United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Savannah, GA,
Employer
__________________________________________

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

Docket Nos. 14-1350 &
14-1974
Issued: October 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 5, 2013 and May 28, 2014 appellant filed timely appeals from an
October 22, 2013 nonmerit decision and an April 3, 2014 merit decision of the Office of
Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues in this case are: (1) whether OWCP properly determined that appellant
abandoned her request for a hearing; and (2) whether appellant met her burden of proof to
establish a traumatic injury in the performance of duty on November 7, 2012.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she did not receive any correspondence concerning a
telephonic hearing and that eyewitness testimony was not taken into account on the initial
adjudication of her claim.
FACTUAL HISTORY
On March 2, 2013 appellant, then a 50-year-old postal support employee, filed a
traumatic injury claim alleging that on November 5, 2012 she sustained an injury to her right
elbow when she hit her elbow on an iron bin after pulling mail out of a slot. She provided a
witness statement in support of her claim, who recalled that “on the night in question” she
showed him a bruise on her right arm that she had received while sweeping mail from a barcode
sorter machine. The employing establishment controverted appellant’s claim, contending that
she was not on duty at the time of the incident and that she had not provided an objective, wellreasoned medical rationale demonstrating that her condition was causally related to factors of her
employment.
On February 17, 2013 Dr. Thom Decker, a Board-certified radiologist, examined x-rays
of appellant’s right elbow. He noted no fracture, dislocation or other significant osseous
abnormality and stated his assessment of a normal right elbow.
In a statement dated March 12, 2013, Lisa A. Syse, a supervisor at the employing
establishment, noted that appellant alleged that she notified a supervisor, Ardis Pickett, of the
incident immediately after it occurred. She stated that it was the policy of the employing
establishment that reported incidents be entered into “EHS” immediately and “Safety” notified
within 24 hours. Ms. Syse noted that Mr. Pickett had retired on December 31, 2012 and that
appellant had not notified any other supervisor about the incident. She stated that “clock rings”
confirmed that appellant was not on duty on the date of the alleged work-related incident.
In a letter dated March 14, 2013, OWCP advised appellant that she had not submitted
sufficient evidence to establish that she actually experienced the incident alleged to have caused
injury. Further, that appellant had been diagnosed by a physician with a condition related to the
alleged injury, that she was within the performance of duty or that a physician had provided an
opinion as to how her injury resulted in the condition diagnosed. OWCP requested additional
factual evidence. It afforded appellant 30 days to submit this additional evidence. No response
was received.
By decision dated April 23, 2013, OWCP denied appellant’s claim. It found insufficient
factual evidence to establish that the November 5, 2012 incident occurred as alleged, explaining
that the employing establishment had indicated that she was not at work on November 5, 2012.
By letter dated April 14, 2013, received by OWCP on April 25, 2013, appellant
responded to OWCP’s inquiries. She stated that, beginning the week of November 3, 2012, she
worked at the employing establishment’s processing and distribution center, sweeping the mail
in an automation area. As appellant swept the mail, she reached up to pull mail out of a slot,
brought her right arm down and hit her elbow on an iron bin. She stated that afterward her right
elbow hurt badly because she had hit a bone. Appellant noted that she immediately told
Vernon B. Williams that she had hit her arm and that it hurt. Mr. Williams told her to inform a

2

supervisor. Appellant stated that she told Mr. Pickett about the incident, who asked if she was all
right. She responded that it hurt, but that it was probably just bruised. Appellant stated that she
had no similar conditions prior to the date of injury and did not sustain any other injury between
this date and the date it was first reported to a supervisor. She attached another statement from
Mr. Williams, which noted that she had shown him a bruise on her arm that she had received
while working as a postal employee “on the night in question.”
In a diagnostic report dated April 17, 2013, Dr. Matthew Dixon, a Board-certified
radiologist, examined the results of a magnetic resonance imaging (MRI) scan of appellant’s
right elbow. He stated his impression of a small partial tear of the extensor carpi radialis brevis
tendon origin, with no other significant findings. Appellant also submitted unsigned discharge
notes dated February 17, 2013.
In a duty status report dated April 20, 2013, Dr. Michael Adams, a Board-certified
surgeon, recommended work restrictions for appellant of no more than 5 pounds of continuous or
10 pounds of intermittent lifting; no continuous sitting; no continuous standing; no continuous
walking; no more than one to two hours of kneeling per day; no more than four to six hours of
bending/stooping per day; no more than one to two hours of twisting per day; no more than two
to eight hours of pushing/pulling per day; no continuous simple grasping; no more than two to
six hours of fine manipulation per day; and no more than two to four hours of reaching above the
shoulder per day. He noted that she had a tear of the extensor carpi brevis tendon and under the
heading of “diagnosis due to injury,” he wrote “contusion” and “tear of extensor carpi brevis.”
Dr. Adams advised appellant to return to work on April 20, 2013. A supervisor noted that her
injury occurred when her right elbow slammed into a steel shelf and listed appellant’s date of
birth under the heading “date of injury.”
On April 30, 2013 appellant requested a telephonic hearing before an OWCP hearing
representative. In an attached statement dated April 26, 2013, she noted that, while she injured
her right elbow the week of November 3, 2013, she was not sure of the exact date. Appellant
stated that she did report it to her supervisor, Mr. Pickett and that she told him she thought it was
just bruised at that time. She explained that her “paperwork was receive[d] late due to” her
physicians waiting for an MRI scan to be delivered.
OWCP informed appellant that the hearing would be held on September 23, 2013 and
provided the, time, telephone number and passcode for the telephonic hearing. This notice was
sent to her last known address by letter dated August 7, 2013.
By decision dated October 22, 2013, OWCP determined that appellant had abandoned her
request for a hearing because she had failed to appear and had not explained her absence.
By letter dated October 30, 2013 and received by the Board on November 5, 2013,
appellant appealed OWCP’s decision of October 22, 2013, contending that she never received a
letter informing her of her hearing.2

2

This appeal was docketed under case number 14-1974 on September 12, 2014.

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Appellant requested reconsideration of OWCP’s April 23, 2013 decision by form letter
dated November 5, 2013 and received by OWCP on December 2, 2013. She attached a narrative
statement dated November 15, 2013, in which she noted that she did not know the exact date of
her injury, but that it was during the week of November 3, 2012. Appellant’s description of the
incident and of informing her supervisor was consistent with her prior accounts. She stated that,
afterward, her elbow hurt every day and that it continued to hurt months later. In February 2013,
appellant went to the emergency room, where x-rays were taken and she was told to see her
regular physician. She noted that she saw Dr. Adams, who sent her for more x-rays and
scheduled another appointment. Appellant also attached another statement from Mr. Williams
dated November 14, 2013. Mr. Williams stated that the week of November 3, 2012 she showed
him a bruise on her arm that she received while working at the employing establishment. He told
her to notify her supervisor, which she did. Mr. Williams noted that, in the following days,
appellant told him that her arm was still in pain and that it was worse when she attempted to lift
objects.
By decision dated January 3, 2014, OWCP reviewed the merits of appellant’s case on
reconsideration, but did not modify its prior decision. It found that she had not provided an exact
date for her injury.
Appellant again requested reconsideration by form letter dated January 23, 2014 and
received on January 29, 2014. With her request, she attached a statement in which she noted that
she had made a mistake regarding her date of injury. Appellant stated that she had thought
November 5, 2012 was a Thursday, but that in fact November 7, 2012 was a Thursday and that
the latter date was the date she was injured at work. She explained that she was in so much pain,
she did not think about it again.
In another duty status report dated April 20, 2013, Dr. Adams reiterated his previous
work restrictions for appellant. He listed her diagnosis as sprains and strains of the elbow and
forearm. A supervisor noted that appellant’s date of injury was November 7, 2012 and that her
injury occurred when her right elbow slammed into a steel shelf while working.
In a statement dated December 28, 2013, Mr. Pickett stated that, on November 7, 2012,
appellant came to him after she hit her right elbow on a steel bin while sweeping mail. Appellant
mentioned that it hurt, but assumed that it could be a bruise. Afterward, she mentioned to
Mr. Pickett that it still gave her discomfort and attributed this discomfort to continuous lifting.
Mr. Pickett noted that there was no official report, but that it was brought to his attention at the
time it occurred. He stated that it was feasible that appellant’s injury could have been worse than
she expected.
By decision dated April 3, 2014, OWCP reviewed the merits of appellant’s claim and
modified its decision to accept that the incident of November 7, 2013 occurred as alleged, but
denied her claim on the basis that she had not established a causal relationship between her
diagnosis and the traumatic incident. It noted that the medical evidence from Dr. Adams
provided a diagnosis, but did not elaborate on how the incident of November 7, 2012 caused this
diagnosis.

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LEGAL PRECEDENT -- ISSUE 1
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.3 Unless otherwise directed in writing by the claimant, OWCP’s
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.4 OWCP has the burden of proving
that it mailed to appellant and his representative a notice of a scheduled hearing.5
The authority governing abandonment of hearings rests with OWCP’s regulations, which
provide in pertinent part as follows:
“A claimant who fails to appear at a scheduled hearing may request in writing
within 10 days after the date set for the hearing that another hearing be scheduled.
Where good cause for failure to appear is shown, another hearing will be
scheduled and conducted by teleconference. The failure of the claimant to request
another hearing within 10 days or the failure of the claimant to appear at the
second scheduled hearing without good cause shown shall constitute
abandonment of the request for a hearing.”6
ANALYSIS -- ISSUE 1
By decision dated April 23, 2013, OWCP denied appellant’s claim for compensation for
a traumatic injury. Appellant made a timely request for an oral hearing and, by notice dated
August 7, 2013, OWCP advised her that a telephonic oral hearing was to be held on
September 23, 2013. OWCP provided a telephone number, a time and a passcode. The notice
was sent to appellant’s last known address.7
Appellant failed to call the designated number on September 23, 2013. Thus, she was
required to provide an explanation for her failure to appear within 10 days. There is no evidence
of record that appellant contacted OWCP within 10 days of September 23, 2013 to explain her
failure to call in for the scheduled hearing. The evidence establishes that she did not request a
postponement of the hearing. Therefore, the Board finds that appellant abandoned her request
for a hearing in this case.

3

20 C.F.R. § 10.616(a).

4

Id. at 10.617(b).

5

See also K.D., Docket No. 11-77 (issued August 18, 2011); see Michelle R. Littlejohn, 42 ECAB 463,
465 (1991).
6

20 C.F.R. § 10.622(f); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of
the Written Record, Chapter 2.1601.6(g) (October 2011).
7

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. See also K.R., Docket No. 13-1412 (issued December 11, 2013); see James A.
Gray, 54 ECAB 277 (2002).

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On appeal, appellant contends that she never received notice of the hearing. The Board
notes that the August 7, 2013 notice of hearing was properly addressed and mailed to appellant at
her last known address. A notice properly addressed and duly mailed to an individual in the
ordinary course of business is presumed to have been received by that individual.8 Accordingly,
the Board finds that appellant was properly notified of the hearing.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA9 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.10 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.11
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.12
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.13 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.14
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.15 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.16
8

J.R., Docket No. 13-313 (issued August 15, 2013); see also Newton D. Lashmett, 45 ECAB 181 (1993)
(regarding the mailbox rule).
9

See supra note 1.

10

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

11

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

12

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 10 at n.5.

13

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

14

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 10 at n.5.
15

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

16

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

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.17 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.18 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.19
ANALYSIS -- ISSUE 2
Appellant alleged that on November 7, 2012, she sustained an injury to her right elbow
after pulling mail out of a slot and hitting her elbow on an iron bin. By decision dated April 3,
2014, OWCP accepted that the November 7, 2012 incident occurred as alleged, but denied her
claim, finding insufficient medical evidence to establish that her right elbow condition was
causally related to the accepted incident. The Board finds that appellant did not meet her burden
of proof to establish that her right elbow condition was a result of the November 7, 2012
employment incident.
Appellant submitted duty status reports signed by Dr. Adams, containing diagnoses of
contusion, tear of the extensor carpi brevis tendon and sprains and strains of the elbow and
forearm. Although Dr. Adams stated that the history of injury on the duty status reports
corresponded to that, given to him by her and listed diagnoses due to an injury, he did not
provide any opinion of reasonable medical certainty on the cause of her right elbow condition,
supported by detailed medical rationale, explaining the nature of the relationship between her
diagnosed conditions and the incident of November 7, 2012. Medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.20 The diagnostic report of Dr. Dixon is also insufficient to
establish appellant’s claim, as it did not provide any opinion on the cause of her right elbow
condition.
The issue of causal relationship is a medical question that must be established by the
submission of a probative medical opinion from a physician.21 Because appellant has not
provided such medical evidence, the Board finds that she has not met her burden of proof to
establish her claim.

17

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
18

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

19

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

20

Willie M. Miller, 53 ECAB 697, 701 (2002).

21

W.W., Docket No. 09-1619 (issued June 2, 2010).

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On appeal, appellant contends that witness statements were not taken into consideration
on the initial adjudication of her claim. This argument is irrelevant to the issue on appeal of the
April 3, 2014 decision, as OWCP had accepted the incident but denied her claim on the basis that
she had not provided sufficient medical evidence to establish that the accepted November 7,
2014 employment incident caused or contributed to her diagnosed conditions. Such evidence
was likely relied upon in the conclusion appellant had sufficiently proven fact of injury.
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 determined that appellant abandoned her request
for a hearing. The Board further finds that she did not meet her burden of proof to establish a
right elbow injury causally related to a November 7, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2014 and October 22, 2013 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 29, 2014
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
F.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1787
Issued: December 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 27, 2015 appellant, through counsel, filed a timely appeal from an April 27,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a knee injury in
the performance of duty on May 6, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 15, 2014 appellant, then a 58-year-old pipefitter, filed a traumatic injury claim
(Form CA-1) alleging that on May 6, 2014, he injured his right knee while walking up stairs. He
did not indicate that he stopped work.
By letter dated May 20, 2014, OWCP advised appellant that he needed to submit
additional evidence to establish his claim.
With respect to the factual background, appellant submitted a May 30, 2014 statement
relating that he was walking up stairs on May 6, 2014 at work and had reached the top when he
felt a sharp pain in his right knee. He noted that he had prior right knee surgery on
October 23, 2012.2
Appellant submitted a May 7, 2014 report from Dr. Jeffrey Spina, a Board-certified
internist, providing a history that appellant was walking up stairs at work on May 6, 2014 and
felt a popping sensation in the back of his right knee. Dr. Spina diagnosed right knee sprain and
recommended modified duty. He noted that appellant had right knee meniscal surgery in
October 2012, and reported that this prior injury was a workers’ compensation injury. On
May 21, 2014 OWCP received a (Form CA-16) authorization for examination and/or treatment.
The physician’s portion of the form was dated May 15, 2014 and completed by Dr. Anthony
Fenison, a Board-certified orthopedic surgeon. Dr. Fenison indicated that appellant was walking
up stairs and heard a pop in his right knee. He noted tenderness in both knees and low back, the
diagnosis was chondromalacia, low back sprain, and left knee strain.
In a narrative report dated May 15, 2015, Dr. Fenison provided a history that appellant
was walking up stairs and felt a sharp pain in his right knee. He indicated that appellant also
complained of left knee and low back pain. Dr. Fenison provided results on examination and
indicated that x-rays of the right knee showed decrease in the medial joint space, mild
degenerative changes, with no significant spurring. He diagnosed status post right knee
arthroscopy, bilateral knee chondromalacia, rule out left knee internal derangement, rule out
retear of the meniscus and internal derangement, right knee, and lumbar spine sprain/strain due
to altered gait. The period of disability was reported as four weeks.
In an attending physician’s report (Form CA-20) dated June 3, 2014, Dr. Fenison
diagnosed internal derangement of both knees and checked a box marked “yes” that the
condition was employment related. Appellant also submitted a note dated June 9, 2014 from
Dr. Fenison indicating that appellant was totally disabled, and a report dated June 9, 2014 from a
physician assistant.

2

The record indicates that appellant filed a traumatic injury claim for an injury on April 14, 2012 when he bent
over and felt his right knee pop. The claim was accepted for right knee medial collateral ligament sprain, and
derangement of posterior horn of right knee medial meniscus. Appellant underwent right knee meniscal surgery on
October 23, 2012. This claim has not been administratively combined with the current claim.

2

By decision dated June 24, 2014, OWCP denied the claim for compensation. It found
that the medical evidence was insufficient to establish causal relationship between a diagnosed
condition and the employment incident.
On July 23, 2014 appellant requested a telephonic hearing with an OWCP hearing
representative and submitted a copy of the June 9, 2014 report, now signed by Dr. Fenison. The
report provided results on examination and diagnosed bilateral chondromalacia patellae and
bilateral internal derangement. Appellant also submitted treatment reports from Dr. Fenison
dated June 30 and August 4, 2014.
A hearing was held on February 10, 2015. On March 11, 2015 appellant submitted a
February 6, 2015 statement indicating that he had worked as a pipefitter for 30 years. He
described his work activity as including standing, walking, carrying heavy objects, squatting,
kneeling, reaching overhead, and being on his knees. Appellant reported that he had prior claims
for both left knee and right knee injuries.
Appellant submitted a March 5, 2015 report from Dr. Fenison on March 17, 2015.
Dr. Fenison diagnosed appellant with bilateral chondromalacia and internal derangement. He
noted that he had read a statement from appellant regarding work duties. According to
Dr. Fenison, “the collective work duties performed by [appellant] as indicated in his statement
would have a general wearing down or degenerative effect on the knees. This would expose him
to a greater chance of injury as reflected in his prior conditions to both knees.” He reported that
appellant was able to continue working until May 2014, but at that point “his knees, as we are
particularly discussing his right knee at this point, would have been worn down from the years of
activity as a pipefitter.” According to Dr. Fenison, “the exertion on the right knee necessary to
climb the stairs upon the fragile knee was sufficient to damage the knee to the point where he felt
the pain and caused the derangement of the knee or diagnosed condition.” He opined that the
force necessary to climb stairs was greater than a level surface, and this makes a weakened knee
vulnerable to such diagnosed injury.
By decision dated April 27, 2015, the hearing representative affirmed the June 24, 2014
OWCP decision. The hearing representative found that the medical evidence was insufficient to
establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that he or she
sustained an injury while in the performance of duty.3 In order to determine whether an
employee actually sustained an injury in the performance of duty, OWCP begins with an analysis
of whether “fact of injury” has been established. Generally, “fact of injury” consists of two
components which must be considered in conjunction with one another. The first component to
be established is that the employee actually experienced the employment incident which is

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

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alleged to have occurred. The second component is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.4
OWCP procedures recognize that a claim may be accepted without a medical report when
the condition is a minor one which can be identified on visual inspection.5 In clear-cut traumatic
injury claims, such as a fall resulting in a broken arm, a physician’s affirmative statement is
sufficient and no rationalized opinion on causal relationship is needed. In all other traumatic
injury claims, a rationalized medical opinion supporting causal relationship is required.6
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
In the present case, appellant has alleged that he sustained a knee injury in the
performance of duty on May 6, 2014 when he was walking up stairs and felt right knee pain.
OWCP has accepted that an employment incident occurred as alleged. The issue is whether
there is sufficient medical evidence to establish a diagnosed condition causally related to the
employment incident. For the reasons discussed below, the Board finds that the medical
evidence is insufficient to establish the claim.
Appellant received treatment on May 7, 2014 and at that time Dr. Spina diagnosed a right
knee strain. He did not specifically provide an opinion as to causal relationship with the
employment injury. On May 15, 2014 appellant received treatment from Dr. Fenison, who did
not refer to a knee strain. He diagnosed a bilateral knee chondromalacia, without providing an
opinion on causal relationship with the employment incident. A Form CA-20 report dated
June 3, 2014 from Dr. Fenison diagnosed bilateral internal derangement and he checked a box
marked “yes” as to its causal relationship to appellant’s employment. It is well established that
the checking of a box marked “yes” in a form report, without additional explanation or rationale, is
not sufficient to establish causal relationship.8
In a March 5, 2015 report, Dr. Fenison attempted to provide additional explanation on
causal relationship, however, this report does not clarify the issue. He noted that he reviewed a
statement from appellant regarding “collective work duties.” In this regard it is not clear how the
4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013).

6

Id.

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

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collective work duties affected appellant’s condition with respect to the current claim. The claim
in this case is for a traumatic injury on May 6, 2014. A claim for an injury from work duties
over a period of time is not before the Board.9 Dr. Fenison opined that the work duties had
weakened or “worn down” the knees, but he does not provide further medical explanation in this
regard. Further, complicating the issue is the question of the right knee versus the left knee.
Dr. Fenison’s diagnoses of internal derangement and chondromalacia appeared to be for both
knees. But in the February 6, 2015 report he writes that “we are discussing his right knee at this
point” in May 2014. It is not clear whether Dr. Fenison is opining that there was a right knee
injury when climbing stairs on May 6, 2014 or injuries to both knees and his opinion as to causal
relationship is that the exertion of walking up the stairs “caused the derangement of the knee or
diagnosed condition.” This statement is not accompanied by additional medical rationale or
explanation. It is not clear how the exertion of walking up stairs “caused” an internal
derangement, whether the injury was only to the right knee, or whether the “diagnosed
condition” included chondromalacia.
A rationalized medical opinion would have to clarify these issues and clearly explain any
causal relationship between a specific diagnosed knee condition and the employment incident. It
is appellant’s burden of proof, and for the reasons noted, he did not meet his burden of proof in
this case.
The Board notes the record contains a Form CA-16 that was issued by the employing
establishment. Where an employing establishment properly executes a CA-16 form which
authorizes medical treatment as a result of an employee’s claim for an employment-related
injury, the CA-16 form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim.10 On return of the case record, OWCP should address the issue of entitlement to medical
benefits pursuant to the CA-16 form.
On appeal, appellant’s counsel notes that appellant submitted a statement regarding his
work duties. As discussed above, the claim on appeal is not for an occupational disease or
illness from work over more than one day, but a traumatic injury claim based on a May 6, 2014
incident. Counsel argues that Dr. Fenison’s March 5, 2015 report is sufficient to establish the
claim. For the reasons discussed above, the Board finds that the evidence is not sufficient to
meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

An occupational disease or illness is a condition produced by the work environment over a period longer than a
single workday or shift. 20 C.F.R. § 10.5(q).
10

Tracey P. Spillane, 54 ECAB 608 (2003).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a knee injury
in the performance of duty on May 6, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 27, 2015 is affirmed.
Issued: December 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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Appearances:
Beverly McWilliams, for the appellant
No appearance, for the Director

Docket No. 07-2178
Issued: May 20, 2009

Oral Argument January 14, 2009

DECISION AND ORDER

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

JURISDICTION
On September 4, 2007 appellant’s representative filed a timely appeal from the Office of
Workers’ Compensation Programs’ decisions dated June 21 and April 12, 2007, which denied
his requests for modification of a September 25, 2006 decision that terminated his compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues on appeal are: (1) whether the Office properly terminated appellant’s
compensation and medical benefits effective September 30, 2006; and (2) whether appellant met
his burden of proof to establish that he had any disability after September 30, 2006 causally
related to the April 6, 1975 employment injury.

FACTUAL HISTORY
On April 6, 1975 appellant, then a 54-year-old mail handler, sustained a traumatic injury
to his low back while lifting sacks of mail in the performance of duty.1 The Office accepted his
claim for lumbosacral strain and herniated disc at L4-5. It authorized surgery for a laminectomy
at L4-5 on July 11, 1975. Appellant stopped work after the surgery and did not return. He
received compensation for injury-related disability for work.2
By letter dated December 18, 2003, the Office advised appellant that there was no current
medical evidence to establish his entitlement to continuing compensation payments. It requested
that he submit a report from his treating physician, who addressed his current complaints with
objective findings and an opinion with medical reasons as to whether the accepted lumbar
condition rendered him totally disabled. The Office did not receive any updated medical report.
On June 21, 2006 the Office referred appellant to Dr. Donald H. Brancato, a Boardcertified orthopedic surgeon, for a second opinion examination. In an August 7, 2006 report,
Dr. Brancato described appellant’s history of injury and treatment and noted that he had not
worked since 1975 due to his original complaints of lumbosacral strain and a herniated disc. He
stated that appellant did not have “active associated lumbar-related conditions and no associated
residuals that … can be directly attributable to his work-related problems and are more likely to
be associated with all of the subsequent age-related changes.” Dr. Brancato conducted a physical
examination and opined that appellant was “obviously unable to perform his date-of-injury
position without restrictions, due to the secondary conditions.” He noted that it was
“questionable as to whether he would be able to perform any work, other than sedentary tasks,
sitting and using his hands.” Dr. Brancato was unsure of appellant’s mental status, stating that
appellant had all the “findings consistent with a man of 82 years of age, who sustained a stroke
and fracture, with right-sided total hip replacement.”
On August 16, 2006 the Office issued a notice of proposed termination of compensation.
It found that the weight of the medical evidence, as represented by the report of Dr. Brancato,
established that the residuals of the work injury on April 6, 1975 had ceased. The Office noted
that there were no current medical reports documenting residual symptoms or treatment of the
work-related injury since 1987.
In a telephone call memorandum dated August 24, 2006, appellant’s daughter informed
the Office that he was in the hospital and she was uncertain as to when he would be released. On

1

The record reflects that appellant has a separate claim for an injury on April 21, 1973 to his right foot, which
occurred while pulling cages out of a trailer. The Office accepted the claim for contusion and fracture of the second
metatarsal right foot. OWCP File No. xxxxxx007. Appellant also has nonwork-related conditions that include a
subdural hematoma in 1989 and a seizure disorder. He also has peripheral neuropathy and a stroke, which impacted
his left side. Additionally, appellant had a fractured hip in 1993, a hip replacement, as well as a psychiatric
condition in 1992 and 1993.
2

The record reflects that appellant retired on July 16, 1976.

2

September 20, 2006 she called the Office to advise that she would be submitting medical
evidence to support appellant’s claim.
By decision dated September 25, 2006, the Office terminated appellant’s compensation
benefits effective September 30, 2006.
The Office received a power of attorney from appellant, diagnosing his daughter,
Beverly McWilliams, would act as his attorney and handle his health and financial affairs. On
October 30, 2006 appellant requested reconsideration and submitted additional medical evidence.
In an October 26, 2006 report, Dr. Fred R. Duhart, an osteopath and treating physician,
noted that he made a house call to see appellant.3 He indicated that appellant’s primary
complaint was of “pain in his low back area and pain in his lower right hip and pain that
continues down into the right leg and also down into his right toes.” Dr. Duhart found that
appellant could walk occasionally with a four-pronged cane, but that he would have sharp pain in
his right hip joint and actually had difficulty stopping and standing and if bending forward, sharp
pain in the lumbar and sacroiliac joint. He conducted a physical examination and concluded that
appellant continued to have lumbosacral strain with spasms in the lumbar spine over the
pararectus spinous muscle, radiculopathy within the lumbar spine from L3, L4 and L5 to the
right lower extremities elicited by the straight leg raising test. The Ely test was indicative of
further radiculopathy that appellant had from surgery and the April 6, 1975 injury. Dr. Duhart
advised that appellant had right foot weakness with very poor dorsiflexion, which indicated
lumbar spine weakness that caused him to use a cane and to shuffle when he walked. Appellant
also had some age and osteoarthritis-related changes to his lumbar spine and right hip that was
not significant and did not contribute to his walking difficulties or low back nerve root irritation.
Dr. Duhart opined that appellant continued to have residuals of the work injury. He explained
that the surgery on the herniated disc continued to cause lumbar spinal injury, irritation and
muscle tension that caused inflammation around the nerve fiber and radiculopathy extending into
the right leg which, in turn, limited dorsiflexion of the right foot. Dr. Duhart stated that the
symptoms and complaints that appellant was having were “thoroughly due to the injury that he
sustained on [April 6, 1975]” and that his complaints were “not due to his getting older as he is
but are definitely present from his previous injury that he had in the past.”
In a January 15, 2007 report, Dr. Rick Hummel, a general internist, noted that appellant
had numerous disabilities such as peripheral neuropathy, seizures, disc surgery and total hip
replacement. He advised that appellant was wheelchair bound due to the nerve damage caused
by the neuropathy and totally disabled.
On March 2, 2007 the Office referred appellant along with a statement of accepted facts
and the medical record to Dr. Michael Ralph, a Board-certified orthopedic surgeon, to resolve
the medical conflict between Drs. Duhart and Brancato regarding the extent of appellant’s
orthopedic residuals.

3

The record reflects that Dr. Duhart also examined appellant on January 4, 1993. However, appellant did not
submit any other reports prior to the October 26, 2006 examination.

3

In his report dated March 28, 2007, Dr. Ralph noted appellant’s history of injury and
treatment and noted examination findings. Regarding appellant’s laminectomy, he explained
that it was a simple procedure and appellant should have been able to return to work within 12 to
14 weeks. Dr. Ralph stated that appellant’s failure to return was “on his own.” He determined
that appellant was “not competent to be making his own decisions” and opined that he did not
believe that appellant was “totally aware of his surroundings.” Dr. Ralph noted that appellant’s
daughter indicated that he was in a wheelchair because he was constantly falling. He was unable
to do a full neurologic examination but was able to check the status of appellant’s cerebellum.
Dr. Ralph indicated that radiographs of the pelvis and the right hip revealed a “well-cemented
bipolar hip replacement with no secondary changes.” Appellant had an abnormal computerized
tomography (CT) scan of the lumbar spine but Dr. Ralph explained that it was not abnormal for a
patient of his age. He opined that appellant was “clearly disabled from any form of reasonable
employment based upon a multiplicity of factors including his mental status, age [and] previous
right hip surgery.” A March 8, 2007 CT scan read by Dr. Toni Roth, a Board-certified
diagnostic radiologist, revealed no evidence of fracture of subluxation, developmental spinal
stenosis and suspicion of secondary degenerative disease with disc bulges with mild herniation
with calcification in the disc margin adding to stenosis and probable thecal sac compression at
both L3-4 and L4-5.
By decision dated April 12, 2007, the Office denied modification of its September 25,
2006 decision. It found that Dr. Ralph represented the weight of the medical evidence.
Appellant’s representative requested reconsideration. In a letter dated May 19, 2007, she
contended that appellant remained totally disabled due to arachnoiditis, which resulted from his
laminectomy or an injection into his spinal cord. Appellant’s representative also provided copies
of documents and medical reports pertaining to appellant’s claim from 1977 to 1993 together
with copies of other correspondence and documents pertaining to the claim.
By decision dated June 21, 2007, the Office denied modification of its April 12, 2007
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.5

4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

4

ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits, effective September 30, 2006, based on the August 7, 2006 report of
Dr. Brancato, an Office referral physician.
Dr. Brancato reviewed appellant’s history of treatment and his employment-related
lumbosacral strain and herniated disc at L4-5 and subsequent laminectomy at L4-5 on
July 11, 1975. He noted that appellant had not worked since 1975 and opined that appellant did
not have any “active associated lumbar-related conditions and no associated residuals that can be
directly attributable to his work-related problems and are more likely to be associated with all of
the subsequent age-related changes.” Dr. Brancato conducted a physical examination and opined
that appellant was “obviously unable to perform his date-of-injury position without restrictions,
due to the secondary conditions.” He also indicated that it was “questionable as to whether he
would be able to perform any work, other than sedentary tasks, sitting and using his hands.”
Dr. Brancato noted that appellant had all the “findings consistent with a man of 82 years of age,
who sustained a stroke and fracture, with right-sided total hip replacement.”
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.6 Dr. Brancato reviewed the history of injury and explained that
there were no objective findings from the accepted employment injury to establish that appellant
had any continuing employment-related residuals or disability of the accepted employment
conditions. The Board finds that his opinion represents the weight of the medical evidence and
establishes that appellant no longer has any residuals or disability causally related to his
employment-related injuries. At the time of the Office’s termination of benefits, there was no
current medical evidence supporting a continuing employment-related condition. The Office met
its burden of proof to terminate compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.7
The medical evidence required to establish a causal relationship 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
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
6

See Manuel Gill, 52 ECAB 282 (2001).

7

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

5

physician must be based on a complete factual and medical background of the appellant, 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 appellant.8
The Federal Employees’ Compensation Act9 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, it
shall appoint a third physician who shall make an examination.10 In cases where it has referred
appellant to an impartial medical examiner to resolve a conflict in the medical evidence, the
opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.11
ANALYSIS -- ISSUE 2
Subsequent to the Office’s September 25, 2006 decision, appellant submitted an
October 26, 2006 report from Dr. Duhart, an osteopath and treating physician, who provided a
rationalized opinion in which he noted appellant’s history of injury and treatment and conducted
an examination. Dr. Duhart explained that the weakness in appellant’s right foot was indicative
of weakness in the lumbar spine, which caused him to require the use of a cane and shuffle.
While he indicated that some of appellant’s changes in the lumbar spine and right hip were due
to aging and osteoarthritis, he noted that these conditions were not contributing to appellant’s
difficulties with walking and his low back nerve root irritation. Dr. Duhart opined that appellant
continued to have residuals of the work injury and advised that the work-related low back
surgery continued to cause lumbar spinal injury, irritation and muscle tension. He noted that it
was also causing inflammation around the nerve fiber and radiculopathy extending down the
right leg with limited dorsiflexion of the right foot which were related to the original work
injury. Dr. Duhart found that the symptoms and complaints that appellant was having were
“thoroughly due to the injury that he sustained on [April 6, 1975]” and that his complaints were
“not due to his getting older as he is but are definitely present from his previous injury that he
had in the past.”
The Office determined that a conflict of medical opinion arose between Dr. Duhart, for
appellant, and Dr. Brancato, regarding the nature and extent of any ongoing residuals of the work
injury on April 6, 1975. It properly referred appellant to Dr. Ralph, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict. The Board finds, however,
that Dr. Ralph’s report is insufficient to resolve the conflict in the medical evidence regarding
whether appellant has residuals or disability causally related to the April 6, 1975 employment
injury.

8

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

9

5 U.S.C. §§ 8101-8193, 8123(a).

10

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

11

Gary R. Sieber, 46 ECAB 215, 225 (1994).

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In a March 28, 2007 report, Dr. Ralph noted appellant’s history of injury and treatment.
However, he noted that he was unable to do a full neurological examination because appellant
was in a wheelchair. Dr. Ralph indicated that he was able to check on the status of appellant’s
“cerebellum” and that radiographs of the pelvis and the right hip revealed a “well-cemented
bipolar hip replacement with no secondary changes.” The Board notes that appellant’s claim
was accepted for a lumbosacral strain and a herniated disc at L4-5 and a laminectomy at L4-5 on
July 11, 1975. Dr. Ralph noted an abnormal CT scan of the lumbar spine but explained that it
was not abnormal for a patient of appellant’s age. However, as noted, Dr. Duhart opined that
appellant’s present condition was related to his accepted injuries and explained that, while some
of appellant’s symptoms were caused by aging, they were not contributing to his difficulties with
walking and having nerve root irritation in his low back. He explained that the surgery due to
the herniated disc continued to cause lumbar spinal injury, irritation and muscle tension,
inflammation around the nerve fiber, radiculopathy extending down into the right leg and limited
dorsiflexion of the right foot. Dr. Ralph did not provide sufficient explanation or rationale as to
why he concluded that appellant had a simple laminectomy and should have been able to return
to work within 12 to 14 weeks. This is particularly important in light of the fact that he did not
fully examine appellant.
The Board finds that Dr. Ralph’s opinion is not entitled to special weight as his report is
insufficiently rationalized. When the Office obtains an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the specialist’s
opinion requires clarification or elaboration, it must secure a supplemental report from the
specialist to correct the defect in his original report.12 In this case, it did not seek a supplemental
report from Dr. Ralph. Accordingly, the conflict in the medical evidence remains regarding
appellant’s work-related disability and residuals after September 30, 2006. The case will be
remanded for resolution of the conflict pursuant to 5 U.S.C. § 8123(a).
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
medical benefits effective September 30, 2006. However, the Board finds that there remains an
unresolved conflict in the medical evidence regarding whether appellant had any injury-related
condition or disability after September 30, 2006 causally related to the April 6, 1975
employment injury.

12

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007).

7

ORDER
IT IS HEREBY ORDERED THAT the June 21 and April 12, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed in part and set aside and remanded in
part. The case is remanded for further proceedings consistent with this decision.
Issued: May 20, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 15-0385
Issued: August 19, 2015

Case Submitted on the Record

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

JURISDICTION
On December 9, 2014 appellant filed a timely appeal of a November 13, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUE
The issue is whether OWCP met its burden to terminate her compensation benefits
effective November 16, 2014.

1

Appellant filed a timely request for oral argument. After exercising its discretion pursuant to 20 C.F.R.
§ 501.5(a), by order dated May 6, 2015, the Board denied her request on the grounds that her arguments could be
adequately addressed in a decision based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 15-385 (issued May 6, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 2, 1985 appellant, then a 29-year-old mail handler, filed a traumatic injury
claim alleging that she tore a nail on her right big toe when a wheel ran over her foot. OWCP
accepted the claim for great right toe contusion and assigned OWCP File No. xxxxxx205.
On October 5, 1985 appellant, then a 30-year-old mail handler filed a traumatic injury
claim alleging that on October 4, 1985 she pulled a muscle in her right knee while pulling on a
jammed mail container. OWCP accepted the claim for right knee sprain, lateral collateral
ligament; strained right hamstring, right knee subluxation, permanent aggravation of
degenerative right patella facet changes; right patellae chondromalacia; and closed right
dislocation of patella.
OWCP combined File No. xxxxxx205 with File No. xxxxxx269, listing the latter as the
master file number.
By letter dated March 14, 1986, the employing establishment informed appellant that it
had terminated her employment effective March 13, 1986.
OWCP issued a loss of wage-earning capacity (LWEC) determination on November 16,
1987 reducing appellant’s wage-loss compensation based on her ability to earn wages in her
position of medical unit secretary.
The record reveals that appellant underwent vocational rehabilitation and obtained her
license as a lab technician with the State of Florida: Health and Rehabilitation Service, Public
Health Unit. In a notice dated November 23, 1992, OWCP proposed to reduce appellant’s
compensation because the position of lab technician fairly and reasonably represented her wageearning capacity.
By decision dated January 6, 1993, OWCP determined that modification of the
November 16, 1987 LWEC was not warranted as her current pay rate for the position of lab
technician was the same as the rated position of medical unit secretary.
On June 30, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, to determine appellant’s current
status. In a July 22, 2014 report, Dr. Smith noted the claim had been accepted for lateral
collateral right knee ligament sprain, dislocation of right knee patella, and right knee patella
chondromalacia. A physical examination revealed no gross right knee instability, normal patella
track, and no chondromalacia due to the total knee replacement. Dr. Smith noted that appellant
underwent bilateral total knee replacement in 2004. OWCP did not authorize the total right knee
replacement surgery as it determined that the surgery was unrelated to the accepted 1985
employment injury. Dr. Smith concluded that all of her employment-related conditions had
resolved and that she required no further medical treatment. He determined that appellant was

2

disabled from returning to her date-of-injury position based on the bilateral total knee
replacements, but was capable of performing sedentary work.3
On September 16, 2014 OWCP issued a notice proposing to terminate appellant’s
compensation benefits. It found that the weight of the evidence that her accepted conditions had
resolved with no residuals resided with the opinion of Dr. Smith, a second opinion physician.
In a letter dated October 10, 2014, appellant indicated her disagreement with the proposal
to terminate her compensation benefits as she continued to have residuals from her accepted
employment injury. She submitted a September 26, 2014 report from Dr. Jonathan P. Garino, a
treating Board-certified orthopedic surgeon, diagnosing obesity and status bilateral knee joint
replacement. A physical examination of the right knee revealed a normal gait, no swelling, no
tenderness, and no limitation on flexion or extension. Dr. Garino reported instability tests were
negative. In an attached work capacity evaluation form, he indicated that appellant was capable
of working an eight-hour day with restrictions. The restrictions included up to one hour of
standing or walking and no twisting, bending/stooping, pushing, pulling, kneeling, lifting,
swatting, and climbing.
By decision dated November 13, 2014, OWCP finalized the termination of her
compensation benefits to become effective November 16, 2014.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8

3

By decision dated February 25, 2004, OWCP denied authorization for bilateral knee replacements as not
warranted due to the accepted injuries. An OWCP hearing representative affirmed this denial on May 16, 2005.
4

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

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

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ANALYSIS
OWCP accepted the conditions right toe contusion, right knee sprain, lateral collateral
ligament; strained right hamstring, right knee subluxation, permanent aggravation of
degenerative right patella facet changes; right patellae chondromalacia; and closed right
dislocation of patella as being caused by the September 2 and October 4, 1985 employment
injuries. By decision dated November 13, 2014, it terminated appellant’s compensation benefits.
OWCP found that the weight of the evidence rested with the opinion of Dr. Smith, an OWCP
referral physician, who concluded that appellant no longer had any disability or residuals due to
her accepted employment conditions.
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits based on the opinion of Dr. Smith, an OWCP referral physician, who
reviewed the complete history of appellant’s employment injury, medical treatment and the
statement of accepted facts concerning the work accepted conditions: right toe contusion, right
chondromalacia patellae, right hamstring muscle sprain, right patella subluxation, permanent
aggravation of right patella facet degenerative changes, and right dislocated patella. Dr. Smith
reported essentially normal findings on physical examination and noted no objective evidence of
the accepted employment conditions. He found that appellant no longer had any residuals or
disability due to her accepted October 4, 1985 employment injury. A physical examination
revealed no right knee instability, a normal patella track and no chondromalacia. Dr. Smith
concluded that appellant’s current condition and disability were due to her bilateral total knee
replacements, which were unrelated to the accepted conditions.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history, the care of analysis manifested and the medical rationale expressed in
support of stated conclusions.9 Dr. Smith fully discussed the history of injury and noted that
there were no objective findings to establish that appellant had any continuing employmentrelated residuals or disability. The Board finds his opinion is detailed, well rationalized and
based upon a complete and accurate history. The Board finds that Dr. Smith’s opinion represents
the weight of the medical evidence. OWCP met its burden of proof to terminate compensation.
Dr. Garino diagnosed status post bilateral knee joint replacement and obesity and
provided work restrictions. While he opined that she was capable of working with restrictions,
he provided no rationale for this limitation to show that it is causally related to appellant’s
accepted employment conditions. Dr. Garino, however, provided no opinion as to whether
appellant continued to have residuals of her accepted conditions. As such, his report is of
diminished probative value.10

9

See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996).

10

T.M., Docket No. 08-975 (issued February 6, 2009); T.F., 58 ECAB 128 (2006) (a medical report is of limited
probative value on a given medical question if it is unsupported by medical rationale); see also S.D., 58 ECAB 713
(2007) (the Board has held that a medical opinion not fortified by medical rationale is of little probative value).

4

The Board finds that OWCP properly terminated compensation benefits effective
November 16, 2014 because appellant no longer suffered from any residuals related to her
accepted employment condition and will affirm that decision.
On appeal, appellant disagrees with OWCP’s reliance on Dr. Smith’s opinion to find that
she no longer had any residuals or disability due to her accepted right knee conditions. As
explained above, the medical evidence establishes that her accepted condition had resolved with
no residuals. The record contains no physician’s opinion, with supporting rationale based on the
objective evidence, that appellant continued to have residuals of the accepted employment
condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective November 16, 2014 on the grounds that she no longer had any residuals or disability
causally related to her accepted employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 13, 2014 is affirmed.
Issued: August 19, 2015
Washington, DC

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

Alec J. Koromilas, 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.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1198
Issued: December 1, 2015

Case Submitted on the Record

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

JURISDICTION
On April 29, 2014 appellant, through counsel, filed a timely appeal of an April 2, 2014
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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a pulmonary
condition due to factors of his federal employment.
On appeal counsel argues that the reports of Dr. Glen Baker, a Board-certified
pulmonologist and “B” reader is entitled to the weight of the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 12, 2012 appellant, then a 55-year-old laborer, filed an occupational disease
claim (Form CA-2) alleging that he developed occupational pneumoconiosis with pulmonary
asbestosis and chronic bronchitis due to exposures at the employing establishment. He stated
that he first became aware of his condition on December 8, 2011 and first attributed his condition
to his employment on that date. The employing establishment stated that appellant was last
exposed to the conditions to which he attributed his disease on July 9, 2004.
In a letter dated August 3, 2012, OWCP requested additional factual and medical
evidence in support of appellant’s claim. Dr. Baker examined appellant’s chest film on
November 29, 2011 and diagnosed parenchymal abnormalities consistent with pneumoconiosis
including small opacities, but no pleural abnormalities. He further found postoperative changes.
In a report dated January 17, 2012, Dr. Assedu A. Kalik, a Board-certified internist,
examined appellant and diagnosed chronic obstructive pulmonary disease (COPD). He noted
that appellant was a smoker. Appellant refused to stop smoking and reported an occasional
cough, and wheezing as well as shortness of breath with moderate exertion. On physical
examination he demonstrated diminished intensity of breath sounds bilaterally.
Dr. Baker completed a report on June 25, 2012 and listed appellant’s intermittent
employment with the employing establishment from 1978 to 2004 for a total of 18 years. He
stated that appellant was exposed to both asbestos and coal dust through 2004. Dr. Baker also
reported appellant’s employment in a furniture factory for one year, a granary for four years and
in the military for two years. He reported appellant’s 39-year history of smoking at the rate of
one to one and one half packs a day.
Dr. Baker indicated that appellant had experienced shortness of breath for 12 to 13 years
with daily cough, sputum production and wheezing. Appellant utilized oxygen for sleeping and
continued to experience shortness of breath at night even with the oxygen. His lungs were clear
to auscultation and percussion. Dr. Baker found that appellant’s chest x-ray of November 17,
2011 was consistent with occupational pneumoconiosis category 1/1 and exhibited irregular
opacities suggesting pulmonary asbestosis. Appellant’s pulmonary function studies were within
normal limits. Dr. Baker diagnosed occupational pneumoconiosis with pulmonary asbestosis,
chronic bronchitis, history of ischemic heart disease, hyperlipidemia, essential hypertension,
hearing loss, and colon disease. He stated, “[Appellant] had exposure off and on for 18 years to
asbestos fibers as well as coal dust. He has x-ray changes consistent with pulmonary
asbestosis…. Appellant’s bronchitis and occupational pneumoconiosis are caused by his
exposure to asbestos and other dusts, odors, and fumes he was exposed to during his
employment. His cigarette smoking history has contributed as well.” Dr. Baker concluded that
appellant had ratable impairment even though his pulmonary function studies were within
normal limits as he had shortness of breath with continuous treatment and symptoms of chronic
bronchitis. He found that appellant had class 1 E impairment of 10 percent as he continued to
have symptoms despite maximum medication.
Appellant submitted a narrative statement noting that he began working at the employing
establishment in 1978 as a laborer. He worked there intermittently from 1978 to 1982, from

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1988 to 1992, and then became a regular employee from 2000 to 2004. Appellant stated that he
was exposed to coal dust on a daily basis including coal dust in the air as well as settled coal dust
on equipment and clothing. He reported that he was exposed to asbestos when steam lines blew
and when he was required to tear asbestos off boilers and bag it. Appellant stated that he loaded
trucks with a loader and that dust blew back into his face. He reported exposure to flue gas.
Appellant worked five days a week eight hours a day and wore a paper mask for protection. He
stated that he had experienced shortness of breath for 12 to 13 years with a productive cough and
had smoked cigarettes for 39 years at the rate of one to one and one half packs a day.
The employing establishment’s industrial hygienist provided a work history of exposure
and stated that appellant was employed for a total of nine years as a laborer. He stated that
exposures to asbestos and coal dust for laborers in general during appellant’s employment
periods were below the relevant permissible exposure limits of the time. The employing
establishment’s industrial hygienist stated that insulation could only be removed by trained
personnel with proper personal protective equipment. He further noted that paper masks were
not recognized as an acceptable form of respiratory protection and that there was a very strong
respiratory protection program for workers exposed to airborne hazards including ongoing
industrial hygiene assessments for work areas and engineering controls.
OWCP referred appellant for a second opinion examination, with Dr. Harold Dale Haller,
Jr., a Board-certified pulmonologist, along with a prepared statement of accepted facts, and
appellant’s statement that he was exposed to coal dust, asbestos, and dust at the employing
establishment as well as exposure to grain dust and a 39-year-smoking history. It also provided
specific questions to Dr. Haller.
In a report dated December 17, 2012, Dr. Haller requested a computerized tomography
(CT) scan, but appellant refused to undergo the testing. He noted appellant’s employment
exposures and continues positive airway pressure usage at night. Dr. Haller diagnosed mild
COPD with bronchodilator responsiveness. He opined that cigarette smoking was responsible
for most of the obstruction. Dr. Haller noted that significant dust exposure, when combined with
cigarette smoke, could accelerate the rate of development of obstruction. He stated that he was
not impressed with the chest radiograph regarding evidence for asbestosis as appellant’s lung
functions showed no evidence of restrictive process. Dr. Haller recommended a high resolution
CT scan to resolve the issue of asbestosis.
In a letter dated December 17, 2012, OWCP notified appellant that his refusal to undergo
the requested CT scan could result in a suspension of his eligibility for compensation benefits.
Appellant underwent the CT scan on February 1, 2013 which demonstrated bi-apical fibrotic
scarring and multiple sub pleural blebs and noncalcified nodular density in the left apex as well
as sub pleural scarring in the right upper lobe. His right upper lobe demonstrated nodular
appearing interstitial scarring and no calcified pleural plaques. Dr. Haller reviewed this report on
February 8, 2013 and found that the bi-apical bullous disease was consistent with emphysema
from appellant’s smoking history. He stated that the fibrotic scarring was probably related to
emphysema as well although there were some areas of scarring noted in other lung regions.
Dr. Haller opined, “These changes certainly are not classic for asbestosis or pneumoconiosis. I
think the chest CT [scan] supports the diagnosis of COPD and does not support a diagnosis of

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pneumoconiosis.” He noted that appellant exhibited noncalcified nodular densities that should
be examined in six months to rule out malignancy.
OWCP’s medical adviser reviewed the record on February 28, 2013 and found that
appellant’s diagnosed condition was COPD, mild, due primarily to cigarette smoking. He stated,
“Although [appellant’s] industrial exposure may have contributed to his COPD, his main
contributing factor is his smoking.” The medical adviser found that appellant had no permanent
impairment under the American Medical Association, Guides to the Evaluation of Permanent
Impairment2 (A.M.A., Guides).
On April 1, 2013 OWCP referred appellant, a statement of accepted facts and a list of
specific questions to Dr. Manoj Majmudar, a Board-certified pulmonologist, for an impartial
medical examination to resolve the conflict in medical opinion between Dr. Baker and
Dr. Haller. In his May 9, 2013 report, Dr. Majmudar noted appellant’s symptoms of shortness of
breath with exertion and at rest as well as wheezing and productive cough. He reported
appellant’s 40-year smoking history of one to one half packs a day and his employment history
including exposure to coal dust and asbestos. Dr. Majmudar found that appellant exhibited
shortness of breath and bilateral diffuse end expiratory wheeze. He reviewed appellant’s chest
x-rays and found severely hyper inflated lungs with no evidence of pleural plaque or any nodular
interstitial infiltrate. Dr. Majmudar found that appellant had mild obstructive airway impairment
on pulmonary function tests and moderate reduction in diffusion capacity. He opined that
appellant’s pulmonary pathology was chronic obstructive airway impairment due to cigarette
smoking. Dr. Majmudar found no evidence of any pneumoconiosis or asbestosis or any
asbestos-related disease. He diagnosed COPD, chronic bronchitis and emphysema from
cigarette smoking.
The medical adviser reviewed this report on July 30, 2013 and found that, as appellant’s
COPD was due to cigarette smoking, it was not employment related and he was not entitled to a
schedule award.
By decision dated August 1, 2013, OWCP denied appellant’s claim for an employmentrelated occupational disease of the lungs finding that the weight of the medical evidence rested
with Dr. Majmudar’s report establishing that appellant’s diagnosed conditions were due to his
history of smoking cigarettes rather than to his employment exposures to coal dust and asbestos.
On August 8, 2013 appellant requested an oral hearing before an OWCP hearing
representative, which was held on January 16, 2014. At the hearing he testified that he worked at
a coal fired steam generating electrical plant. Appellant testified that his position as a laborer
required him to shovel coal spills, clean hoppers, and work on the burner deck. He stated that
the coal utilized in the plant was in the form of a fine dust. Appellant again described his
exposure to asbestos and his usage of cigarettes. Counsel argued that Dr. Baker was entitled to
the weight of the medical opinion evidence as he was a certified “B” reader. He further noted
that Dr. Haller indicated that appellant’s cigarette smoking was not entirely responsible for
appellant’s diagnosed conditions. Counsel also argued that appellant’s CT scan was consistent
2

A.M.A., Guides, 6th ed. (2009).

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with pneumoconiosis. On March 20, 2014 he submitted publications regarding COPD, coal
workers’ lung and airway disease.
By decision dated April 2, 2014, the hearing representative found that Dr. Majmudar’s
report was sufficiently well reasoned to be entitled to special weight and established that
appellant’s pulmonary condition was chronic obstructive airway impairment due to cigarette
smoking. She further noted that Dr. Majmudar found that there was no evidence of
pneumoconiosis or asbestosis. The hearing representative noted that the excerpts from
publications were not relevant in determining causal relationship between exposure and disease
in appellant’s specific claim.
LEGAL PRECEDENT
OWCP regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”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 condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.4
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.5 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.6 In situations where there are opposing medical
reports of virtually equal weight and rationale, and the case is referred to an impartial medical
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based on a proper factual background, must be given special weight.7
3

20 C.F.R. § 10.5(q).

4

Lourdes Harris, 45 ECAB 545, 547 (1994).

5

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

6

R.C., 58 ECAB 238 (2006).

7

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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ANALYSIS
Appellant, a laborer at a coal burning power plant, alleged that he had been exposed to
coal dust and asbestos resulting in occupational pneumoconiosis with pulmonary asbestosis and
chronic bronchitis. Appellant’s attending physician, Dr. Baker, examined x-rays dated
November 17, 2011 and opined that appellant had sufficient employment exposures to result in
occupational pneumoconiosis category 1/1 and irregular opacities suggesting pulmonary
asbestosis. He diagnosed occupational pneumoconiosis with pulmonary asbestosis, chronic
bronchitis history of ischemic heart disease, hyperlipidemia, essential hypertension, hearing loss,
and colon disease and stated that appellant’s bronchitis and occupational pneumoconiosis were
caused by his exposure to asbestos and other dusts, odors, and fumes he was exposed to during
his employment.
OWCP then referred appellant for a second opinion evaluation with Dr. Haller who
diagnosed mild COPD with bronchodilator responsiveness. Dr. Haller opined that cigarette
smoking was responsible for most of the obstruction. He noted that significant dust exposure
when combined with cigarette smoke could accelerate the rate of development of obstruction.
Dr. Haller reviewed appellant’s February 1, 2013 CT scan which demonstrated bi-apical fibrotic
scarring and multiple sub pleural blebs and noncalcified nodular density in the left apex as well
as sub pleural scarring in the right upper lobe. Appellant’s right upper lobe demonstrated
nodular appearing interstitial scarring and no calcified pleural plaques. Dr. Haller found that the
bi-apical bullous disease and fibrotic scarring was consistent with emphysema from appellant’s
smoking history. He concluded that appellant’s CT scan supported the diagnosis of COPD and
not pneumoconiosis.
OWCP determined that there was a conflict of medical opinion evidence between
Dr. Haller and Dr. Baker and referred appellant to Dr. Majmudar for an impartial medical
examination, pursuant to 5 U.S.C. § 8123(a). Dr. Majmudar reviewed the statement of accepted
facts and performed a physical examination as well as review of x-rays. He found that appellant
exhibited shortness of breath and bilateral diffuse end expiratory wheeze. Dr. Majmudar noted
that appellant’s chest x-ray demonstrated no evidence of pleural plaque or any nodular interstitial
infiltrate. He diagnosed chronic obstructive airway impairment, COPD, chronic bronchitis, and
emphysema due to cigarette smoking. Dr. Majmudar found no evidence of any pneumoconiosis
or asbestosis or any asbestos-related disease.
The Board finds that Dr. Majmudar’s report was sufficiently detailed and well reasoned
to resolve the conflict of medical opinion evidence and constitute the weight of the medical
opinion. Dr. Majmudar’s report was based on a proper factual background, included findings on
physical examination as well as reviews of appellant’s x-rays and offered a clear opinion that his
current pulmonary conditions were due to his cigarette smoking rather than due to his
employment exposures. He noted that appellant’s x-rays did not demonstrate any pleural plaque
or any nodular interstitial infiltrate suggestive of asbestosis or pneumoconiosis.
As
Dr. Majmudar provided his findings in support of his conclusion that appellant’s conditions were
not employment related Dr. Majmudar’s report as the impartial medical examiner does not
support appellant’s claim.

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The Board finds that appellant has not submitted the necessary medical opinion evidence
to meet his burden of proof. While counsel argues that Dr. Baker as a “B” reader is entitled to
special weight, OWCP procedures and regulations do not support this argument. Dr. Majmudar
as a Board-certified pulmonologist was of the appropriate specialty to resolve the conflict of
medical opinion and as noted above, his report is entitled to the special weight accorded an
impartial medical examiner under FECA.
Following the oral hearing, counsel submitted publications regarding COPD, coal
workers’ lung, and airway disease. The Board finds that evidence, such as newspaper clippings,
medical texts, and excerpts from publications, is of no evidentiary value to establish the
necessary causal relationship, as it is of general application and is not determinative of whether
the relevant employment exposure caused the specific condition claimed.8
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that his pulmonary conditions are causally related to his accepted employment
exposures.

8

P.J., Docket No. 14-498 (issued May 19, 2014); Gloria J. McPherson, 51 ECAB 441 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the April 2, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.9
Issued: December 1, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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

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Appearances:
Robyn March, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1592
Issued: February 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 27, 2011 appellant, through her attorney, filed a timely appeal from a
December 30, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability commencing
February 1, 2010.
FACTUAL HISTORY
On October 11, 1989 appellant, then a 32-year-old clerk, filed a traumatic injury claim,
Form CA-1, alleging that she sustained a back injury in the performance of duty on
October 6, 1989. She indicated that she injured her back while lifting and pulling a sack of mail.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for a back strain. Appellant returned to work at fours a day and to a
full-time modified position on September 25, 1991.
The record indicates that appellant underwent back surgery on March 26, 1997. The
surgeon, Dr. Konrad Barth, described the surgery as bilateral L5-S1 laminotomies, radial
discectomy and interbody fusion. OWCP accepted the surgeries as causally related to the
employment injury.2
On February 1, 2010 appellant filed a recurrence of disability, Form CA-2a, commencing
on that date. She stated that her light-duty job had been withdrawn pursuant to the National
Reassessment Process (NRP). The record contains a February 1, 2010 letter from the employing
establishment advising appellant that it had determined no work was available within her work
restrictions.
The employing establishment stated that appellant would be placed on
administrative leave and if she presented new medical documentation, it would be reviewed by
the Reassessment Team. In a letter dated February 16, 2010, it advised that she had applied the
protocols of the NRP and was unable to locate available work.
With respect to medical evidence, appellant submitted a form report from Dr. Linford
Stillson, an osteopath, dated December 22, 2009. The form report was an employing
establishment form requesting clarification of work restrictions. In response to a request for the
work-related diagnosis, Dr. Stillson stated chronic low back pain and provided another diagnosis
that is illegible. He checked “no” as to whether residuals had resolved.
By decision dated April 5, 2010, OWCP denied the claim for a recurrence of disability.
It stated that medical records “do not demonstrate that you need continued work restrictions and
are unable to return to regular duty.” There was no reference to the December 22, 2009 form
report.
Appellant requested a hearing, which was held on October 13, 2010. She submitted an
April 19, 2010 report from Dr. Stillson, who referred to 1998 carpal tunnel and epicondylitis
conditions and the October 6, 1989 injury.3 As to the 1989 back injury, Dr. Stillson stated that
appellant had continuing work restrictions since 1991. He stated that the restrictions were
employment related.
By decision dated December 30, 2010, OWCP’s hearing representative affirmed the
April 5, 2010 decision. The hearing representative found that Dr. Stillson did not establish a
change in appellant’s employment-related condition as of February 1, 2010. Regarding the
withdrawal of the light-duty position, the hearing representative stated, “While the dismissal
acted effectively as a withdrawal of light-duty status, it cannot form the basis for a disability
compensation claim because the dismissal had nothing to do with the claimant’s ability to
perform the limited-duty requirements of the job assignment. As the withdrawal of the position

2

In the December 30, 2011 decision, OWCP’s hearing representative stated that the claim had been accepted for
aggravation of L5-S1 degenerative disc disease.
3

Dr. Stillson refers to a separate OWCP claim number for the 1998 injury.

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was premised on the [employment establishment] general withdrawal regarding the NRP, the
loss of the claimant’s position does not constitute a recurrence of disability.”
LEGAL PRECEDENT
OWCP’s regulations define the term recurrence of disability as follows:
“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
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”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 of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, 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 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.6
FECA Bulletin No. 09-05 outlines procedures for light-duty positions withdrawn
pursuant to the NRP. Regarding claims for total disability when a wage-earning capacity
decision has not been issued, the Bulletin provides:
“1. If the claimant has been on light duty due to an injury[-]related condition
without an LWEC [loss of wage-earning capacity] rating (or the CE [claims
examiner] has set aside the LWEC rating as discussed above), payment for total
wage loss should be made based on the CA-7 as long as the following criteria are
met:
“The current medical evidence in the file (within the last 6 months)
establishes that the injury[-]related residuals continue;
4

20 C.F.R. § 10.5(x).

5

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman , 38 ECAB
222 (1986).
6

Maurissa Mack 50 ECAB 498 (1999).

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“The evidence of file supports that light duty is no longer available; and
“There is no indication that a retroactive LWEC determination should be
made. (Note -- Retroactive LWEC determinations should not be made in
these NRP [National Reassessment Program] cases without approval from
the District Director.)”7 The Bulletin also states that if the medical
evidence is not sufficient, the claims examiner should request current
medical evidence from the employing establishment and the claimant.”
ANALYSIS
Appellant filed a claim for disability commencing February 1, 2010. The record
indicates that her light-duty job was withdrawn pursuant to the NRP process. The guidelines for
evaluating a claim for total disability under these circumstances are noted above in FECA
Bulletin 09-05,8 but in this case OWCP failed to properly consider the evidence presented.
OWCP’s hearing representative states that while there was a withdrawal of the position under
NRP, the loss of the light-duty position does not constitute a recurrence of disability.
It is well established, as noted above, that a withdrawal of a light-duty position is
considered a recurrence of disability under OWCP regulations. The guidance from FECA
Bulletin 09-05 indicates that OWCP should consider whether the current medical evidence
established that appellant had continuing employment-related residuals at the time of the
withdrawal of the light-duty position. If the medical evidence is not sufficient, OWCP should
request additional evidence.9
In this case, OWCP failed to properly follow the guidelines in FECA Bulletin 09-05. It
did not properly review the medical evidence from Dr. Stillson in light of the withdrawal of the
light-duty position. Accordingly, the case will be remanded to OWCP for further consideration.
After such further development as OWCP deems necessary, it should issue an appropriate
decision with proper findings on the issue presented.
CONCLUSION
The Board finds the case must be remanded to OWCP for proper findings on the issue
presented.

7

FECA Bulletin 09-05 (issued August 18, 2009).

8

The Bulletin refers to a Form CA-7, claim for compensation, but the Form CA-2a, claim for a recurrence of
disability, also represents a claim for total disability.
9

It would be OWCP’s burden of proof to show that employment-related residuals had ceased. See Joseph
Roman, 55 ECAB 233 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 30, 2010 is set aside and the case remanded for further
actions consistent with this decision of the Board.
Issued: February 13, 2012
Washington, DC

Alec J. Koromilas, 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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