Appellant did not meet her burden of proof to show that she had work-related disability
after January 29, 2011 and OWCP properly denied her claim for wage-loss compensation after
that date.15

13

Dr. Puziss indicated that appellant clearly had chronic impairment post right carpal tunnel release with
objective findings of loss of right wrist motion particularly and diminished right grip and pinch strength compared to
the nondominant left side. He noted that she could not return to her regular occupation or any other occupation
requiring any grasping of the right hand or repetitive usage of the right wrist.
14

See supra notes 10 and 11.

15

On appeal, appellant suggested that the opinion of Dr. Puziss established her claim. However, Dr. Puziss’
opinion only created a conflict in the medical evidence which was resolved by the opinion of Dr. Leadbetter.

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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 met its burden of proof to terminate appellant’s wage-loss
compensation effective January 20, 2011. The Board further finds that appellant did not meet
her burden of proof to establish, after the January 20, 2011 termination of her wage-loss
compensation, that she had disability after January 20, 2011 due to her work injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stony Brook, NY, Employer
__________________________________________

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

Docket No. 09-738
Issued: November 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from an October 30, 2008 decision of
the Office of Workers’ Compensation Programs terminating his compensation benefits. 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 the Office properly terminated appellant’s wage-loss compensation
benefits effective October 30, 2008 on the grounds that he no longer had a work-related
disability.
On appeal, appellant, through his attorney, asserts that the termination decision is
contrary to the medical evidence as the accepted right rotator cuff injury had not resolved.
FACTUAL HISTORY
The Office accepted that on August 14, 2006 appellant, then a 43-year-old customer
service supervisor, sustained an aggravation of the right rotator cuff when he tried to catch a
falling oversized pallet. He attempted a return to light-duty work on August 21 and September 9,

2006, stopped again on September 9, 2006 and did not return. Appellant received wage-loss
compensation beginning on October 14, 2006.
In an August 14, 2006 report, Dr. Michael A. Lee, an attending Board-certified internist,
diagnosed a right shoulder strain due to the incident that day. He found tenderness at the right
acromioclavicular joint, with limited adduction, extension and elevation.
On August 15, 2006 Dr. Glenn A. Teplitz, an attending Board-certified orthopedic
surgeon, noted appellant’s history of a massive right rotator cuff tear with debridement and
attempted prior surgical repair on January 5, 2006. He stated that he could not distinguish
between the effects of the August 14, 2006 injury and the preexisting condition. In an
August 23, 2006 report, Dr. Mark G. Grossman, an attending Board-certified orthopedic surgeon,
who performed the January 2006 surgery, diagnosed a “[r]ight massive rotator cuff tear status
post debridement.” He explained that there was “too much atrophy and soft tissue damage” to
have performed fixation in January 2006. Appellant’s prognosis was “guarded as he has a
chronically torn irreparable rotator cuff tear.”
Appellant was then followed by Dr. Philip L. Schrank, an attending Board-certified
orthopedic surgeon. In reports from September 7 through November 2006, Dr. Schrank opined
that the August 14, 2006 injury severely exacerbated the preexisting right shoulder condition,
causing limitation of motion and pain. Physical therapy and medication did not improve his
symptoms.
On December 1, 2006 Dr. Schrank performed a right shoulder arthroscopy, rotator cuff
repair with anchor fixation, Pegasus patch graft, revision of subacromial decompression, distal
clavicle excision and arthroscopic lateral debridement.1 He submitted progress reports through
January 2007 finding improved right shoulder mobility. Appellant participated in physical
therapy through November 2007.
On May 31, 2007 the Office obtained a second opinion from Dr. Isaac Cohen, a Boardcertified orthopedic surgeon, who reviewed the medical record and statement of accepted facts.
On examination, Dr. Cohen found significantly restricted right shoulder motion. He diagnosed
status post right shoulder arthroscopy. Dr. Cohen opined that appellant’s “injury was preexisting
and exacerbated by the accepted injury of August 14, 2006. He noted that the underlying right
shoulder condition had not resolved. Dr. Cohen found appellant able to work four hours a day
with restrictions.
In reports from July 10 to October 3, 2007, Dr. Schrank opined that appellant had reached
maximum medical improvement, with permanent weakness and restricted motion in the right
shoulder. He found appellant totally disabled for work.
The Office found a conflict of medical opinion between Dr. Schrank, for appellant, and
Dr. Cohen, for the government, regarding whether appellant remained totally disabled for work
due to the accepted injury. To resolve the conflict, the Office referred appellant, the medical
record and a statement of accepted facts to Dr. Bradley L White, a Board-certified orthopedic
1

The Office authorized the surgical procedure.

2

surgeon. In a December 3, 2007 report, Dr. White reviewed the medical record and statement of
accepted facts. On examination, he found restricted elevation and external rotation and
supraspinatus abduction strength at 4/5. Dr. White diagnosed a “[r]esolved temporary
exacerbation of preexisting massive rotator cuff tear of right shoulder, previously deemed
irreparable, now status post arthroscopic patch graft rotator cuff repair.” He opined that the
August 14, 2006 exacerbation had resolved as the tear had been surgically repaired in
December 2006. Dr. White found appellant able to perform full-time duty with a limitation
against overhead work, pulling, pushing or lifting more than 20 pounds with his right upper
extremity. These restrictions were “entirely due to the preexisting disability” and not the
August 14, 2006 exacerbation.
By notice dated July 2, 2008, the Office advised appellant that it proposed to terminate
his wage-loss and medical compensation benefits, based on Dr. White’s opinion that the
accepted right rotator cuff tear had ceased without residuals.
In a July 28, 2008 letter, appellant, through his attorney, asserted that the proposed
termination was contrary to the medical evidence of file. Counsel also submitted an August 21,
2008 brief asserting that the Office should have accepted right rotator cuff tears and other
conditions, not only an aggravation of the right rotator cuff. He provided an April 1, 2008 report
from Dr. Schrank stating that the August 14, 2006 injury exacerbated the preexisting condition,
causing limited mobility, pain, weakness and a permanent disability. Dr. Schrank opined that
appellant would need further medical treatment and possible arthroplasty.2
By decision dated October 30, 2008, the Office terminated appellant’s wage-loss and
medical compensation benefits effective that day on the grounds that the accepted injury had
ceased without residuals. It accorded the weight of the medical evidence to Dr. White, finding
his report thorough and well rationalized. The Office found that Dr. Schrank did not provide
medical rationale distinguishing between the preexisting rotator cuff tear and the August 14,
2006 injury in causing appellant’s ongoing right shoulder condition. Therefore, Dr. Schrank’s
April 1, 2008 report was insufficient to create a conflict with Dr. White.
LEGAL PRECEDENT
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.3 Having determined that an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.4
Section 8123 of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
2

In a decision dated September 4, 2008, the Office approved an attorney’s fee. Appellant did not appeal this
decision.
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

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physician of the employee, the Secretary shall appoint a third physician, who shall make an
examination.5 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.6
ANALYSIS
The Office accepted that appellant sustained an aggravation of the right rotator cuff on
August 14, 2006. He received compensation for total disability beginning in October 2006.
Dr. Schrank, an attending Board-certified orthopedic surgeon, performed a right rotator cuff
repair on December 1, 2006. He found appellant totally disabled for work. Dr. Cohen, a Boardcertified orthopedic surgeon and second opinion physician, opined on May 31, 2007 that
appellant could work four hours a day and that the rotator cuff had been repaired successfully.
The Office found a conflict of medical opinion between Dr. Schrank and Dr. Cohen.
The Act, at 5 U.S.C. § 8123, states that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination. In accordance with 5 U.S.C.
§ 8123, to resolve the conflict, the Office obtained an impartial medical evaluation from
Dr. White, a Board-certified orthopedic surgeon. On December 3, 2007 Dr. White reviewed the
medical record and statement of accepted facts and performed a thorough examination. He
opined that the torn right rotator cuff had been resolved by the December 2006 patch graft repair.
Therefore, there were no residuals of the August 14, 2006 strain. Dr. White opined that appellant
could work full-time limited duty. The Office then terminated appellant’s wage-loss
compensation, based on Dr. White’s opinion.
When the Office refers a case to an impartial medical specialist for the purpose of
resolving a conflict in medical opinion, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper medical and factual background, must be given special
weight.7 Dr. White’s opinion is based on a complete and accurate background as he reviewed
the medical record and statement of accepted facts. He also provided detailed clinical findings
from his thorough physical examination. Dr. White explained that appellant had no residuals of
the accepted right rotator cuff tear. The Board finds that Dr. White’s opinion is sufficient to
represent the weight of the medical evidence as it is detailed, well rationalized and based on a
complete factual and medical history.8 In contrast, Dr. Schrank’s reports did not contain
sufficient rationale supporting a causal relationship between appellant’s ongoing right shoulder
condition and the accepted August 14, 2006 injury as distinguished from the underlying,
preexisting condition. Thus, the Board finds that the Office met its burden of proof in
terminating appellant’s compensation benefits.
5

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

6

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

7

Id.

8

Conard Hightower, 54 ECAB 796 (2003).

4

On appeal, appellant’s attorney contends that the Office’s termination of appellant’s
compensation was contrary to the medical evidence. Counsel asserted that Dr. Schrank’s reports
established that the accepted aggravation had not ceased. However, as set forth above,
Dr. White’s report as impartial medical specialist represents the weight of the medical evidence
in this case. Therefore, the Office’s termination was proper under the law and facts of this case.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective October 30, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 30, 2008 is affirmed.
Issued: November 12, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, ROSEBURG POST
OFFICE, Roseburg, OR, Employer
__________________________________________

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Appearances:
Kelley Craig, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1293
Issued: May 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 11, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.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 December 18, 2019 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
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability from
work during the period October 21 through 28, 2016 causally related to her accepted June 16, 2016
employment injury.
FACTUAL HISTORY
On June 16, 2016 appellant, then a 40-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she developed a middle upper back pain when she picked
up a tall collection tub and dumbed it into a hamper. She stopped work on the date of injury. On
July 19, 2016 OWCP accepted the claim for a muscle and tendon strain of the back wall of the
thorax. OWCP paid appellant intermittent wage-loss compensation on the supplemental rolls from
August 13 through October 20, 2016.
Dr. Cory Russell, an osteopathic physician specializing in family medicine, provided
reports dated June 16, 2016. In a report dated June 16, 2016, he noted appellant’s history of injury,
physical examination findings, diagnosis of thoracic strain, and noted that she would be placed on
light duty. In a June 16, 2016 work status form, Dr. Russell diagnosed thoracic strain and released
her to modified work on June 17, 2016 with restrictions of no lifting or bending or operating heavy
machinery or working near heavy equipment.
In a July 22, 2016 report, Dr. John Powell, a Board-certified family medicine physician,
diagnosed thoracic region strain, thoracic radiculitis, due to a lifting and handling injury. He, in a
work status report of even date, released appellant to return to sedentary work, with a 15-pound
lifting limit as of that date.
Appellant was seen by Dr. Russell in follow-up visits through September 28, 2016 with
examination findings detailed and diagnosis of thoracic strain. Dr. Russell, in work status forms,
work capacity evaluation forms (Form OWCP-5c), and duty status report forms (Form CA-17)
covering the period June 20 through October 13, 2016 released appellant to modified or light-duty
work, with a 15-pound lifting limit.
In a letter dated October 21, 2016, T.R., postmaster, informed appellant that he was
obligated to offer her the attached modified assignment of work based on her medical work
restrictions in lieu of her resignation submitted on October 20, 2016. The job offer bore the
heading “Offer of Modified Assignment (Limited Duty)” for the position of city carrier assistant.
The effective/available work date was noted as October 21, 2016. The employing establishment
noted that the position was for 40 plus hours with Sunday as a scheduled day off. The location of
the position was at the employing establishment. The position involved casing mail one to two
hours and delivering mail within 15-pound weight restrictions between two to seven hours day.
The physical requirements of the position included intermittent lifting of no more than 15 pounds.
On November 14, 2016 appellant filed a claim for compensation (Form CA-7) for
disability during the period October 15 to 28, 2016.
A Notification of Personnel Action PS Form 50 dated November 18, 2016 noted that
appellant resigned from the employing establishment effective October 20, 2016.

2

In a letter dated November 22, 2016, OWCP acknowledged receipt of appellant’s claim for
wage-loss compensation for the period October 15 to 28, 2016. It advised that the evidence
indicated that a temporary light-duty assignment was available within appellant’s medical
restrictions for the period of claimed lost time, which she declined. OWCP informed her of the
provisions of 20 C.F.R. § 10.500(a) that an employee is not entitled to any wage-loss compensation
claimed on a Form CA-7 where the employee has medical work restriction in place, that light duty
is available within those restrictions, and the employee received written notification that work was
available within those restrictions. It further advised that no wage-loss compensation was payable
to a claimant who declined a temporary light-duty assignment OWCP deemed appropriate. Lastly,
OWCP informed appellant of the medical and factual evidence required to establish entitlement to
wage-loss compensation. It afforded appellant 30 days to accept the position or to submit evidence
as to why the work assignment did not accommodate her medical restrictions.
In response to OWCP’s letter, appellant submitted progress notes and a work status
notification form dated November 11, 2016 from Dr. Russell. Dr. Russell released appellant to
return to light-duty work for 30 days as of that day with restrictions of no lifting more than 20
pounds.
By decision dated January 6, 2017, OWCP terminated appellant’s wage-loss
compensation, effective October 21, 2016, because she failed to accept the October 21, 2016
temporary light-duty assignment in accordance with 20 C.F.R. § 10.500(a).
Subsequent to OWCP’s January 6, 2017 decision, it continued to receive progress notes
from Dr. Russell.
In a work capacity evaluation form (Form OWCP-5c) dated November 20, 2017, Dr. Ruth
Lowengart, a physician Board-certified in internal medicine and occupational medicine, diagnosed
thoracic strain and thoracic segmental dysfunction causally related to the accepted employment
injury and indicated that appellant was capable of performing modified work with no lifting more
than 25 pounds for eight hours.
On January 5, 2018 appellant requested reconsideration.
Dr. Lowengart provided additional reports and OWCP-5c forms regarding appellant’s
condition and work capability.
By decision dated April 4, 2018, OWCP denied modification.
On July 25, 2018 appellant, through counsel, requested reconsideration. By decision dated
October 5, 2018, OWCP denied modification.
On September 20, 2019 appellant requested reconsideration. By decision dated
December 18, 2019, OWCP vacated in part and affirmed in part the January 6, 2017 decision. It
found that it erred in denying ongoing wage-loss compensation for the period October 15 through
20, 2016, but affirmed the denial of wage-loss compensation for the period of October 21 to
28, 2016.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 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.4 In general the term, disability under FECA means incapacity
because of injury in employment to earn the wages, which the employee was receiving at the time
of such injury.5 This meaning, for brevity, is expressed as disability for work.6
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.7 The opinion of the physician must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship.8
Section 10.500(a) of OWCP’s regulations provides that benefits are available only while
the effects of a work-related condition continue. Compensation for wage loss due to disability is
available only for periods during which an employee’s work-related medical condition prevents
him or her from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for wage-loss claimed on a Form CA-7 to the extent that
evidence contemporaneous with the period claimed on a Form CA-7 establishes that an employee
had medical work restrictions in place, that light duty within those work restrictions was available,
and that the employee was previously notified in writing that such duty was available.9
OWCP’s procedures provide that, when a claimant is not on the periodic rolls, a claim for
wage-loss compensation may be received on a Form CA-7 when a temporary light-duty
assignment has been provided by the employing establishment. These procedures further provide
that, when a formal loss of wage-earning capacity has not been issued, OWCP’s claims examiner
should follow certain specified procedures. If the evidence establishes that injury-related residuals
continue and result in work restrictions, that light duty within those work restrictions was available,
and that the employee was notified in writing that such light duty was available, then wage-loss
benefits (effective the date of the written notification of light-duty availability) are not payable for
the period covered by the available light-duty assignment. Such benefits are payable only for
4

B.M., Docket No. 19-1075 (issued February 10, 2021); B.T., Docket No. 19-1331 (issued April 30, 2020);
S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).
5

See 20 C.F.R. § 10.5(f).

6

See B.M., supra note 4; S.W., supra note 4. See also A.M., Docket No. 09-1895 (issued April 23, 2010); Roberta L.
Kaaumoana, 54 ECAB 150 (2002).
7

B.T., supra note 4; J.M., Docket No. 19-0478 (issued August 9, 2019).

8

Id.

9
20 C.F.R. § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Offers and Return to Work,
Chapter 2.814.9a (June 2013).

4

periods during which an employee’s work-related medical condition prevent him or her from
earning the wages earned before the work-related injury.10
ANALYSIS
The Board finds that appellant has not established that she entitlement to wage-loss
compensation for the period October 21 to 28, 2016.
OWCP denied appellant’s claim for wage-loss compensation for the period October 21
to 28, 2016 pursuant to 20 C.F.R. § 10.500(a).
OWCP paid appellant wage-loss benefits on the supplemental roll through
October 20, 2016. On October 21, 2016 the employing establishment provided appellant an offer
for a temporary full-time modified city carrier assistant position beginning that date, within her
15-pound lifting restriction provided by Dr. Russell. The document effectuating the offer bore the
heading “Offer of Modified Assignment (Limited-Duty).” The assignment was for a city carrier
assistant working 40 plus hours a week. The cover letter for the written job offer from the
postmaster advised that he was obligated to provide her a job offer based on her work restrictions.
Appellant had resigned from the employing establishment effective October 20, 2016. Appellant
did not establish that the light work offer, as of October 21, 2016, was outside her work restrictions,
or that the position was not actually available. While OWCP subsequently received reports from
Dr. Lowengart, these reports did not establish that the offered position was outside of appellant’s
work restrictions during the period October 21 to 28, 2016.
The evidence establishes that appellant had the ability to perform the offered light-duty
employment.11 Appellant had, however, submitted her resignation as of October 20, 2016 and
chose not to accept the written offer of employment. The Board, therefore, finds that appellant
was not entitled to receive wage-loss compensation under 20 C.F.R. § 10.500(a) during the period
October 21 to 28, 2016.
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 that she was entitled to wage-loss
compensation from October 21 to 28, 2016.

10

Id. at Chapter 2.814.9b (June 2013).

11

See T.A., Docket No. 18-0431 (issued November 7, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 27, 2021
Washington, DC

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

Janice B. Askin, 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.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS SERVICE, Jamaica, NY,
Employer
__________________________________________

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Appearances:
Kevin S. Anderson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-278
Issued: July 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 14, 2011 appellant, through his attorney, filed a timely appeal from the
May 20, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
terminated his compensation benefits. 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 terminated appellant’s compensation benefits.
FACTUAL HISTORY
On October 17, 1991 appellant, a 39-year-old senior customs inspector, sustained a
traumatic injury in the performance of duty when his vehicle was struck at an intersection.
1

5 U.S.C. § 8101 et seq.

OWCP accepted his claim for right knee contusion, left shoulder contusion, cervical sprain and
postconcussion syndrome. He received compensation for temporary total disability on the
periodic rolls.
Dr. David G. Carr, an osteopath and Board-certified neurosurgeon and second opinion
physician, evaluated appellant in 2006. He found that appellant was a severely deconditioned
gentleman with appropriate physical restrictions and appropriate degenerative conditions in his
low back and lower extremities “simply as a result of aging, deconditioning and weight.”
Dr. Carr found no spinal disorder or abnormality related to the 1991 motor vehicle accident. He
also found no neurologic deficit or abnormality. Dr. Carr concluded that appellant was able to
work full time with no restrictions with respect to any condition or injury stemming from the
accident.
Dr. Kevin D. McBride, Board-certified in family medicine and appellant’s attending
physician, responded that appellant had been a patient since 1999 and that his symptoms had
been consistent and unrelenting since that time. Upon reviewing Dr. Carr’s report, Dr. McBride
acknowledged there may be alternative explanations for appellant’s pain, as he had developed
additional diseases such as osteoarthritis of his knee. “However, [appellant] tells me his
symptoms began at the time of injury, they were not present prior and they have persisted since.
I therefore assume the accident was at least some degree responsible for his symptoms.” It was
Dr. McBride’s opinion that appellant was not able to return to work because of persistent chronic
pain.
To resolve this conflict in medical opinion, OWCP referred appellant, together with the
medical record and a statement of accepted facts, to Dr. Emmanuel N. Obianwu, a Boardcertified orthopedic surgeon, who related appellant’s history and complaints. Dr. Obianwu
described findings on physical examination and reviewed the medical record, including a number
of diagnostic studies. He stated that Dr. McBride’s opinion -- that because appellant’s symptoms
began at the time of injury, the accepted right knee contusion could be related to his ongoing
knee symptoms -- was not correct. Dr. Obianwu explained that appellant did have a soft-tissue
problem in his right knee after the injury, but there was no evidence of an ongoing soft-tissue
problem or sprain or strain and there was nothing to suggest causation. It was Dr. Obianwu’s
opinion that the accepted right knee contusion had subsided with no need for further treatment.
Arthritis, he explained, was a disease of the aging process and given appellant’s weight, that was
the element that played a more important role in the current condition of his knees.
As to appellant’s neck, there were no findings that would suggest an ongoing strain or
sprain injury. Dr. Obianwu noted that appellant might have a mild cervical spondylosis. As he
reviewed the medical record, appellant’s main difficulty over the years was his low back, which
was not an accepted work injury. Dr. Obianwu also found that appellant’s left shoulder was
essentially normal, with almost full range of motion and negative results on all provocative tests.
Appellant’s left shoulder contusion had gotten better. “As related to the work accepted
problems, [appellant] can return to his regular duties.” Dr. Obianwu explained that any
restrictions were not because of the effects of the October 17, 1991 work injury: “The effects of
that accident have gotten better.”

2

As postconcussion syndrome fell out of Dr. Obianwu’s purview, OWCP referred
appellant, together with the medical record and a statement of accepted facts, to Dr. Michael W.
Grof, a Board-certified neurologist, to resolve the issue. Dr. Grof related appellant’s history of
injury and current complaints. He described his findings on physical and neurological
examination and he reviewed appellant’s medical record. “It is my opinion … that I would
totally agree with the excellent independent medical reviews and reports by Dr. David Carr and
Dr. Emanuel Obianwu. They make perfect medical and physiological sense in logical fashion.”
Dr. Grof explained that appellant suffered acute injuries that were primarily soft-tissue injuries.
Appellant also had a traumatic head injury, but postconcussion syndrome usually resolves within
months. Moreover, discussion of his marked behavioral change and rage was not consistent with
a closed-head injury. Appellant showed some characteristics of psychiatric abnormality that
probably were not present at the time he was employed, but such abnormalities were not known
to occur because of a mild closed-head injury.
It was Dr. Grof’s opinion that all of appellant’s injuries reached maximum medical
improvement years prior and that continued complaints of severe knee pain, shoulder pain and
generalized body pain, along with increased disability in his overall ability to do anything, were
truly related to deconditioning, weight gain, diabetes, osteoarthritis and mainly the effects of
aging. He explained that, since the injury 16 years ago, many normal aging physiological
processes had occurred with hormonal changes that made appellant less fit, but this was not due
to the 1991 motor vehicle accident. Appellant was not disabled by contusion of the knee or
shoulder, which definitely would have healed and he should have returned to baseline from his
closed-head injury within a year, as it did not appear to be very severe. Dr. Grof found that the
accepted work injuries of right knee contusion, left shoulder contusion, cervical strain and
postconcussion syndrome had all resolved.
In a July 23, 2008 decision, OWCP terminated appellant’s compensation benefits on the
grounds that the weight of the medical evidence supported that the accepted condition had all
resolved.
On May 20, 2011 an OWCP hearing representative affirmed the July 23, 2008 decision.
He found that the second-opinion and referee physicians had offered reasoned medical opinions
based on an accurate factual history supporting that the accepted work injury had resolved and
that appellant was currently suffering only from the effects of nonoccupational conditions.
On appeal, appellant’s representative argued that Dr. McBride’s opinion and evidence of
record outweighed those of Dr. Carr and Dr. Groff.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.3 It
2

5 U.S.C. § 8102(a).

3

Harold S. McGough, 36 ECAB 332 (1984).

3

may not terminate compensation without a positive demonstration by the weight of evidence that
entitlement to benefits has ceased.4
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.5 When there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.6
ANALYSIS
A conflict arose between appellant’s family physician, Dr. McBride, and the secondopinion osteopath and neurosurgeon, Dr. Carr, on whether appellant continued to suffer residuals
of his accepted medical conditions. Dr. Carr could find no spinal disorder, neurologic deficit or
other abnormality related to the 1991 motor vehicle accident. He felt that appellant was simply
suffering the effects of aging, deconditioning and weight. Dr. McBride disagreed. Appellant
told Dr. McBride that his symptoms began at the time of injury, were not present earlier and had
persisted ever since. Dr. McBride therefore assumed that the accident was at least some degree
responsible for appellant’s current symptoms.
To resolve this conflict, OWCP properly referred appellant, under section 8123(a) of
FECA, to Dr. Obianwu, a Board-certified orthopedic surgeon. It provided Dr. Obianwu with
appellant’s medical record and a statement of accepted facts to give him a proper background.
Dr. Obianwu examined appellant and could find no evidence of the contusions and sprain he
sustained in 1991. All of the accepted orthopedic conditions had resolved and it was his opinion,
much like Dr. Carr’s, that appellant was simply suffering the effects of age and weight.
To resolve whether appellant continue to suffer from the accepted postconcussion
syndrome, OWCP referred him to Dr. Grof, a Board-certified neurologist. As before, OWCP
provided appellant’s medical record and a statement of accepted facts so Dr. Grof could base his
opinion on a solid foundation. Dr. Grof found himself agreeing with Dr. Carr and Dr. Obianwu,
whose reports he described as excellent and making perfect medical and physiologic sense. He
discussed the nature of postconcussion syndrome and explained that characteristics of appellant’s
psychiatric abnormality -- his marked behavioral change and rage -- were not consistent with a
closed-head injury. Further, Dr. Grof reasoned that postconcussion syndrome usually resolves
within months and appellant’s head trauma appeared to be mild. He concluded therefore that
appellant had reached maximum medical improvement years ago. Appellant’s postconcussion
syndrome, in addition to his contusions and strain, had all resolved.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter
2.812.3 (March 2010).
5

5 U.S.C. § 8123(a).

6

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

4

Appellant’s representative argues Dr. McBride’s opinion and evidence far surpasses
those of Dr. Carr and Dr. Groff. Dr. McBride’s reason for associating appellant’s current
condition to what happened in 1991, however, is not convincing. Mere temporal relationships -appellant told Dr. McBride that he was asymptomatic before the injury and was persistently
symptomatic thereafter -- do not typically establish causal relationship without additional
medical reasoning. The Board has held that when a physician concludes that a condition is
causally related to employment because the employee was asymptomatic before the employment
injury, the opinion is insufficient, without supporting medical rationale, to establish causal
relationship.7 Nonetheless, OWCP considered Dr. McBride’s opinion and record to be sufficiently
supportive of continuing injury-related residuals to create a conflict with Dr. Carr requiring referral
to an impartial medical specialist or in this case two impartial medical specialists. As the Board
has explained, the opinions of these referee physicians are well reasoned and based on a proper
background and are therefore entitled to special weight in resolving the conflict.
The Board finds that the opinions of Dr. Obianwu and Dr. Grof are based on a proper
factual and medical history and are sufficiently well reasoned that they must be accorded special
weight. Their opinions are consistent with their clinical findings and they have offered medical
explanations that appear to be sound and logical. The Board finds that their opinions represent
the weight of the medical evidence and establish that appellant no longer suffers from the right
knee contusion, left shoulder contusion, cervical sprain and postconcussion syndrome he
sustained on October 17, 1991. The Board thus finds that OWCP has met its burden to justify
the termination of his compensation benefits. The Board will affirm OWCP’s May 20, 2011
decision.
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 terminated appellant’s compensation benefits.

7

Thomas D. Petrylak, 39 ECAB 276 (1987).

5

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Broadview Heights, OH, Employer
__________________________________________

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

Docket No. 11-609
Issued: October 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2011 appellant, through her representative, filed a timely appeal from an
October 7, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 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 has established that she sustained left lateral epicondylitis
in the performance of duty.
On appeal, counsel asserts that the October 7, 2010 decision was contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 16, 2010 appellant, then a 61-year-old modified clerk, filed a traumatic injury
claim (Form CA-1) for left forearm pain with radiation into the left hand and shoulder, sustained
that day in the performance of duty. She stopped work on August 16, 2010. On the reverse of
the form and in an associated statement, appellant’s supervisor noted that appellant’s job was
part of the National Reassessment Process and did not entail repetitive work.
In an August 31, 2010 letter, OWCP advised appellant of the evidence needed to
establish her claim, including a detailed description of the work factors alleged to have caused or
aggravated the claimed condition and rationalized medical evidence explaining how those factors
caused the claimed left lateral epicondylitis. It afforded her 30 days in which to submit such
evidence.
Appellant submitted August 16, 2010 emergency room forms signed by Dr. Christine
Boyko, an osteopathic physician, who diagnosed left lateral epicondylitis or left carpal tunnel
syndrome.2 The forms note that appellant experienced symptom onset while at work that day.
Dr. Boyko held appellant off work for two days and restricted use of the left upper extremity.
Dr. J. Robert Anderson, an attending Board-certified orthopedic surgeon, submitted
reports dated August 18 to September 3, 2010, relating appellant’s account of left arm symptoms
beginning on August 16, 2010 after lifting and carrying mail. He found tenderness over the left
lateral epicondyle. Dr. Anderson diagnosed moderate left lateral epicondylitis and renewed
restrictions against lifting, grasping, pulling and pushing with the left arm. On September 3,
2010 he opined that “the mechanism for onset of tendinitis with relative overuse is certainly
consistent with the diagnosis.” Dr. Anderson also prescribed a tennis elbow strap and
medication. He released appellant to work on August 24, 2010.
In September 15 and 23, 2010 statements, appellant described the onset of severe left arm
pain while pushing an accountables cage on August 16, 2010. She noted a 16-year history of
carpal tunnel syndrome, de Quervain’s tendinitis and right hand tendinitis, with two accepted
claims for January 5, 1989 and May 16, 1990 left hand injuries.
By decision dated October 7, 2010, OWCP denied appellant’s claim on the grounds that
causal relationship was not established. It accepted as factual that she pushed an accountables
cage on August 16, 2010. However, OWCP found that Dr. Anderson’s and Dr. Boyko’s reports
were insufficiently rationalized to establish a causal relationship between pushing the mail cage
and the onset of left lateral epicondylitis.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
2

August 16, 2010 x-rays of the left elbow and forearm were normal.

2

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 or an occupational disease.4
In order to determine whether an employee sustained a traumatic 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 that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
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.6
ANALYSIS
OWCP accepted that on August 16, 2010, appellant pushed an accountables mail cage as
part of her assigned duties. She has established a compensable work incident. In order to
prevail, she must also submit sufficient medical evidence to establish that pushing the mail cage
caused or aggravated left lateral epicondylitis. The Board finds, however, that appellant did not
submit such evidence.
Appellant submitted August 16, 2010 emergency room reports from Dr. Boyko, an
osteopathic physician and the August 18 to 23, 2010 reports from Dr. Anderson, an attending
Board-certified orthopedic surgeon. Dr. Boyko noted that she experienced symptoms at work,
but did not explain how and why her work factors were competent to cause the diagnosed left
arm conditions. Dr. Anderson related appellant’s account of lifting and carrying mail at work.
He stated on September 3, 2010 that her assertions of overuse were consistent with the diagnosis.
However, Dr. Anderson did not explain how and why pushing the accountables cage on
August 16, 2010 would cause left lateral epicondylitis. Without such rationale, his opinion is
insufficient to establish causal relationship.7
The Board notes that OWCP advised appellant by August 31, 2010 letter of the necessity
of submitting rationalized medical evidence supporting a causal relationship between the
identified work factors and the claimed left lateral epicondylitis. However, appellant did not
submit such evidence. Therefore, the Board finds that she has not established that she sustained
left lateral epicondylitis due to pushing the accountables cage on August 16, 2010.8

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

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

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

Id.

8

Guiseppe Aversa, 55 ECAB 164 (2003).

3

On appeal, counsel asserts that OWCP’s October 7, 2010 decision was “contrary to fact
and law.” As stated, appellant submitted insufficient medical evidence establishing that the
accepted work incident caused left lateral epicondylitis. Therefore, the October 7, 2010 decision
was proper under the law and facts of this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained left lateral
epicondylitis in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2010 is affirmed.
Issued: October 6, 2011
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
U.S. POSTAL SERVICE,
Aurora, CO, Employer
__________________________________________

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

Docket No. 07-1938
Issued: December 28, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from a May 15, 2007 merit decision of
the Office of Workers’ Compensation Programs which denied his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of his
claim.
ISSUE
The issue is whether appellant established that he sustained an occupational disease in the
performance of duty.
FACTUAL HISTORY
On December 28, 2005 appellant filed an occupational disease claim alleging that he
sustained pain in both hips and knees and swelling in both knees and lower legs as a result of
being on his feet for 8 to 12 hours a day. On January 25, 2006 the Office informed appellant that
additional information was needed to support his claim. No response was received.

In a February 28, 2006 decision, the Office denied appellant’s claim on the grounds that
there was no evidence to establish that the work exposure occurred as alleged or medical
evidence of a diagnosis connected to the claimed events.
On January 22, 2007 appellant requested reconsideration. He alleged that he saw a
chiropractor who diagnosed subluxation of the spine. Appellant had also been examined by an
orthopedic surgeon who diagnosed bone spurs of the right shoulder and scheduled surgery for
February 21, 2007. In a January 13, 2006 unsigned note, Dr. Dennis Genereux, an internist,
stated that appellant received treatment that day and was unable to work on January 13, 2006 but
could return to work on the January 14, 2006 without restrictions. A January 13, 2006 unsigned
office visit note from Dr. Genereux, diagnosed osteoarthritis. Appellant believed his condition
had worsened due to long hours worked through the holidays.
In a February 21, 2006 letter, appellant stated that he began experiencing pain in both
knees and hips on November 1, 2005. He claimed that he was required to work 8 to 12-hour
shifts, with increased mail volume which caused his pain to worsen. In a March 13, 2006 letter,
he stated that he also experienced pain in his right shoulder and shooting pain from his shoulder
to his neck. Appellant noted that he was on light duty from March 19 through September 10,
2004 and not allowed to lift no more than 5 pounds; however, he did occasionally lift up to 15
pounds.
In a May 15, 2007 merit decision, the Office denied appellant’s claim finding that the
medical evidence failed to establish that he sustained a medical condition in connection with his
federal employment.
LEGAL PRECEDENT
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
diagnosed condition is causally related to the employment factors identified by the claimant.1
The medical opinion needed to establish an occupational disease claim 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.2
The mere fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the condition and employment.
Neither the fact that the condition became apparent during a period of employment, nor

1

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

2

Donald W. Wenzel, 56 ECAB ___ (Docket No. 05-146, issued March 17, 2005).

2

employee’s belief that the condition was caused by or aggravated by employment conditions is
sufficient to establish causal relationship.3
ANALYSIS
Appellant attributed his hip and knee conditions to factors of his federal employment
beginning on November 1, 2005. The Board finds that he has submitted insufficient medical
evidence to establish that his conditions were caused or aggravated by his federal employment.
Appellant identified the employment factors of standing on his feet 8 to 12 hours, as
having caused or contributed to his conditions. The Office accepted that he stood on his feet as
part of his duties. The medical evidence of record does not establish the existence of a disease or
condition sustained by appellant in the performance of duty. The January 13, 2006 office visit
note, presumably from Dr. Genereux, diagnosed osteoarthritis. However, as the note was not
signed it cannot be determined to be from Dr. Genereux and is not considered to be a physician’s
opinion. Unsigned doctor’s reports are of diminished probative value.4 Moreover, none of the
reports contain a physician’s opinion as to the cause of appellant’s condition. Evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.5 Appellant bears the burden to submit probative
medical evidence to establish a diagnosed condition causally related to his federal employment.
He has not met his burden of proof.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

3

Alberta S. Williamson, 47 ECAB 569 (1996).

4

Merton J. Sills, 39 ECAB 572 (1988).

5

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

3

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1067
Issued: September 20, 2013

Case Submitted on the Record

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

JURISDICTION
On March 27, 2013 appellant filed a timely appeal from a November 27, 2012 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 suspended appellant’s compensation benefits for
failure to timely submit a CA-1032 form.
FACTUAL HISTORY
On April 11, 2005 appellant, then a 43-year-old nurse, filed a traumatic injury claim
alleging that she sustained a low back strain on March 31, 2005. She stated that she had to step
1

5 U.S.C. § 8101 et seq.

on a stool to access the computer keyboard and, when the automatic drawer popped open, it hit
her leg causing her to step backward and fall off the stool. OWCP accepted the claim for
lumbosacral strain and back contusion. It eventually placed appellant on its periodic
compensation rolls.
On September 10, 2012 OWCP informed appellant that she was required to provide
information in connection with her receipt of benefits under FECA and it enclosed a Form CA1032. Appellant was advised to complete all questions and return the form within 30 days or her
benefits would be suspended. The letter was sent to her last known address.
In an October 26, 2012 letter sent to appellant’s address of record, OWCP advised
appellant that it had not received the completed Form CA-1032. It again notified her that, if she
did not complete and return the enclosed Form CA-1032 within 30 days, her compensation
benefits would be suspended in accordance with 20 C.F.R. § 10.528.
Appellant did not respond.
By decision dated November 27, 2012, OWCP suspended appellant’s compensation
benefits as of November 18, 2012 based on her failure to report earnings and employment
information as required. It noted that, if she completed and returned an enclosed copy of the
CA-1032 form, her compensation benefits would be restored retroactively to the date they were
suspended.2
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.4 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.5

2

On December 7, 2012 OWCP received appellant’s completed CA-1032 form dated September 17, 2012.

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528.

5

Id.; see also 20 C.F.R. § 10.525; Robert A. Robbins, Docket No. 05-728 (issued July 15, 2005).

2

ANALYSIS
In September 10 and October 26, 2012 letters, OWCP requested that appellant complete
and return the enclosed CA-1032 forms concerning the status of her employment and any
dependents. It properly notified her that, if she did not completely answer all questions and
return the statement within 30 days, her benefits would be suspended. The record reflects that
OWCP’s letters were properly sent to appellant’s last known address. Appellant did not
respond.6 She did not return a completed CA-1032 form to OWCP within the time period
allowed. As appellant failed to complete and return the information concerning her benefits as
regulated by OWCP, it properly suspended her compensation pursuant to 20 C.F.R. § 10.528.
On appeal appellant contends that her completed CA-1032 form was received by OWCP
on December 7, 2012. While she argues that her compensation benefits should be retroactively
restored, the Board lacks jurisdiction to review such evidence for the first time on appeal.7 The
Board’s jurisdiction is limited to evidence that was before OWCP at the time of its final decision.
Appellant may submit new evidence or argument with a written request for
reconsideration 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 suspended appellant’s compensation benefits based
on her failure to timely submit a completed CA-1032 form when requested.

6

Under the mailbox rule it is presumed, absent evidence to the contrary, that a notice mailed to an individual in
the ordinary course of business was received by that individual. See Joseph R. Giallanza, 55 ECAB 186 (2003);
A.C. Clyburn, 47 ECAB 153 (1995). D.A., Docket No. 12-989 (issued October 22, 2012).
7

See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the November 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Jamaica, NY, Employer
)
___________________________________________ )
M.M., Appellant

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

Docket No. 10-2358
Issued: July 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 8, 2010 appellant filed a timely appeal from the July 30, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his 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 met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on June 8, 2010.
FACTUAL HISTORY
On June 14, 2010 appellant, then a 62-year-old transportation security officer/screener,
filed a traumatic injury claim (Form CA-1) alleging that on June 8, 2010 he injured his right
1

5 U.S.C. § 8101 et seq.

hand while lifting a bag in the performance of duty. The employing establishment noted that he
did not lose time from work; however, medical expenses were expected.
By letter dated June 16, 2010, OWCP advised appellant that additional factual and
medical evidence was needed. Appellant was requested to describe in detail how the injury
occurred and to provide dates of examination and treatment, a history of injury given by him to a
physician, a detailed description of any findings, the results of all x-rays and laboratory tests, a
diagnosis and course of treatment followed and a physician’s opinion supported by a medical
explanation as to how the reported work incident caused the claimed injury. OWCP explained
that a physician’s opinion was crucial to his claim and allotted 30 days within which to submit
the requested information. No response or additional evidence was received.
By decision dated July 30, 2010, OWCP denied appellant’s claim on the grounds that he
did not establish an injury as alleged. It found that the evidence was insufficient to show that the
claimed event occurred as alleged because appellant did not provide a detailed factual statement
explaining the events that took place. Additionally, no medical evidence was provided.
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 timely filed within the applicable time
limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
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.
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
ANALYSIS
Appellant alleged that he injured his right hand while lifting a bag at work. Although
OWCP found insufficient evidence to establish that the incident occurred as alleged, there is no
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden Sr., 40 ECAB 312 (1988).

5

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

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id.

2

dispute that appellant lifted baggage at work on June 8, 2010. The employing establishment did
not dispute the fact that appellant lifted a bag at work on June 8, 2010 but advised that there was
no lost time from work. The Board finds that the first component of fact of injury, the claimed
incident, lifting baggage, occurred as alleged.
However, the medical evidence is insufficient to establish that the employment incident
caused an injury. There is no medical evidence of record. Appellant did not submit any medical
reports to address how the June 8, 2010 lifting incident caused or aggravated a right hand injury.
Thus, he has not established a prima facie claim.8 There is no medical evidence from a
physician addressing how lifting a bag on June 8, 2010, caused or aggravated a diagnosed right
hand injury. Consequently, appellant has not met his burden of proof to establish his claim.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: July 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

See Donald W. Wenzel, 56 ECAB 390 (2005).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HUNTER HOLMES MCGUIRE MEDICAL
CENTER, Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-243
Issued: April 17, 2013

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 November 14, 2012 appellant filed a timely appeal of an October 3, 2012 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 this decision.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. In an August 5, 2011 decision, the
Board found that appellant was exposed to construction dust, debris and fumes at work on and
1

5 U.S.C. § 8101 et seq.

after November 16, 2009, but affirmed OWCP’s denial of her occupational disease claim on the
basis that the medical evidence did not establish that this exposure caused or contributed to
various diagnosed conditions.2 Facts germane to the present appeal are set forth.
On November 23, 2009 appellant, then a 55-year-old rehabilitation technician, filed an
occupational disease claim alleging that she sustained a headache, irritated eyes, coughing and
burning in her nose and throat due to airborne construction dust, debris and fumes. She became
aware of her condition and its relationship to her employment on November 16, 2009. By
decisions dated April 21 and August 18, 2010, OWCP denied appellant’s claim, finding the
evidence insufficient to establish that the alleged exposure actually occurred.
A June 2, 2010 job status note from Dr. David Alan Chandler, a Board-certified
ophthalmologist, placed appellant off duty for eight weeks due “to severe toxic corneal
breakdown [resulting] from airborne exposure.”
Following issuance of the Board’s August 5, 2011 decision, appellant filed a request for
reconsideration on August 2, 2012 and submitted new medical evidence. In a Form WH-380
(“Certification of Health Care Provider”) dated June 30, 2010, Dr. Chandler stated:
“Due to exposure [to] airborne debris at worksite from ongoing renovations,
[appellant] develops severe ocular surface reaction including corneal abrasions
and conjunctivitis. The corneal abrasions persist for many days after the
exposure, leading to inability to work due to eye pain and decreased vision ....”
He added that appellant was symptomatic since April 15, 2008.
In a Form CA-20 (“Attending Physician’s Report”) dated September 20, 2011,
Dr. Chandler diagnosed corneal punctate keratitis, conjunctivitis and ocular pain and opined that
appellant sustained these injuries on November 16, 2009 as a result of occupational exposure to
debris. He explained that her condition worsened at work, but improved while off duty.3
On October 3, 2012 OWCP denied modification of OWCP’s August 5, 2011 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

2

Docket No. 10-2402 (issued August 5, 2011). The findings contained in the Board’s prior decision are
incorporated by reference.
3

Appellant also provided Dr. Chandler’s eye examination records for the period August 13, 2010 to May 23,
2012, all of which were largely illegible.

2

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
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.8
ANALYSIS
The Board finds that appellant failed to establish her occupational disease claim because
the medical evidence did not sufficiently demonstrate that occupational exposure to construction
dust, debris and fumes at work on and after November 16, 2009 caused or contributed to corneal
punctate keratitis, conjunctivitis and ocular pain.
Dr. Chandler remarked in a June 2, 2010 job status note that appellant sustained toxic
corneal breakdown “[resulting] from airborne exposure,” but did not identify the substance to
which she was exposed.9 He later clarified in a Form WH-380 dated June 30, 2010 that she was
exposed to airborne debris from ongoing renovations at work, which led to corneal abrasions and
conjunctivitis. In a Form CA-20 dated September 20, 2011, Dr. Chandler diagnosed corneal
punctate keratitis, conjunctivitis and ocular pain and concluded that appellant sustained these
injuries on November 16, 2009 due to industrial debris exposure, detailing that her condition
only worsened on the job. Nonetheless, he did not pathophysiologically explain how exposure to
construction dust, debris and fumes caused or contributed to the diagnosed injuries.10 While
Dr. Chandler observed that appellant was symptomatic on duty, this fact does not raise an
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

See S.P., 59 ECAB 184, 188 (2007).

7

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

8

I.J., 59 ECAB 408 (2008); supra note 5.

9

See John W. Montoya, 54 ECAB 306 (2003) (a physician’s opinion must discuss whether the employment
factors described by the claimant were causally related to the diagnosed medical condition).
10

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

3

inference of causal relationship.11 Moreover, he did not furnish clear, objective evidence to
support his diagnoses.12 The need for rationalized medical opinion evidence is particularly
important in this case because Dr. Chandler indicated that appellant was symptomatic since
April 15, 2008. In the absence of such evidence, appellant failed to discharge her burden of
proof.
Appellant may submit new evidence or argument as part of a formal 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 issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2013
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

S.B., Docket No. 11-853 (issued November 15, 2011).

12

William E. Lewis, Docket No. 96-182 (issued November 24, 1997).

4