United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 14-1844
Issued: February 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 20, 2014 appellant, through her representative, filed a timely appeal from a
June 10, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established a recurrence of total disability beginning
September 2, 2011 causally related to her February 5, 1999 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. On February 28, 2014 the Board issued an
order dismissing appeal on the grounds that appellant’s representative requested that the appeal
be withdrawn.2
On February 8, 1999 appellant, then a 33-year-old modified letter carrier, filed a
traumatic injury claim alleging that she injured her back and shoulders while lifting a tray of mail
and then turning to resume racking. OWCP accepted the claim for a back strain, lumbar region.
Appellant returned to limited duty eight hours a day March 23, 1999 and resumed her previous
rehabilitation position on May 22, 1999.
On March 17, 2010 appellant claimed a material worsening of her back condition
commencing November 24, 2009. By decision dated February 22, 2011, OWCP accepted the
November 24, 2009 recurrence. This was based on the November 20, 2010 report from
Dr. Leonard Langman, a Board-certified neurologist, who opined that appellant’s lumbar
radiculopathy was a recurrence of her February 5, 1999 low back injury.
On September 15, 2011 appellant filed a (Form CA-7) claim for a September 2, 2011
recurrence of injury and indicated that the pain in her back worsened while moving around. She
awoke in pain on September 2, 2011 and went to the hospital the next day as the pain worsened.
Evidence of record included appellant’s statement regarding how the injury occurred. In
a September 20, 2011 Form CA-20, Dr. Langman noted that the September 7, 2011 magnetic
resonance imaging (MRI) scan of the lumbar spine showed lumbar radiculopathy. He also
opined that appellant was totally disabled from September 6, 2011 as a result of injury sustained
on the job.
By letter dated September 29, 2011, OWCP requested additional information. It received
an admitting form, discharge summary, and notes from Staten Island University Hospital for the
period September 3 and 4, 2011, which contained a finding of intractable back pain and which
diagnosed muscle spasm. The hospital also conducted lumbar and cervical x-rays, which were
included. A September 7, 2011 lumbar MRI scan provided an impression of disc bulges in the
midline L2-3 and L5-S1 disc space levels and degenerative changes at L2-3 disc space level.
In an October 14, 2011 report, Dr. Langman noted the history of injury and referenced
recurrences of February 5, 1999 and November 24, 2009. No mention of the September 2, 2011
recurrence or subsequent hospitalization was provided.
By decision dated November 4, 2011, OWCP denied the claimed September 2, 2011
recurrence.
On November 16, 2011 appellant requested reconsideration. In an October 4, 2011 note,
Dr. Langman diagnosed her with lumbar radiculopathy with pain and spasm and opined that she
was totally disabled.
2

Docket No. 14-190 (issued February 28, 2014).

2

Medical notes from Dr. Howard Baum, a Board-certified orthopedic surgeon, were also
received. In a October 25, 2011 note, he reviewed appellant’s file and stated that the initial
injury of 1999 was consistent with a thoracic spine injury and that she continued to have thoracic
and low back pain from June 28, 2010 when she aggravated this back condition again as she
continued to have symptoms. In a December 6, 2011 note, Dr. Baum provided an assessment of
long-standing thoracic and lumbar spine pain. In a January 3, 2012 note, he noted appellant’s
physical examination findings and opined that she remained totally disabled.
By decision dated February 15, 2012, OWCP denied the September 2, 2011 claimed
recurrence. It also determined that appellant was not claiming a recurrence of disability related
to her February 5, 1999 injury but rather a new traumatic injury for a new condition and
converted her recurrence claim to a new traumatic injury claim under case file number
xxxxxx169.
On February 21, 2012 Dr. Langman opined that appellant could return to work on
February 27, 2012 in her rehabilitation position. He also completed a duty status report.
In a February 7, 2012 report, Dr. Baum indicated that appellant has radiculopathy
symptoms to both upper and lower extremities but the electromyography (EMG) for the upper
extremities was negative. He opined that she had a postural spinal, or foraminal stenosis and
requested authorization for further diagnostic testing.
In a March 5, 2012 report, Dr. Langman noted that appellant injured her lower back on
February 5, 1999. He indicated that on September 2, 2011, while in bed, she felt pain in the
lower back radiating down her legs. Dr. Langman noted that appellant was admitted to hospital
for muscle spasms on September 3, 2011 and discharged September 4, 2011. He noted that,
since her initial injury, she complained of lower back pain with radiation to the left lower
extremity. Dr. Langman presented examination findings and noted that the September 7, 2011
MRI scan of the lumbar spine showed disc bulges midline L2-3 and L5-S1. He provided an
impression of lumbar radiculopathy, exacerbated, and opined that this was a recurrence of a
lower back injury sustained while working on February 5, 1999.
In a March 5, 2012 report, Dr. Baum noted the history of the February 5, 1999 work
injury. On September 2, 2011 appellant was lying down in bed when she had an acute event
where she began to experience radiculopathy-type symptoms with sensation radiating to her legs.
Dr. Baum noted that she has been treated conservatively for many years, but had a progressive
increase in pain and numbness shooting down her lower extremities. He noted that the
August 10, 2010 EMG revealed a left L5-S1 radiculopathy with a left peroneal neuropathy and
that MRI scans have shown some bulging discs at multiple levels in appellant’s lumbar spine.
Dr. Baum diagnosed lumbar radiculopathy and opined that she could continue to work a
modified assignment two hours a day with no lifting.
In an April 3, 2012 report, Dr. Baum diagnosed left L5-S1 radiculopathy by August 10,
2010 EMG. He opined that appellant should continue modified duty two hours a day with
significant weight and bending restrictions. In a May 8, 2012 report, Dr. Baum stated that, while
she continued to complain of pain in the lower back, she had no lumbar radiculopathy. He

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continued to opine that appellant was totally disabled. Prescriptions for physical therapy and
back support were also provided.
In a June 5, 2012 report, a Dr. Charles Pearlman3 noted appellant’s complaints of back
pain and that she had been limited to work two hours a day. He opined that she continued to be
moderately disabled and should avoid all pushing, pulling, lifting, or carrying.
Additional progress reports were received from Dr. Baum along with prescriptions for
physical therapy and back brace. In a June 19, 2012 report, he opined that appellant had lumbar
L5-S1 left radiculopathy. In a July 24, 2012 report, Dr. Baum noted her examination findings
and that she would continue physical therapy. In an October 9, 2012 report, he continued
appellant in her two-hour-a-day modified-duty assignment. In a November 6, 2012 report,
Dr. Baum provided an assessment of chronic back pain, L5 spine radiculopathy and LS spine
herniated nucleus pulposus. In December 4, 2012, January 8, February 5, and March 6, 2013
reports, he provided an assessment of lumbosacral spine derangement and radiculopathy of the
lumbar spine.
On April 19, 2013 appellant’s counsel inquired as to the status of his reconsideration
request. By decision dated May 13, 2013, OWCP denied the reconsideration on the grounds that
it was untimely filed and failed to present clear evidence of error.
Additional medical evidence from Dr. Baum indicated decreased range of motion and
lumbar derangement on May 6, 2013, lumbar derangement on June 11, July 9, August 13, and
September 10, 2013. Prescriptions for physical therapy and back support were also received.
By decision dated November 6, 2013, OWCP vacated its decisions of February 15, 2012
and May 13, 2013 as a new claim was erroneously created when appellant filed the recurrence
claim. It doubled case number xxxxxx169 into the current case file, with the current case file as
the master case. In another decision dated November 6, 2013, OWCP affirmed the recurrence
denial of November 4, 2011 as the medical opinion evidence in support of a causal relationship
between the accepted injuries and the claimed September 2. 2011 recurrence was lacking.
On March 10, 2014 appellant, through counsel, submitted a March 10, 2014
reconsideration request, recorded by OWCP on March 17, 2014. Multiple medical reports and
physical therapy notes dated January 2, 2013 onward were received.
By decision dated June 10, 2014, OWCP denied modification of its November 6, 2013
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment

3

Dr. Pearlman’s credentials are not of record.

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that caused the illness.4 When an employee, who is disabled from the job he or she held when
injured on account of employment-related residuals, returns to a light-duty position or the
medical evidence establishes that light duty can be performed, the employee has the burden to
establish by the weight of reliable, probative, and substantial evidence a recurrence of total
disability. As part of this burden of proof, the employee must show either a change in the nature
and extent of the injury-related condition, or a change in the nature and extent of the light-duty
requirements.5
The term disability as used in FECA means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.6 For each period
of disability claimed, the employee has the burden of establishing that she was disabled for work
as a result of the accepted employment injury.7 Whether a particular injury caused an employee
disability for employment is a medical issue which must be resolved by competent medical
evidence.8 The fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two.9
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow an employee to self-certify their disability and
entitlement to compensation.10
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.11 Appellant’s burden of proving she was disabled on particular
dates requires that she furnish medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with medical reasoning.12
Where no such rationale is present, the medical evidence is of diminished probative value.13

4

20 C.F.R. § 10.5(x).

5

Terry R. Hedman, 38 ECAB 222 (1986).

6

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

7

Sandra D. Pruitt, 57 ECAB 126 92005); Dennis J. Balogh, 52 ECAB 232 (2001).

8

G.T., 59 ECAB 447 (2008); Gary J. Watling, 52 ECAB 278 (2001).

9

D.I., 59 ECAB 158 (2007).

10

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

11

S.F., 59 ECAB 525 (2008).

12

Ronald A. Eldridge, 53 ECAB 218 (2001).

13

Mary A. Ceglia, 55 ECAB 626 (2004).

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ANALYSIS
OWCP accepted that appellant sustained a back strain on February 8, 1999 and paid
appropriate benefits, including a recurrence of November 24, 2009. Appellant was working
limited duty at the time of injury and returned to her eight-hour limited-duty position
March 23, 1999. She subsequently filed a recurrence claim for September 2, 2011 stating that
her pain in her back got worse while moving around and she went to the hospital. OWCP
erroneously converted the recurrence claim into a new traumatic injury under case file number
xxxxxx169. In its November 6, 2013 decision, it doubled case file number xxxxxx169 into the
current claim, with the current claim as the master file and denied the recurrence claim. In its
June 10, 2014 decision, OWCP reviewed all the medical records relevant to the recurrence claim
of September 2, 2011 and denied modification of its November 6, 2013 decision.
The Board has reviewed the medical record and finds that the evidence does not support,
nor does appellant allege, that there was any change in her light-duty assignment on or about
September 2, 2011. The Board has also reviewed the medical record and finds no reasoned
opinion to support the claim that she sustained a spontaneous change in her medical condition on
or about September 2, 2011 that was causally related to her January 5, 1999 work injury.
The record reflects that the last medical report prior to appellant’s recurrence claim of
September 2, 2011 was Dr. Langman’s November 20, 2010 report in which he indicated that her
lumbar radiculopathy was a recurrence of her February 5, 1999 low back injury. While this
report predates her recurrence claim, it is noted that he did not explain or offer any medical
rationale as to how her accepted back strain deteriorated over the years and resulted in a
disabling lumbar radiculopathy.
There are no other medical reports of record dated before September 3, 2011, when
appellant sought treatment for her back in the hospital for the alleged September 2, 2011
recurrence. The hospital record, which contains diagnosis of muscle spasm, and the various
diagnostic tests completed provided no opinion as to the cause of her condition and also did not
address recurrence of disability.14 Thus, this report is of limited probative value.
Dr. Langman, in his September 20, 2011 CA-20 form, noted MRI scan evidence of
lumbar radiculopathy and opined appellant was totally disabled from September 6, 2011 as a
result of injury sustained on the job. However, he fails to address how the September 5, 1999
employment injury caused the currently diagnosed lumbar radiculopathy. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value.15 As previously noted, OWCP accepted only a back strain in this case. Appellant has the
burden of proof to establish causal relationship between the conditions not accepted by OWCP
and the February 5, 1999 employment injury.16
14

See Mary E. Marshall, 56 ECAB 420 (2005).

15

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

16

Michael S. Mina, 57 ECAB 379 (2006); Kimper Lee, 45 ECAB 565 (1994); Thomas D. Petrylak, 39 ECAB
276 (1987).

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In his October 14, 2011 report, Dr. Langman failed to mention the September 2, 2011
recurrence or that appellant had been hospitalized. In his October 4, 2011 note, he opined that
she was totally disabled from lumbar radiculopathy. However, as in his earlier reports,
Dr. Langman failed to address how the September 5, 1999 employment injury caused the lumbar
radiculopathy.17 These reports are insufficient to establish appellant’s claim.
In his March 5, 2012 report, Dr. Langman noted the history of the February 5, 1999
injury and the event of September 2, 2011. He noted that the September 7, 2011 MRI scan of the
lumbar spine showed disc bulges midline L2-3 and L5-S1. While Dr. Langman opined that
appellant’s lumbar radiculopathy was exacerbated and was a recurrence of the February 5, 1999
back injury, he offered no medical rationale for his opinion. He also failed to address how the
September 5, 1999 employment injury caused the lumbar radiculopathy or resulted in disc bulges
midline L2-3 and L5-S1.18 Thus, this report is insufficient to establish appellant’s claim.
Numerous medical reports from Dr. Baum were received. In his October 25, 2011 report,
Dr. Baum opined that the 1999 injury was consistent with a thoracic spine injury and he opined
in that report as well as in reports dated December 6, 2011 and January 3, 2012 that appellant
had long-standing thoracic and lumbar spine pain. In his February 7, 2012 report, Dr. Baum
opined that she has more of a postural spinal or foraminal stenosis. However, he did not address
how the September 5, 1999 employment injury, which was accepted for back sprain, caused or
aggravated the thoracic and lumbar spine pain or caused postural spinal or foraminal stenosis and
disabled appellant. Furthermore, Dr. Baum did not address the claimed recurrence of
September 2, 2011. Thus, these reports are insufficient to establish appellant’s claim.
In his March 5, 2012 report, Dr. Baum noted the history of the February 5, 1999 work
injury and appellant’s radiculopathy-type symptoms she experienced on September 2, 2011. He
noted that she had a left L5-S1 radiculopathy with left peroneal neuropathy by August 10, 2010
EMG and bulging discs at multiple levels in her lumbar spine by MRI scan. While Dr. Baum
noted that appellant had a progressive increase in pain and numbness radiating down her lower
extremities and diagnosed lumbar radiculopathy, he provided no opinion on the claimed
recurrence of September 2, 2011, nor did he provide any medical rationale as to how the
February 6, 1999 work injury could cause the conditions as diagnosed on EMG and MRI scan.
Thus, this report is also insufficient to establish her claim.
The remainder of the medical evidence of record from Dr. Baum and Dr. Pearlman do not
address the claimed recurrence of September 2, 2011 or provide any medical rationale as to how
the February 6, 1999 work injury could cause appellant’s disability or diagnosed conditions.
In summary, the medical evidence of record is unsupported by rationalized medical
evidence, which demonstrates that the claimed recurrence was caused, precipitated, accelerated,

17

See Michael E. Smith, supra note 15.

18

Id.

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or aggravated by the accepted injury or which explains the nature of relationship between
appellant’s current conditions and her accepted injury.19
On appeal, appellant contends that the factual and medical basis of her recurrence has
been established. However, for the reasons set forth above, she has not established either the
claimed recurrence or that her current conditions are due to her accepted injury.
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 Board finds that appellant failed to establish a recurrence of disability on or after
September 2, 2011 causally related to her February 5, 1999 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 10, 2014 is affirmed.
Issued: February 13, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

19

A.M., Docket No. 09-1895 (issued April 23, 2010) (when a claimant stops work for reasons unrelated to the
accepted employment injury, there is no disability within the meaning of FECA).

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

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

Docket No. 11-1864
Issued: April 25, 2012

Case Submitted on the Record

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

JURISDICTION
On August 9, 2011 appellant filed a timely appeal from April 25 and July 28, 2011 merit
decisions 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 case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 2, 2010 appellant, then a 48-year-old city carrier, filed a Form CA-2 alleging
that she sustained an occupational disease. She became aware of a condition and realized its
relationship to her federal employment on April 22, 2010.2 Appellant retired in October 2010.
In a May 5, 2010 work status note, Dr. Benjamin Behroozan, a family practitioner,
diagnosed lumbar sprain/strain and proscribed lifting, pulling, pushing and carrying materials
weighing more than 25 pounds for the period May 6 to 20, 2010. In a May 21, 2010 note,
Dr. Richard J. Feldman, a Board-certified orthopedic surgeon, diagnosed L5-S1 degenerative
disc disease and extended appellant’s work restrictions through June 7, 2010.
OWCP informed appellant in a June 9, 2010 letter that additional evidence was needed to
establish her claim. It gave her 30 days to submit a factual statement detailing the specific
employment factors that contributed to her injury and a medical report from a physician
explaining the causal relationship between these purported factors and a diagnosed condition.
Appellant maintained in an undated statement that a hip condition resulted from routine
casing, loading and delivery of mail, which involved reaching, bending and carrying a satchel
weighing between 35 and 70 pounds.
In an undated work status note, Dr. Behroozan pointed out that appellant sustained an
injury on April 22, 2010. He proscribed lifting, pulling, pushing and carrying materials weighing
more than 25 pounds from April 22 to May 5, 2010.3 In June 4 and 16, 2010 notes, Dr. Feldman
diagnosed L5-S1 degenerative disc disease and advised appellant to avoid heavy lifting as well
as repetitive bending and stooping for the period June 4 to July 16, 2010.4
By decision dated July 16, 2010, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted work factors caused or contributed to the
alleged injury.
Following issuance of the July 16, 2010 decision, OWCP received additional medical
evidence. In April 24 and July 12, 2010 emergency department records, Dr. Edmond C. Noll, a
Board-certified emergency physician and family practitioner, related that appellant injured her
left hip due to twisting. On physical examination, he observed left hip joint pain. Dr. Noll
diagnosed left hip muscle strain. In a July 19, 2010 note, Dr. Feldman stated that appellant was
on permanent limited duty on account of a lumbar condition.
Appellant requested a telephonic hearing, which was held on November 3, 2010. She
testified that she sustained a left hip and lumbar condition sometime in 2006 when she tripped
over a mailbag and fell down at work. Appellant did not file a claim then or seek medical
2

Appellant later filed a traumatic injury claim for headaches related to an April 5, 2010 incident. OWCP File No.
xxxxxx021. This claim is not presently before the Board.
3

Dr. Behroozan’s diagnosis was illegible.

4

Appellant also provided patient home care instructions for strained hip muscle dated April 24, 2010.

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treatment until April 22, 2010. She was symptomatic for five years but did not stop work until
April 17, 2010.5 In addition, while appellant was on vacation on April 22, 2010, her left side
“got stuck” after she tried to open the rear door of her vehicle.
On January 20, 2011 OWCP’s hearing representative affirmed the July 16, 2010 decision
on the modified grounds that appellant did not sufficiently demonstrate that she was, in fact,
injured in the manner alleged.
Appellant requested reconsideration on January 28, 2011, clarifying that she fell down at
work on January 24, 2006. She provided March 2, 2011 treatment records indicating that she
was seen by a nurse practitioner for back spasms.
On April 25, 2011 OWCP denied modification of the January 20, 2011 decision. It found
that the evidence was not sufficient to establish that the employment factors occurred as alleged
and the medical evidence was insufficient to show a diagnosed condition caused by employment
events.6
Appellant requested reconsideration on April 25, 2011 and submitted new evidence. In
June 4 and 16, 2010 reports, Dr. Feldman noted complaints of left spine, buttock and leg
symptoms. On examination, he observed a positive straight leg raise test. A magnetic resonance
imaging (MRI) scan exhibited L4-5 and L5-S1 degenerative disc disease. Dr. Feldman
diagnosed degeneration of lumbar/lumbosacral intervertebral disc and displacement of lumbar
intervertebral disc without myelopathy. He remarked that appellant “says this is [a] work injury”
and “says she [was] injured at work.”7
On July 28, 2011 OWCP denied modification of the April 25, 2011 decision. It found
that appellant had not submitted evidence supporting how she sustained her injury and had not
submitted sufficient medical evidence supporting a diagnosis caused by her work.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of 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

5

The hearing transcript indicated that appellant attributed this lost time to a headache resulting from an April 5,
2010 incident, which is the basis of her traumatic injury claim. As noted, this claim is not presently before the
Board. See supra note 2.
6

OWCP indicated that, if appellant attributed her injury only to the January 24, 2006 event, there was no
evidence establishing that the claim was timely filed. See 5 U.S.C. § 8122.
7

Portions of these reports were illegible.

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the employment injury.8 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.9
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.10 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.11
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.12
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met her burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.13
ANALYSIS
The Board finds that appellant did not sufficiently establish that she sustained a left hip
and lumbar condition in the manner alleged because inconsistencies in the case record cast
serious doubt upon the validity of her factual claim.
As noted, an employee’s factual statement regarding how an occupational disease
occurred must be consistent with the surrounding facts and circumstances and her subsequent
course of action. Late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty and failure to obtain medical treatment may, if otherwise
unexplained, may refute this statement. Here, appellant specified that she injured her left hip and
lower back on January 24, 2006 when she tripped over a mailbag and fell down at work.14
8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

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

11

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

12

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

13

Betty J. Smith, 54 ECAB 174 (2002).

14

There is no indication that appellant previously filed a traumatic injury claim regarding the January 24, 2006
incident. This decision only addresses whether she has established an occupational disease claim. See 20 C.F.R.
§ 10.5(q), (ee) (sets forth OWCP’s definitions of occupational disease and traumatic injury).

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Thereafter, she was symptomatic for five years as a result of routine casing, loading and delivery
of mail, which entailed reaching, bending and carrying a satchel weighing between 35 and 70
pounds. This is inconsistent with appellant’s original assertion in the Form CA-2 that she only
became aware of her condition and its relationship to her federal employment on April 22, 2010.
Furthermore, the case record shows that she did not seek medical treatment until April 22, 201015
and did not file a claim until June 2, 2010, more than five years following the onset of
symptoms. Appellant testified at the telephonic hearing that she continued to work until
April 17, 2010. She did not address the incongruities presented by these facts, circumstances and
her own subsequent course of action, this casts serious doubt upon the validity of the claim.
Appellant has not presented a clear and consistent factual account of how and when her injury
occurred. Since she did not establish the factual component of fact of injury, it is not necessary
for the Board to consider the medical evidence with respect to causal relationship.16
The Board points out that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.17 However, 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 Board finds that appellant did not establish that she sustained an occupational disease
in the performance of duty.

15

The Board notes appellant’s account that she was off duty and vacationing on April 22, 2010 when she
experienced symptoms.
16

Bonnie A. Contreras, 57 ECAB 364 (2006).

17

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the July 28 and April 25, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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DEPARTMENT OF HEALTH & HUMAN
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SERVICES, NATIONAL INSTITUTES OF
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HEALTH, Bethesda, MD, Employer
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___________________________________________ )
A.Y., Appellant

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

Docket No. 12-1736
Issued: April 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 9, 2012 appellant filed a timely appeal from the July 9, 2012 Office of
Workers’ Compensation Programs’ (OWCP) decision which denied his claim for hearing loss.
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 in establishing that his hearing
loss is causally related to his occupational exposure to noise.
FACTUAL HISTORY
On February 28, 2012 appellant, then a 62-year-old maintenance mechanic, filed an
occupational disease claim alleging that his hearing loss was caused by factors of his federal
1

5 U.S.C. § 8101 et seq.

employment. He indicated that he became aware of the disease or illness on March 5, 2010 and
realized that it was caused or aggravated by his employment on April 12, 2010. Appellant did
not stop work.
In an undated statement accompanying his claim, appellant indicated that he was a
maintenance mechanic for the employing establishment since April 27, 2008. He stated that he
was exposed to noise amounting to eight hours of exposure per day. Appellant advised that he
used earplugs, did not have previous problems with his hearing, did not have hobbies with
exposure to loud noise and he realized that he had a decline in hearing related to his job after his
annual hearing examination on March 18, 2010.
Certain medical records accompanied the claim. They included a March 2, 2012 report
from Dr. Robert Trimble, an internist, who stated that appellant was exposed to loud noise at
work. Dr. Trimble diagnosed unspecified hearing loss and tinnitus and referred appellant to an
otolaryngologist. Also provided were audiograms dated March 5 and 6, 2012 from Janice
Nelson-Drake, an audiologist, and a report from Dr. Leslie A. Nurse, a Board-certified
otolaryngologist, who determined that appellant had moderate sensorineural loss in the right ear
in the high frequencies (6 kilowatts (k) to 8k Hertz (Hz)) and his hearing was borderline normal
for speech and for tones from 250 to 4,000 Hz. Dr. Nurse further noted that word recognition
was 92 percent at 50 decibels (dB) hearing loss. For the left ear, the audiologist determined that
appellant had borderline normal hearing for speech and tones except for a moderate “notched”
(sensorineural) loss at 4k Hz. She further noted that word recognition was 92 percent at 50 dBk
hearing loss and diagnosed bilateral high frequency hearing loss, left tinnitus. In a March 6,
2012 report, Dr. Nurse noted that the history of workplace noise exposure and diagnosed
bilateral high frequency hearing loss and left tinnitus. OWCP also received treatment notes and
an otoscopic examination from March 18, 2010 from Dr. Mary E. Gorman, a Board-certified
otolaryngologist, who noted that he was seen for left-sided tinnitus and diagnosed sensorineural
hearing loss, asymmetric.
By letters dated March 12, 2012, OWCP requested factual information from appellant
and the employing establishment. The employing establishment was asked to provide
employment records as well as a copy of all medical examinations pertaining to hearing or ear
problems, including preemployment examination and all audiograms.
On March 22, 2012 appellant submitted responses which included that the average
number of hours of noise exposure was six hours a day. He described his prior employment and
noise exposure.
In a March 29, 2012 letter, Mallory Crane, a compensation specialist with the employing
establishment, noted that appellant’s supervisor did not have any additional information
pertaining to appellant’s claim. The employing establishment also provided noise surveys dated
January 23, March 9 and 15, 2012. A March 15, 2012 noise level survey indicated that the
elevated noise levels in mechanical rooms B2A42 and the Penthouse exceeded 85 dB in select
locations and were high enough to cause noise-induced hearing loss if exposed to the source for
an extended period of time. It further noted that the elevated dB noise levels within the basement
mechanical room B2A83 were below 85 dB but above 80 dB. The employing establishment
indicated that hearing protection was required in locations where the noise levels exceeded

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85 dB. In areas below 85 dB, hearing protection was not required, but recommended. Diagrams
of the work areas were enclosed.
On April 16, 2012 OWCP referred appellant to Dr. Stephen Bane, a Board-certified
otolaryngologist, for a second opinion. In a May 2, 2012 report, Dr. Bane described appellant’s
history and examined appellant. He stated that there was mention of an audiogram in a note
from April 15, 2010 but the actual audiogram was not available. Dr. Bane explained that there
was an audiogram from March 18, 2010 which was consistent with the current audiogram. He
noted that appellant began his employment in 2008 but there was no audiogram from the
beginning of his employment. Dr. Bane noted that appellant did not have a sensorineural loss in
excess of what would normally be predicated on the basis of presbycusis. He explained that
appellant worked in a loud noise environment but his hearing was not consistent with noise
exposure. Dr. Bane determined that appellant had a normal examination and diagnosed
sensorineural hearing loss consistent with age. He explained that appellant had moderate loss at
4,000 Hz on the left consistent with presbycusis loss rather than noise exposure. Dr. Bane
advised that the frequencies above 4,000 Hz were intact, which argued against noise exposure
hearing loss. He recommended hearing protection and yearly audiograms. In a May 2, 2012
report, Dr. Bane indicated that the audiometer was calibrated on February 7, 2012. A May 2,
2012 audiogram taken on behalf of him reflected that testing at 500, 1,000, 2,000 and 3,000 Hz
showed the following dB losses: 15, 35, 25 and 20 in the right ear and 15, 30, 30 and 25 in the
left ear.
By decision dated July 9, 2012, OWCP denied appellant’s claim on the grounds that the
medical evidence was insufficient to show that his hearing loss was causally related to noise
exposure at his federal employment.
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 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.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

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condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.4
ANALYSIS
The Board finds that the case is not in posture for decision.
After appellant filed an occupational disease claim for bilateral hearing impairment,
OWCP requested additional information from the employing establishment in a March 12, 2012
letter, specifically audiograms and other pertinent medical records. While the employing
establishment responded with noise surveys, it did not provide any audiograms.
Additionally, in his May 2, 2012 report, Dr. Bane, the second opinion physician, noted
viewing audiograms. He indicated that there was a note about an April 15, 2010 audiogram, but
no audiogram. Dr. Bane advised that the March 18, 2010 audiogram was consistent with his
current audiogram. He opined that there was no audiogram for the beginning of appellant’s
employment in 2008. The Board finds that, as a result, the second opinion examiner, Dr. Bane,
based his conclusions on a limited medical file. An employer’s reluctance or refusal to submit
requested evidence relating to an employee’s hearing loss claim should not be an impediment to
a successful prosecution of the claim.5 In the present case, the type of information being sought,
namely employing establishment audiograms, is normally within the custody of said
establishment and not readily available to appellant, who should not be penalized for the
employing establishment’s failure to submit such information.6
The need for this evidence is important in view of the differing opinions of Dr. Bane, the
second opinion physician, and Dr. Nurse, the treating physician, that examined appellant or
reviewed his records. As noted, appellant’s physicians, Dr. Nurse and Dr. Gorman opined that
appellant had bilateral sensorineural hearing loss and tinnitus. Dr. Bane determined that the
hearing loss was consistent with age. As noted, the physicians did not have any earlier
audiograms to help them document the type of hearing loss changes that appellant may have
experienced during the period of his employment.
It is well established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter. While an employee has the burden to establish entitlement
4

Id.

5

See J.K., Docket No. 03-1830 (issued October 1, 2003).

6

See id.

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to compensation, OWCP shares responsibility in the development of the evidence and has the
obligation to see that justice is done.7 On remand it should again request audiograms and any
pertinent information regarding appellant’s occupational noise exposure from the employing
establishment. OWCP should obtain any audiograms the employing establishment might have
for appellant, including any audiogram from the commencement of his employment in 2008 as
well as any April 15, 2010 audiogram consistent with that referenced by Dr. Bane. Upon receipt
of such information, it should prepare a statement of accepted facts and develop the medical
evidence by referring him to an appropriate Board-certified otolaryngologist for appropriate
testing and a rationalized medical opinion regarding whether he sustained a hearing impairment
causally related to occupational noise exposure. After conducting such further development as it
may find necessary, OWCP shall issue an appropriate merit decision.
On appeal, appellant contends that he did not have hearing loss or tinnitus problems in his
family history or before he started working for the employing establishment. However, in light
of the Board’s disposition, it is premature to address these arguments at this time.
CONCLUSION
The Board finds that this case is not in posture for decision and must be remanded for
further development of the record.

7

William J. Cantrell, 34 ECAB 1233 (1983); E.J., Docket No. 09-1481 (issued February 19, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the July 9, 2012 decision of the Office of Workers’
Compensation Programs is set aside and remanded for further action consistent with this decision
of the Board.
Issued: April 18, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, HEALTH SERVICE
ADMINISTRATION, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 13-440
Issued: May 14, 2013

Case Submitted on the Record

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

JURISDICTION
On December 17, 2012 appellant, through her attorney, filed a timely appeal from the
December 14, 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 denied appellant’s request for authorization of back
surgery.
FACTUAL HISTORY
OWCP accepted that on August 26, 2011 appellant, then a 35-year-old nurse specialist,
sustained a lumbar strain/sprain when she reached for paper and felt her back “pop” at work.
1

5 U.S.C. §§ 8101-8193.

Appellant received treatment from several treating physicians for her complaints, which included
low back pain which radiated down into her right leg.2
In a November 4, 2011 report, Dr. Leonard A. Simpson, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser, stated that it would appear that appellant’s
August 26, 2011 work injury consisted of reaching for paper and feeling a “pop” in her back. It
represented an aggravation superimposed upon preexisting lumbar degenerative disc disease and
aggravation of an annular tear at L5-S1. Dr. Simpson noted that his review of the records
indicated a history of back pain commencing in 1999 and stated that the August 26, 2011
incident “would represent most likely an aggravation superimposed on preexisting lumbar
degenerative disc disease and most likely preexisting lumbar annular tear.”3
In a February 16, 2012 report, Dr. Paul Gause, an attending Board-certified orthopedic
surgeon, stated that appellant continued to have a significant buttock and leg pain associated with
L5 nerve root irritation.4 He indicated that, given the foraminal and far lateral component of the
disc herniation, he thought that the only way to adequately decompress the disc was either a
complete facetectomy on one side which would leave appellant unstable and require arthrodesis
or a combined anterior/posterior procedure. Dr. Gause stated that the anterior procedure would
allow for much better restoration of disc space height and treat the foraminal stenosis and,
therefore, recommended that procedure as well as posterior decompression and fusion. Given
appellant’s prolonged symptoms going on for six months, and lack of considerable conservative
care, she elected to proceed with surgery. Dr. Gause recommended an L5-S1 anterior lumbar
interbody fusion and L5-S1 posterior decompression and fusion. Appellant submitted a request
for spinal surgery to OWCP.5
In order to obtain an independent assessment of whether appellant sustained other lumbar
spine condition other than a strain as a result of the August 26, 2011 work injury and whether the
requested surgery was appropriate and necessary for her work-related lumbar spine condition,
OWCP referred appellant to Dr. Ronald M. Lampert, a Board-certified orthopedic surgeon, for a
second opinion evaluation. Dr. Lampert was provided with the factual and medical evidence
from the case file and performed an examination on April 25, 2012.
In an April 25, 2012 report, Dr. Lampert provided the diagnosis of lumbar sprain/strain
and stated that he found no evidence of any residuals of the lumbar sprain/strain. He also stated
that there was no evidence of any aggravation of the preexisting degenerative changes of
appellant’s lumbar spine. Dr. Lampert posited that appellant’s condition of degenerative arthritis
2

Appellant first reported pain radiating into her right leg on or about September 4, 2011.

3

Dr. Simpson did not provide an explanation for his opinion and OWCP did not expand appellant’s accepted
conditions at this time.
4

Dr. Gause indicated that September 22, 2011 magnetic resonance imaging (MRI) testing showed that there was
degenerative disc disease with modic changes at L5-S1. There was a lateral appearing disc protrusion causing rightsided displacement of the L5 root in the far lateral zone.
5

In a March 23, 2012 report, Dr. Gause indicated that appellant continued to be symptomatic with respect to L5
nerve root symptoms.

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of the lumbar spine preexisted the August 26, 2011 work incident, as the medical evidence of file
showed that there was a history of a nonemployment-related back injury in 1999 and problems
that necessitated treatment of her low back. He found no evidence to suggest that the requested
surgical procedures would be related to the August 26, 2011 work injury. Dr. Lampert explained
that appellant did not have residuals from the August 26, 2011 injury and noted that, in the
September 22, 2011 MRI scan report, there was even some question as to whether the disc
protrusion at L5-S1 level was irritating the L5 nerve root. He found that an electromyogram
(EMG) of the lower extremities was normal indicating no pathology of the nerves exiting from
the low back. Further, Dr. Lampert opined that based on the SOAF appellant’s low back
symptoms would have resolved in six weeks. Therefore, there were no objective findings to
support appellant’s subjective complaints.6
In a June 8, 2012 decision, OWCP denied appellant’s request for authorization of back
surgery finding that the weight of the medical evidence rested with the opinion of Dr. Lampert,
the second opinion physician. It noted that several physicians had suggested that appellant
sustained more than a lumbar strain/sprain on August 26, 2011, but their opinions did not
provide adequate medical rationale in support of their conclusions.7
In a July 27, 2012 report, Dr. Susan Sorosky, an attending Board-certified physical
medicine and rehabilitation physician, stated that she began treating appellant on September 30,
2011 for acute pain which began on August 26, 2011 when she reached around in a twisting
motion to grab a form at work and felt a pop in her lower back. Dr. Sorosky noted that appellant
reported the onset of right leg pain approximately one week later. She opined that the history,
findings on examination and diagnosed test results were consistent with L5 radiculopathy.
Dr. Sorosky opined that appellant’s current diagnosis was a direct result of the August 26, 2011
work injury noting that she was pain free prior to the incident but felt a pop in the right side of
her back and a week later right leg pain developed. She indicated that lifting/twisting was classic
for causing discogenic pathology, including right-sided disc protrusion. Dr. Sorosky opined that
there was no nonindustrial or preexisting disability as appellant had no significant low back pain
prior to the injury and only one self-limited episode of low back pain in 1999 which was
nonradicular in nature.
Appellant requested a telephone hearing with an OWCP representative. During the
October 10, 2012 hearing, she described the course of her back condition describing some
problems she had prior to August 26, 2011. Appellant’s attorney argued that surgery should be
authorized because she actually sustained a more severe back injury on August 26, 2011 than had
been accepted.

6

An October 4, 2011 EMG report from Dr. John Sollenberger, an osteopath, showed there was no
electrodiagnostic evidence of right lumbar radiculopathy, lumbosacral plexopathy or other peripheral nerve
pathology affecting the right lower extremity.
7

In a July 6, 2012 letter, OWCP advised appellant that it proposed to terminate her wage-loss compensation and
medical benefits based on the opinion of Dr. Lampert. The record, at the time the appeal was filed on December 17,
2012, did not contain a final decision of OWCP regarding this matter and it is not currently before the Board.

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In a December 14, 2012 decision, an OWCP hearing representative affirmed the June 8,
2012 decision, finding that the weight of the medical evidence regarding appellant’s need for
surgery due to a work-related condition rested with the opinion of Dr. Lampert.
LEGAL PRECEDENT
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the
amount of the monthly compensation.”8
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.9 The only limitation on OWCP’s authority is
that of reasonableness.10 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.11
In order to be entitled to reimbursement of medical expenses, it must be shown that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition.12 Proof of causal relationship in a case such as this must include supporting
rationalized medical evidence.13
ANALYSIS
OWCP accepted that on August 26, 2011 appellant sustained a lumbar strain/sprain when
she reached for paper and felt her back “pop” at work. Appellant later requested authorization
for low back surgery, including L5-S1 anterior lumbar interbody fusion and L5-S1 posterior
decompression and fusion.
The Board finds that OWCP properly denied appellant’s request for authorization for
surgery. OWCP properly relied on the well-rationalized report of Dr. Lampert, a Board-certified
orthopedic surgeon serving as a second opinion physician. Dr. Lampert provided an April 25,
2012 report in which he diagnosed lumbar sprain/strain and stated that he found no evidence to
indicate any residuals of the lumbar sprain/strain. He also noted that there was no evidence to
indicate any aggravation of the preexisting degenerative changes of the lumbar spine.
8

5 U.S.C. § 8103.

9

Vicky C. Randall, 51 ECAB 357 (2000).

10

Lecil E. Stevens, 49 ECAB 673, 675 (1998).

11

Rosa Lee Jones, 36 ECAB 679 (1985).

12

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

13

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

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Dr. Lampert posited that appellant’s condition of degenerative arthritis of the lumbar spine
preexisted the August 26, 2011 work incident as the medical evidence on file showed that there
was a history of a back injury in 1999 and problems that necessitated treatment of her low back.
He stated that he found no evidence to indicate that any of the requested surgical procedures
would be indicated as they related to the August 26, 2011 work injury. Dr. Lampert explained
that appellant did not have residuals from the August 26, 2011 work injury and noted that his
opinion was supported by diagnostic testing showing normal results with respect to the reported
right leg radiculopathy.
Appellant submitted a February 16, 2012 report in which Dr. Gause, recommended that
she undergo L5-S1 anterior lumbar interbody fusion and L5-S1 posterior decompression and
fusion. Dr. Gause explained why he felt that this surgery would provide relief to appellant.
Although he suggested that appellant’s right leg radicular symptoms were related to the
August 26, 2011 work injury, he did not provide adequate medical rationale in support of this
opinion other than noting that appellant did not seem to exhibit such symptoms prior to early
September 2011. However, the Board has held that the fact that a condition manifests itself or
worsens during a period of employment14 or that work activities produce symptoms revelatory of
an underlying condition15 does not raise an inference of causal relationship between a claimed
condition and employment factors. Appellant also submitted reports, including a report dated
July 27, 2012 report, in which Dr. Sorosky, an attending Board-certified physical medicine and
rehabilitation physician, posited that she sustained a more severe injury on August 26, 2011 than
a lumbar strain/sprain because appellant had been pain free prior to the incident. However,
Dr. Sorosky did not provide adequate medical rationale in support of this opinion.16
The Board has held the fact that a condition arises after an injury and was not present
before an injury is not sufficient to support causal relationship.17
For these reasons, the Board finds that OWCP properly exercised its discretion to deny
appellant’s request for authorization for back surgery.
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 denied appellant’s request for authorization of back
surgery.
14

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

15

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

16

On appeal, counsel argued that OWCP procedure required that appellant’s spinal surgery request first be
submitted to an OWCP medical adviser for an opinion. However, OWCP procedures allow for referral to either a
second opinion physician or an OWCP medical adviser in such situations. See Federal (FECA) Procedure Manual,
Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.10c (September 2010).
17

Michael S. Mina, 57 ECAB 279 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the December 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 14, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 21-1131
Issued: March 2, 2022

Case Submitted on the Record

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

JURISDICTION
On July 20, 2021 appellant, through counsel, filed a timely appeal from a May 6, 2021 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 Boa rd notes that, following the May 6, 2021 decision, appellant submitted additional evidence to OWCP.
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 a recurrence of
disability, commencing July 30, 2018, causally related to her accepted June 15, 2017 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 15, 2017 appellant, then a 34-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on that date she twisted her left ankle as she stepped out of her mail
truck while in the performance of duty. On July 5, 2017 OWCP accepted sprain of the
calcaneofibular ligament of the left ankle. 5 On January 5, 2018 it expanded the acceptance of
appellant’s claim to include strain and laceration of muscles and tendons of peroneal muscle group
of the lower left leg and laceration of muscle and tendon of the peroneal muscle group at the lower
left leg. Appellant worked intermittent modified-duty work until January 11, 2018 when Dr. John J.
Stapleton, a podiatrist, performed authorized repair of a left peroneal brevis split tear and fibular
groove deepening. OWCP paid her wage-loss compensation on the supplemental rolls from
January 20 through April 13, 2018. Appellant returned to full-time, modified-duty work on
April 17, 2018.6
A July 24, 2018 magnetic resonance imaging (MRI) scan of the left ankle revealed
postsurgical changes, no other tendon or ligament injury, and a stable osteo chondral injury along
the posterior dome of the talus.
In a July 25, 2018 progress note, Dr. Stapleton noted that appellant had twisted her left ankle
on June 12, 2018 and subsequently had persistent left ankle pain that was increasing in intensity.
Left ankle examination demonstrated tenderness over the peroneal tendon, laxity of the peroneal
tendon with hypermobility, instability to the contralateral ankle, and mild edema. Dr. Stapleton
diagnosed acute left ankle pain, osteochondral defect, and tendinosis. In an unsigned
correspondence of even date, he noted that appellant was under his care and advised that she should
not work due to medical illness.
In a July 30, 2018 report, Dr. Daniel Fuchs, an orthopedic surgeon, noted the history of
appellant’s June 15, 2017 work injury. He described her medical and surgical history, and noted
4

Docket No. 19-1456 (issued July 14, 2020).

5

On November 24, 2017 appellant filed a Form CA-1 alleging that on that date she twisted her left ankle as she
stepped off the sidewalk while in the performance of duty. OWCP assigned OWCP File No. xxxxxx563. By decision
dated January 8, 2018, it denied appellant’s traumatic injury claim, finding that the evidence of record was insufficient
to establish that the injury and/or events occurred as she described. OWCP explained that she had not submitted factual
evidence to support that she experienced a work-related injury on November 24, 2017.
6

Appellant signed an offer of modified limited-duty assignment on April 17, 2018. The duties of the position were
one to two hours each casing mail, administrative duties, and working undeliverable mail with two hours
delivering/carrying mail. Appellant was restricted to two hours each, standing, walking, and delivering.

2

her complaint of persistent pain and swelling in the area of the peroneal tendons status post tendon
repair, and that she had a mild aggravation the previous month when she rolled her left ankle.
Dr. Fuchs indicated that a July 2018 MRI scan demonstrated a small posterolateral osteochondral
lesion of the talar dome. Findings on left ankle examination included intact sensation to light touch,
a well-healed surgical incision of the peroneal tendons, mild swelling, and tenderness to palpation.
Dr. Fuchs diagnosed left lower extremity peroneal tendinitis and recommended immobilization in a
controlled ankle movement (CAM) boot and physical therapy. He advised that appellant was
disabled from work. On a form report of same date Dr. Fuchs diagnosed left peroneal tendon tear,
recommended a CAM boot, weight bearing as tolerated, and advised that appellant could return to
modified sedentary work.
On July 31, 2018 appellant filed a notice of recurrence (Form CA-2a). She indicated that
the recurrence began on July 18, 2018 due to left ankle pain and weakness, and that it was causally
related to her accepted June 15, 2017 employment injury. Appellant stopped work on July 30, 2018.
By decision dated October 19, 2018, OWCP denied appellant’s claim, finding that she had
not sustained a recurrence of disability commencing July 30, 2018 causally related to her June 15,
2017 employment injury.
On October 31, 2018 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
In procedure notes dated November 5, 2018 and January 7, 2019, Dr. Stapleton treated
appellant in follow up. He opined that her current condition was clearly related to the initial work
injury, noting that, after she had repair of her peroneal brevis tendon, her symptoms continued and
were secondary to tendinosis and scarring from this repair and that she require d revision surgery.
On March 4, 2019 Dr. Stapleton noted that appellant was doing well, but had a complaint of mild,
intermittent pain over the medial aspect of her left ankle, worsened with extended activity, and that
ankle range of motion was still limited due to pain. He diagnosed status post-surgery and a lowgrade osteochondral defect. Dr. Stapleton reiterated his opinion that appellant’s current condition
was due to the June 15, 2017 employment injury.
In an April 10, 2019 report, Dr. Mitchell E. Cooper, a Board-certified orthopedic surgeon,
noted appellant’s complaint of a two-year history of left ankle pain with current complaints of lateral
midfoot pain, aggravated by direct pressure and weight bearing. He noted the September 27, 2018
surgery and that appellant reported that she had twisted her ankle the previous week and had
increased pain since that time. Dr. Cooper reviewed the July 24, 2018 left ankle MRI scan and
advised that he was not sure that appellant was symptomatic from osteochondritis dissecans.
By decision dated May 29, 2019, OWCP’s hearing representative affirmed the October 19,
2018 decision.
On June 25, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 14, 2020, the Board set aside the May 29, 2019 decision and remanded the case for further
medical development. The Board found Dr. Stapleton’s opinion sufficient to require further

3

development of the medical evidence. The Board further instructed OWCP to administratively
combine OWCP File No. xxxxxx157 and File No. xxxxxx563. 7
OWCP received additional evidence. On May 24, 2019 Dr. Cooper treated appellant in
follow up for left ankle pain, which she attributed to an injury in June 2017. He noted that she was
status post peroneal brevis to longus transfer with tenodesis performed on September 27, 2018.
Dr. Cooper diagnosed persistent left ankle pain, deep ankle pain slightly lateral, and small
osteochondritis dissecans (OCD) post lateral talus. He continued appellant’s work restrictions.
On March 2, 2021 OWCP referred appellant, the case record and a SOAF for a second
opinion examination to Dr. Noubar A. Didizian, a Board-certified orthopedic surgeon. It requested
that Dr. Didizian evaluate appellant’s current disability status in connection with the June 15, 2017
date of injury and need for treatment medically connected to this injury. 8
In a March 18, 2021 report, Dr. Didizian discussed appellant’s factual and medical history
and reported physical examination findings. Examination of both ankles revealed no synovitis,
effusion, or crepitation, full range of motion of both ankles, intact peripheral pulses, no atrophic
changes, intact sensation in both ankles, reflexes present and equal, and negative pivot test of the
left ankle. Dr. Didizian diagnosed sprain of the calcaneofibular ligament, left ankle, strain of
muscles and tendons of the peroneal muscle group at lower left leg, laceration of the muscles and
tendons of the peroneal muscle group, and osteochondritis dissecans. He noted that the June 15,
2017 employment injury did not cause or aggravate an additional left ankle condition causing
surgery on September 27, 2018 and did not cause recurrent employment-related disability.
Dr. Didizian noted that appellant currently worked as a postmaster with no difficulty and opined
that she would not be able to go back to her original job because of multiple surgeries and ongoing
symptomology. He indicated that appellant continued to have residuals of her work-related injury
and was not fully recovered. In a work capacity evaluation (Form OWCP-5c), Dr. Didizian noted
appellant could perform light-duty work with restrictions on standing, walking, pushing, pulling,
and lifting.
By decision dated May 6, 2021, OWCP expanded the acceptance of appellant’s claim to
include osteochondritis dissecans of the left ankle.
By a second decision dated May 6, 2021, OWCP denied appellant’s recurrence claim,
finding that she did not sustain a recurrence of disability commencing July 30, 2018 causally related
to her June 15, 2017 employment injury. It found that the weight of the medical evidence rested
with Dr. Didizian, the OWCP referral physician.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
7

OWCP administratively combined OWCP File No. xxxxxx157 and OWCP File No. xxxxxx563, with the former
serving as the master file, in accordance with the Board’s decision dated July 14, 2020.
8

OWCP received additional evidence. Appellant attended physical therapy treatment on January 14 through
23, 2020. Also submitted was a September 9, 2020 pathology report for a thigh biopsy.

4

which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment. 9
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 10 Where no such rationale is present,
the medical evidence is of diminished probative value.11
OWCP’s procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings. That
change must result from a previous injury or occupational illness rather than an intervening injury
or new exposure to factors causing the original illness. It does not include a condition that results
from a new injury, even if it involves the same part of the body previously injured.12
ANALYSIS
The Board finds that this case is not in posture for decision.
Initially, the Board notes that it is unnecessary to consider the evidence appellant submitted
prior to the issuance of OWCP’s May 29, 2019 decision, which was considered by the Board in its
July 14, 2020 decision. Findings made in prior Board decisions are res judicata absent further merit
review by OWCP under section 8128 of FECA. 13
In a March 18, 2021 report, second opinion physician, Dr. Didizian, conducted an
examination of both ankles and reported no abnormalities. He diagnosed sprain of the
calcaneofibular ligament, left ankle, strain of muscles and tendons of the peroneal muscle group at
lower left leg, laceration of the muscles and tendons of the peroneal muscle group, and
osteochondritis dissecans. Dr. Didizian noted that the June 15, 2017 employment injury did not
cause or aggravate an additional left ankle condition resulting in surgery on September 27, 2018,
and did not cause recurrent employment-related disability. He noted that appellant currently worked
as a postmaster with no difficulty and opined that she would not be able to go back to her original
job because of multiple surgeries and ongoing symptomology. Dr. Didizian opined that appellant
continued to have residuals of her work-related injury and was not fully recovered. In a Form

9

20 C.F.R. § 10.5(x).

10

See J.S., Docket No. 19-1035 (issued January 24, 2020).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); D.T., Docket
No. 19-1064 (issued February 20, 2020).
13

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

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OWCP-5c, he noted that appellant could perform light-duty work with restrictions on standing,
walking, pushing, pulling, and lifting.
Dr. Didizian, however, provided only conclusory responses to the questions posed by
OWCP with regard to whether appellant sustained a recurrence of disability on July 30, 2018 due
to a material change or worsening of her June 15, 2017 employment injury; whether she sustained
an aggravation of her accepted injury; and/or whether the September 27, 2018 left ankle surgery
was related to her work injury.14 The Board has held that a report is conclusory and of limited
probative value regarding causal relationship if it does not contain medical rationale. 15 As
Dr. Didizian did not provide a rationalized medical opinion explaining how the claimed recurrence
was causally related to the accepted June 15, 2017 employment injury, his report was insufficient
to establish causal relationship.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. 16
While the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is done. 17
Accordingly, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do so in a manner that will resolve the relevant issues in the case. 18
On remand OWCP shall provide an updated SOAF request a supplemental report from
Dr. Didizian thoroughly addressing the issues and providing medical rationale in support of his
opinion. Following any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

See D.M., Docket No. 19-1181 (issued December 2, 2019). See also P.R., Docket No. 19-1313 (issued August 11,
2020); see also S.S., Docket No. 18-0397 (issued January 15, 2019).
15

See R.W., Docket No. 19-1733 (issued April 13, 2021); D.W., Docket No. 18-1139 (issued May 21, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017).
16

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
17

Id.; see also Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

18

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the May 6, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings co nsistent
with this decision of the Board.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.H., Appellant
and
DEPARTMENT OF THE ARMY, WALTER
REED ARMY MEDICAL CENTER,
Washington, DC, Employer
__________________________________________

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Appearances:
Charles M. Johnson, for the appellant
Office of Solicitor, for the Director

Docket No. 09-181
Issued: August 17, 2009

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 October 27, 2008 appellant filed a timely appeal from a December 19, 2007 decision
of the Office of Workers’ Compensation Programs denying her traumatic injury claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that she sustained an injury on November 1,
2007 in the performance of duty, as alleged.
On appeal, appellant’s representative contends that her absence from November 1
through 20, 2007 should be covered by continuation of pay and that she should be reimbursed for
any out-of-pocket medical expenses.
FACTUAL HISTORY
On November 7, 2007 appellant, then a 39-year-old medical technologist, filed a
traumatic injury claim (Form CA-1). Her supervisor reported that on November 1, 2007

appellant was exposed to biohazardous material when she was splashed in the face and eyes due
to a detached instrument waste line. Appellant opted for postexposure human immunodeficiency
virus (HIV) prophylaxis as part of the routine follow-up, which caused nausea and prevented her
from working. A coworker stated that he witnessed the splash and saw appellant run to the sink
holding her face.
On December 19, 2007 the Office notified appellant of the deficiencies in her claim and
requested that she provide additional evidence.
On November 4, 2007 appellant sought medical treatment from Dr. Henry Chilin Chu,
Board-certified in emergency medicine, for nausea and vomiting. She reported that she was
exposed to contaminated blood products and started prophylactic treatment. Two days prior,
appellant started recurrent vomiting with intractable symptoms. Dr. Chu diagnosed intractable
vomiting with nausea, loss of appetite, chills and abdominal pain.
In a medical report dated November 14, 2007, Dr. Robert N. Wood-Morris, Boardcertified in internal medicine and infectious disease, stated that two weeks prior appellant’s face
was splashed with fluid from a blood analyzer machine. The fluid was a composite of blood
products from multiple persons and machine tubing flush fluid. Dr. Wood-Morris stated that the
risk of HIV or hepatitis C virus (HCV) exposure was exceptionally low, although not zero
percent, and that he advised preventative treatment. Appellant reported that the treatment was
causing nausea and fatigue and that she was missing work due to these symptoms. She did not
take the last two doses and the symptoms improved. Dr. Wood-Morris opined that appellant did
not tolerate the kaletra and truvada regime well and missed work for two weeks. He stated that
given the difficulty of appellant’s experience, he would not continue the treatment.
In a November 16, 2007 medical report, Dr. Wood-Morris stated that on November 1,
2007 appellant experienced a work-related exposure to blood products warranting initiation of
postexposure prophylaxis (PEP). Appellant reported difficulties tolerating the procedure and that
the symptoms were so severe that she missed two weeks of work. Dr. Wood-Morris stated that
the medicine was stopped and that he anticipated a resolution of symptoms shortly.
Appellant returned to full duty on November 21, 2007.
By decision dated December 19, 2007, the Office found that the November 1, 2007 work
event occurred as alleged, but denied appellant’s claim on the grounds that she did not submit
sufficient medical evidence containing a diagnosis that could be connected to the events.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).

2

the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
ANALYSIS
The Office accepted that on November 1, 2007 appellant was splashed in the face with
body fluid from a blood analyzing instrument and chose to undergo routine HIV prophylaxis.
The issue is whether appellant sustained a causally related injury.
Appellant submitted a November 4, 2007 medical report from Dr. Chu, who reported that
appellant was exposed to contaminated blood products and started prophylactic treatment.
Dr. Chu diagnosed intractable vomiting, nausea and vomiting, vomiting, loss of appetite, chills
and abdominal pain. Further, in a November 14, 2007 medical report, Dr. Wood-Morris stated
that appellant’s face was splashed with fluid representing a composite of blood products from
multiple persons. He stated that the risk of HIV/HCV exposure was exceptionally low but that
he advised preventative treatment. Appellant complained that the preventative treatment was
causing nausea and fatigue. Dr. Wood-Morris opined that appellant did not tolerate the kaletra
and truvada regime well and that appellant should not continue the treatment. Similarly, in a
November 16, 2007 medical report, he maintained that appellant experienced a work-related
splash of blood products warranting prophylactic treatment. Appellant reported difficulties
tolerating the procedure and that the severity of symptoms caused her to miss work.
Dr. Wood-Morris stated that the treatment was stopped and that he anticipated a resolution of the
symptoms soon.
Section 10.303 of the Office’s regulations provide that simple exposure to a workplace
hazard, such as an infectious agent, does not constitute a work-related injury entitling an
employee to medical treatment under the Act unless the employee has sustained an identifiable
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

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

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

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injury or medical condition as a result of that exposure.8 Thus, the fact that appellant was
exposed to potentially contaminated body fluid is, in itself, insufficient to establish that she
sustained an injury. For her claim to be compensable, she must establish, with sufficient medical
evidence, that she sustained an identifiable injury.
The Board finds that none of the medical evidence is sufficient to establish that appellant
sustained an identifiable injury as a result of her exposure to body fluids. In the November 4,
2007 medical report, Dr. Chu diagnosed intractable vomiting with nausea, loss of appetite, chills
and abdominal pain. However, these diagnoses are better characterized as symptoms and do not
constitute a firm medical diagnosis.9 Similarly, in the November 14 and 26, 2007 medical
reports, Dr. Wood-Morris reported that appellant was experiencing severe symptoms, including
nausea and fatigue, however, he did not identify a specific, compensable injury. Therefore, the
Board finds that appellant did not establish that she sustained an identifiable injury as a result of
her work-related exposure on November 1, 2007.10
The Board notes that the Office regulations and procedure manual provide that preventive
treatment can be authorized where an employee experiences complications of preventive
measures which are provided or sponsored by an agency, such as an adverse reaction to
prophylactic immunization, or where there is actual or probable exposure to a known
contaminant due to an injury, including appropriate measures where exposure to HIV has
occurred.11 However, the Board has held that the Office can only authorize preventive treatment
after an injury has been established.12 As noted above, appellant did not establish that she
sustained an injury as a result of the exposure, thus, the provision does not apply in the instant
case.
The Board further notes that the Office manual provides special procedures for high risk
employment where an employee is routinely presented with situations which may lead to
infection by contact with animals, human blood, bodily secretions and other substances. The
Office procedure manual provides:
“a. Physical Injury and Prophylactic Treatment.
For claims based on
transmission of a communicable disease where the means of transmission and the

8

20 C.F.R. § 10.303.

9

See Deborah L. Beatty, 54 ECAB 340 (2003). See also Larry M. Leudtke, Docket 03-1564 (issued September 2,
2003) (where the Board found that the diagnoses of dizziness, headache, light headedness and anxiety described
symptoms and did not constitute a firm diagnosis of a medical condition).
10

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006). See also Deborah L. Beatty, supra
note 9.
11

20 C.F.R. § 10.313(a); Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies,
Chapter 3.400.7 (April 1992).
12

See C.M., Docket 06-2174 (issued April 18, 2007) (where the Board noted that appellant would not be afforded
coverage under Chapter 3.400.7(a)(2) of the Office’s procedure manual, which only affords preventive care once
there is an injury involving actual or probable exposure).

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incubation period are medically feasible, the CE [claims examiner] should do the
following:
(1) If the source of infection is a known or probable carrier of the disease,
the CE should accept the case for the physical injury involved and authorize
prophylactic treatment (see FECA PM 3-400.7a).
(2) If the source of infection is unidentified or the source’s status is unknown,
the CE should accept the claim for the physical injury involved.
Prophylactic treatment for the underlying disease will not be an issue, since
a known carrier is not involved.”13
In the case of N.S.,14 the Board found that the employee was not required to establish
with medical evidence that her exposure to Hepatitis C, resulting from being struck by a
contaminated needle during her employment as a nurse, caused a personal injury. Rather,
because her employment was considered high risk, the evidence only had to establish that the
source of the infection was a known or probable carrier of the disease.
Although appellant’s employment as a medical technologist in a hospital would be
considered high risk due to her routine potential exposure to infection, Board precedent is
distinguishable from the N.S. case. Here, appellant’s claim is not based on the transmission of a
communicable disease but, rather, due to side effects caused by treatment due to potential
exposure. Thus, the Board finds that special procedures for high-risk employment are not
applicable in this case.15
Finally, the Board notes appellant’s representative’s contention on appeal that
continuation of pay should be granted for the period November 1 through 20, 2007 and that
medical expenses should be reimbursed. As the Office has not rendered a decision regarding this
issue, it is not properly before the Board on this appeal.16

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, High Risk Employment, Chapter 2.805.8 (October 1995).

14

59 ECAB ___ (Docket No. 07-1652, issued March 18, 2008)

15

See Lillian A. Ferraro, Docket No. 04-1957 (issued December 17, 2004) (where the Board found that appellant,
a dental hygienist, did not establish that she sustained a compensable injury due to being struck by a dirty dental
instrument despite claims that she became sick from the postexposure HIV prophylactic treatment. The Board
specifically held that appellant did not submit any medical evidence containing a diagnosed condition related to the
incident).
16

See 20 C.F.R. § 501.2(c), which provides that the Board’s jurisdiction is limited to final decisions issued by the
Office under the Act. The Board does note that section 10.205(a) of the Office’s regulations, 20 C.F.R. § 10.205(a),
describes the criteria for a claimant to become eligible to quality to continuation of pay, one of which includes that
an individual must: “(1) [h]ave a ‘traumatic injury’ … which is job related and the cause of the disability, and/or the
cause of lost time due to the need for medical examination and treatment.” Thus, the Board has held that, if a
claimant did not sustain an employment-related traumatic injury, the individual was not entitled to continuation of
pay. See e.g., Carol A. Lyles, 57 ECAB 265 (2005).

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CONCLUSION
The Board finds that appellant did not establish that she sustained an injury on
November 1, 2007 in the performance of duty due to exposure to potentially contaminated body
fluids.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

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IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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