United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
DEFENSE COMMISSARY AGENCY,
PATRICK AIR FORCE BASE, FL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1595
Issued: December 19, 2007

Case Submitted on the Record

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

JURISDICTION
On May 31, 2007 appellant filed a timely appeal from the June 26, 2006 and March 27,
2007 merit decisions of the Office of Workers’ Compensation Programs, which terminated her
compensation for wage loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the termination.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for wage
loss.
FACTUAL HISTORY
On December 7, 2001 appellant, then a 49-year-old lead sales store checker, completed a
claim alleging that she sustained an injury in the performance of duty that day: “Cashier called
for [assistance] on register #4 went to her and was leaving to go get change fund slip upon grapes
smashed on floor.” She explained that she fell on her buttocks and right leg, and customers

helped her up.1 Appellant did not stop work. The record indicates that the Office accepted the
claim, without formal adjudication, for strain, right leg/buttock.
On April 27, 2004 appellant filed a claim alleging that walking on a concrete floor for the
prior two years aggravated her December 7, 2001 right knee injury: “My right knee after
receiving therapy was ok for first year after injury 2002 [sic] but into 2003 the knee would swell
and hurt slightly but increased greatly after walking on my job and standing for seven hours a
day out of my eight-hour workday.” She first became aware of this condition on August 1, 2003.
Appellant underwent a posterior horn medial meniscectomy, right knee, on May 6, 2004.
The Office accepted appellant’s occupational disease claim for aggravation of traumatic
arthritis of the right knee. The Office also accepted derangement of the posterior horn of the
medial meniscus of the right knee, deep vein thrombosis (DVT) of the right leg, lumbago and
right-sided sciatica. Appellant received compensation for wage loss on the periodic rolls.
On June 22, 2005 Dr. Jeffrey Greenspoon, an attending orthopedic surgeon, found that
appellant’s overall physical examination was unchanged. He diagnosed: traumatic arthritis of
the right knee with questionable osteochondral defect; history of essential hypertension; history
of cardiac murmur; status post knee arthroscopy with medial or lateral meniscectomy;
osteoarthritis, lower leg; right knee pain; lumbar arthritis; sciatica; minor diagnosis of DVT, right
leg; post phlebitic right leg edema; and weight disorder. Noting no change in her work status,
Dr. Greenspoon reported that appellant was disabled for work: “This lady is being considered
disabled for the combination of the right knee condition, lumbar spine/radiculopathy, DVT and
chronic anticoagulation.” He reported that appellant’s restrictions were permanent.
The Office obtained a second opinion from Dr. D. Barry Lotman, an orthopedic surgeon.
On September 8, 2005 Dr. Lotman related appellant’s history and his findings on examination.
He reviewed a lumbar magnetic resonance imaging (MRI) scan and found no evidence of disc
herniation but did find a mild degenerative change at L5. He also reviewed the preoperative
knee MRI scan, which demonstrated that the posterior horn of the medial meniscus was
degenerated and truncated, consistent with degenerative tearing. Dr. Lotman diagnosed status
post arthroscopy right knee for torn medial meniscus, low back pain “etiology?” and status post
thrombophlebitis right lower extremity, resolved.
Dr. Lotman explained that, based on Dr. Greenspoon’s surgical findings and his own
review of the MRI scan, the mild arthritis reported in the medial compartment was degenerative,
not traumatic. He found no current objective physical findings consistent with arthritis.
Dr. Lotman added that appellant had no objective evidence of lumbago or right-sided sciatica:
“She continues to have subjective complaints but no objective findings.” Dr. Lotman concluded
that appellant was unable to completely perform all the functions of her date-of-injury job. He
did not find that appellant could stand on her feet 4 hours a day or bend and stoop for 30 minutes
a day. He reported, however, that appellant could work eight hours a day with restrictions
lasting six to eight weeks. Dr. Lotman recommended that appellant return to her attending
orthopedic surgeon for additional and ongoing treatment for her right knee symptoms. But he
felt that further treatment of her lumbosacral spine was not reasonable, related or necessary.
1

Appellant later told medical providers that she fell on her right knee.

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The Office determined that a conflict in medical opinion existed between Dr. Lotman and
Dr. Greenspoon on the issue of injury residuals and work capacity. To resolve the conflict, the
Office referred appellant, together with the medical record and a statement of accepted facts, to
Dr. Emmanuel D. Scarlatos, a Board-certified orthopedic surgeon.
On November 3, 2005 Dr. Scarlatos noted appellant’s chief complaints and related her
history. He described his findings on examination and reviewed the MRI scans. Dr. Scarlatos
diagnosed low back right radicular syndrome and bilateral carpal tunnel syndromes, per a
neurodiagnostic study not available for review. He opined that appellant’s low back radiculitis
was an objective residual causally related to her work injury and that the mildly positive
radicular symptoms he elicited on examination required further investigation. Dr. Scarlatos
recommended neurodiagnostic studies. He offered the following opinion on appellant’s work
status:
“With respect to this individual’s ability to return to her prior employment and
fulfill the duties as a lead sales store clerk, it is this referee’s professional opinion
that she would not be able to adequately perform all of these duties and functions.
At this juncture, she would be unable to comply with standing for the length of
time required for her to be standing, and she would be unable to cope as well with
the bending and stooping that is required. I do not foresee significant problems
with her pulling objects, helping with grocery purchases, collecting and issuing
cash tills, making service calls, or coping with other activities involved with
customer service. I would limit her lifting to a maximum of 15 [to] 20 pounds.
She should change positions frequently and could sit between 2 [to] 3 hours daily.
Ambulation should be intermingled with short periods of sitting for the time being
until further clarification can be obtained through neurodiagnostic [study]. It is
my opinion that the claimant/examinee could be employed at an eight-hour day.
“Again, this referee is in complete agreement with the findings of Dr. D. Barry
Lotman with respect to the investigations as well as with the examination of the
right knee where, again, subjective complaints far outweigh the clinical findings.”
On a work capacity evaluation form, Dr. Scarlatos indicated that appellant’s restrictions
would apply for two to three weeks pending neurodiagnostic study. On December 22, 2005 he
reported the neurodiagnostic study to be normal. Dr. Scarlatos again reviewed the MRI scan
films, which suggested mild-to-moderate degenerative disc disease at L4-5-S1 with broad-based
focal prominence, right of midline, at the S1 level with very mild disc bulge at L4-5 and no
significant foraminal intrusion. He saw no evidence of herniations. Based on those findings and
the neurodiagnostic study, Dr. Scarlatos recommended no surgical intervention.
The Office asked Dr. Scarlatos to clarify his restrictions in light of the normal
neurodiagnostic study. On April 13, 2006 he replied that he reviewed appellant’s job
requirements “and would indicate that the claimant/examinee would be able to accomplish all of
these requirements (including standing 4 hours a day, sitting up to 3 hours a day, simple grasping
up to 6 hours a day, bending/stooping up to 30 minutes per day, and lifting, pushing and pulling
objects up to 20 pounds for up to 30 minutes a day).” Furthermore, assuming that appellant was

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able to intermingle standing and sitting, Dr. Scarlatos stated that the breaks previously requested,
consisting of five minutes per hour, would not be necessary.
On May 17, 2006 the Office proposed to terminate appellant’s compensation for wage
loss. The Office found that the weight of the medical evidence rested with the opinion of the
impartial medical specialist, Dr. Scarlatos, who opined that appellant was able to return to the
full duties of her date-of-injury position as a lead sales store checker.
On June 14, 2006 appellant wrote to explain about her condition and why she was not
able to return to work at that time. The Office received a May 9, 2006 report from
Dr. Richard A. Hynes, an orthopedic surgeon, who diagnosed lumbar degenerative disc disease
at L5-S1, central herniated nucleus pulposus with probably right L5-S1 radiculopathy and
lumbar spondylosis. Dr. Hynes stated: “[Appellant] is current[ly] having pain management and
is temporarily disabled.”
In a decision dated June 26, 2006, the Office terminated appellant’s compensation for
wage loss effective that date. The Office found that the opinion of the impartial medical
specialist, Dr. Scarlatos, represented the weight of the medical evidence.
On June 20, 2006 Dr. Hynes diagnosed L4-5 and L5-S1 mechanical instability secondary
to annular tears and intermittent disc herniation. He anticipated an 80 percent improvement in 6
to 12 months and expected appellant to return to a working status within 6 to 9 months.
On November 7, 2006 an Office medical adviser reviewed the medical evidence,
including recent reports from appellant’s attending physicians. He concluded that a proposed
spinal fusion procedure should be authorized, as it “was indicated in the treatment of her
accepted condition.” The Office authorized the surgery.
On November 29, 2006 appellant requested reconsideration. She argued that the
statement of accepted facts was incomplete because it did not describe the mechanism of injury,
and therefore Dr. Lotman’s and Dr. Scarlatos’ reports should not be considered valid. Appellant
argued, in the alternative, that Dr. Lotman agreed with her treating physicians that she could not
perform her date-of-injury position and therefore the Office should not have sent her to a referee
physician. She added that Dr. Scarlatos made an unsupported assumption about the possibility of
intermingling standing and sitting.
The employing establishment replied that on July 20, 2005 it notified the Office that
appellant’s position required “standing -- intermittent -- 4 hours per day.” The employing
establishment made clear that “the physical activity is intermittent as there are frequent changes
in tasks,” and that appellant’s tour of duty afforded two 15-minute breaks per shift and a lunch
period of 30 minutes.
Appellant underwent spinal fusion surgery on January 24, 2007.
In a decision dated March 27, 2007, the Office reviewed the merits of appellant’s case
and denied modification of its June 26, 2006 decision. The Office explained that, in an
occupational disease case, the acceptance of an aggravation of preexisting arthritis was
necessarily due to the performance of job requirements, so it was not fatal for the statement of
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accepted facts not to state such exactly that way. The Office added: “While it is clearly noted
that the current evidence of record indicates that you have since undergone surgery authorized by
this office at Holmes Regional Medical Center, the additional medical evidence received did not
provide any medical rationale to support that you could not return to work in your date-of-injury
position as [l]ead [s]ales [s]tore [c]hecker as of the date of the June 26, 2006 decision.”
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.3
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.5
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.6 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.7
ANALYSIS
A conflict in medical opinion arose between Dr. Greenspoon, the attending orthopedic
surgeon, and Dr. Lotman, the referral orthopedic surgeon, on residuals of the accepted conditions
and on the nature of appellant’s disability. Dr. Greenspoon considered appellant disabled for the
combination of her right knee condition, lumbar spine/radiculopathy, DVT and chronic
anticoagulation. Dr. Lotman found no current objective physical findings consistent with
arthritis, no objective evidence of lumbago or right-sided sciatica and reported that appellant’s
thrombophlebitis was resolved. Although both reported that appellant was currently unable to
return to her date-of-injury position, Dr. Greenspoon reported that appellant’s restrictions were
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f) (1999).

4

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

5

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
6

5 U.S.C. § 8123(a).

7

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

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permanent, indicating that appellant could never return to regular duty. Dr. Lotman reported that
restrictions would last only six to eight weeks, indicating that appellant could begin full-time
regular duty after an initial period of work hardening. The Board finds that the Office properly
referred appellant to an impartial medical specialist, or referee physician, under 5 U.S.C.
§ 8123(a).
The Board finds that the opinion of Dr. Scarlatos constitutes the weight of the medical
evidence and establishes that appellant was no longer disabled by her accepted employment
injuries. The Office provided Dr. Scarlatos with the medical record and a statement of accepted
facts so he could base his opinion on a proper factual and medical background. He agreed with
Dr. Lotman that appellant’s subjective right knee complaints far outweighed the clinical findings.
He found that low back radiculitis was the only objective residual causally related to her work
injury and recommended further neurodiagnostic study. When that came back normal, he saw no
reason to restrict appellant from returning to her prior employment and fulfilling her duties as a
lead sales store clerk. He reviewed appellant’s job requirements and reported that she would be
able to accomplish all of them, including standing 4 hours a day and bending or stooping up to
30 minutes per day.
The Board finds that Dr. Scarlatos’ opinion is based on a proper background and is
sufficiently well reasoned that it must be given special weight in resolving the conflict between
appellant’s physician and the Office referral physician. The June 14, 2006 report of Dr. Hynes,
another of appellant’s physicians, lacks the history and medical rationale necessary to create a
conflict with Dr. Scarlatos. Dr. Hynes stated that appellant was temporarily disabled, but his
brief report did not explain whether this was based on objective findings of accepted conditions
or on appellant’s subjective complaint of pain. As Dr. Scarlatos’ opinion stands as the weight of
the medical evidence, the Board finds that the Office met its burden of proof. The Board will
affirm the Office’s June 26, 2006 decision to terminate compensation for wage loss.
Appellant contended that the Office’s failure to describe explicitly a mechanism of injury
in this occupational disease case was fatal to the statement of accepted facts. The Board notes,
however, that the statement described the physical requirements of appellant’s date-of-injury
position and the accepted conditions. Dr. Lotman’s report makes clear that he disagreed with
Dr. Greenspoon on issues of injury-related residuals and work capacity. Referral to a third
physician under 5 U.S.C. § 8123(a) was therefore warranted. The employing establishment
made clear that the standing required of appellant’s position was intermittent, so Dr. Scarlatos’
opinion does not rest on an unsupported assumption. Because the weight of the evidence shows
that appellant was no longer disabled by her accepted injuries, the Board will affirm the Office’s
March 27, 2007 decision to deny modification of its termination, which was effective
June 26, 2006.

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CONCLUSION
The Board finds that the Office has met its burden of proof to justify the termination of
appellant’s compensation for wage loss.8
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2007 and June 26, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Where the Office meets its burden to justify the termination of compensation benefits, the burden switches to
the claimant to establish that any subsequent disability is causally related to the accepted employment injury.
Wentworth M. Murray, 7 ECAB 570 (1955); Maurice E. King, 6 ECAB 35 (1953). Whether appellant continued to
be disabled by her accepted injuries after June 26, 2006, or whether her authorized spinal fusion surgery caused a
recurrence of disability, entitling her to later compensation for wage loss, are issues beyond the scope of this appeal.
The Office has issued no final decision on any such claim over which the Board may presently take jurisdiction.

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

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

Docket No. 10-1490
Issued: March 11, 2011

Case Submitted on the Record

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

JURISDICTION
On May 11, 2010 appellant, through her attorney, filed a timely appeal from a
December 29, 2009 merit decision of the Office of Workers’ Compensation Programs denying
her claim for compensation and an April 5, 2010 decision denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury in the performance of duty; and (2) whether the Office properly denied her
request for further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 9, 2009 appellant, then a 33-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on January 31, 2009 she sustained an injury to her left
shoulder when she felt a pull as she was moving a tray of mail onto the long life vehicle (LLV).

On the reverse side of the form, her supervisor indicated by check mark that appellant was
injured in the performance of duty, the injury was not caused by a third party, and his knowledge
of the facts agreed with statements of her and/or witnesses.
In a February 6, 2009 narrative statement, appellant indicated that after the January 31,
2009 incident, her shoulder got better for about a week but then became extremely sore as the
work weeks continued.
In a February 6, 2009 medical report, Dr. Chris Panagopoulos, a treating chiropractor,
stated that appellant was moving a tray at work and felt a sharp pain in her shoulder which
continued to bother her on a regular basis. He diagnosed left rotator cuff tendinitis, bursitis and
radicular pain into her lateral proximal arm. In an April 23, 2009 report, Dr. Panagopoulos
reported that appellant’s pain was localized to the cervical spine distally and also along the
anterior/posterior shoulder with activity. He recommended a cervical and left shoulder magnetic
resonance imaging (MRI) scan.
In a March 10, 2009 (Form CA-17), Dr. Panagopoulos stated that appellant was
diagnosed with left rotator cuff tendinitis but that she could return to work with no restrictions.
He further indicated by check mark that her condition was caused or aggravated by her
employment activity.
In a May 12, 2009 report, Dr. Terry L. Cohen, a Board-certified diagnostic radiologist,
performed an MRI scan on appellant’s left shoulder and cervical spine for the alleged
work-related injury that occurred on January 31, 2009. He noted that her left shoulder showed
suspect minimal arthritic changes at the acromioclavicular (AC) joint, no rotator cuff tear or
gross fibrous labral tear and minimal bursitis involving long head biceps tendon sheath. The
cervical MRI scan showed degenerative disc desiccation with no focal disc herniation or spinal
stenosis.
A number of request for authorization forms were received from Dr. Gregory Zinni,
Board-certified in family medicine, requesting physical therapy, an MRI scan of the neck and left
upper extremity and treatment for appellant’s shoulder and cervical spine.
By letter dated June 19, 2009, the Office advised appellant that additional factual and
medical information was needed in support of her claim. Specifically, it noted that due to factual
inconsistencies, it was unable to determine if the injury occurred during one work shift in
October 2008, during one work shift on January 31, 2009 or occurred over a period of more than
one work shift.
Appellant submitted a June 29, 2009 medical report dictated by Dr. Panagopoulos,
reviewed and agreed upon by Dr. Zinni, diagnosing left rotator cuff tendinitis, bursitis. The
report stated that she was doing better but that her shoulder and neck pain were slightly
aggravated beyond normal at work. Appellant continued to have pain on a regular basis despite
her activities of daily living (ADL) almost returning to normal. The report also noted that the
same activities and repetitive nature of her job exacerbated the pain but that pain levels remained
low. The report recommended that appellant continue working without restrictions unless the
problem persisted.

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In an undated letter, appellant stated that she hurt her shoulder in a traumatic injury
incident in October 2008 and again on January 31, 2009 when she felt a pull in her shoulder as
she was moving a tray of mail in the LLV. Regarding an occupational disease claim she
explained that she was experiencing pain in her left arm and shoulder when delivering mail for
work, approximately three hours each workday.
By decision dated July 23, 2009, the Office denied appellant’s claim finding that the
medical evidence did not demonstrate that the left shoulder injury was related to the established
work-related events. It recognized her claim as alleging a traumatic injury which occurred on
January 31, 2009 and further noted that Dr. Panagopoulos, appellant’s chiropractor, could not be
considered a physician under the Act since his medical report did not provide a diagnosis of
subluxation of the spine.
On August 13, 2009 appellant, through her attorney, requested an oral hearing before an
Office hearing representative. At a November 4, 2009 hearing, she submitted an October 5,
2009 factual statement alleging that she had initially seen Dr. Zinni, her family doctor, who
referred her to Dr. Panagopoulos, a chiropractor in his office for physical therapy. Appellant
further stated that her pain had moved up to her neck area.
During the November 4, 2009 hearing, appellant’s attorney argued that Dr. Zinni
diagnosed appellant’s shoulder injury after the MRI scan showed tendinitis and had his on-staff
chiropractor, Dr. Panagopoulos, perform the recommended therapy. He also argued that while
Dr. Panagopoulos submitted medical reports diagnosing left rotator cuff tendinitis, the April 23,
2009 report was countersigned by Dr. Zinni and the June 29, 2009 report was reviewed and
agreed upon by Dr. Zinni. Appellant’s attorney argued that, effectively, the medical opinions
were those of Dr. Zinni rather than a chiropractor. He also stated that the Office failed to fully
develop the case by sending a follow up letter to Dr. Zinni about causal relationship. Finally,
appellant’s attorney stated that appellant would submit a statement from Dr. Zinni explaining
causal relationship. The record was held open for 30 days.
By decision dated December 29, 2009, an Office hearing representative affirmed the
Office’s July 23, 2009 decision, noting that appellant did not submit the promised report from
Dr. Zinni addressing the injury and causation.
On March 1, 2010 appellant, through her attorney, requested reconsideration of the
July 23 and December 29, 2009 Office decisions, basing the request on Dr. Zinni’s medical
report.1 By letter dated March 12, 2010, the Office informed her attorney that no report from
Dr. Zinni had been received.
By decision dated April 5, 2010, the Office denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included new and relevant

1

On February 1, 2010 appellant, through her attorney, initially requested an appeal to the Board from the
December 29, 2009 Office decision. On March 1, 2010 she also requested reconsideration of the Office decision.
On March 19, 2010, after receiving appellant’s request for dismissal on March 10, 2010, the Board dismissed the
appeal, Docket No. 10-804.

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evidence on whether the employment incident caused a specific injury, noting that the report
from Dr. Zinni was never received.
LEGAL PRECEDENT -- ISSUE 1
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.
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 alleged to have occurred.2 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.3 Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. This medical opinion must include an
accurate history of the employee’s employment injury and must explain how the condition is
related to the injury. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.4
ANALYSIS -- ISSUE 1
The Office accepted that the January 31, 2009 incident occurred as alleged. The issue is
whether appellant established that the incident caused a left shoulder injury. The Board finds
that she did not submit sufficient medical evidence to support that her shoulder injury is causally
related to the January 31, 2009 employment incident.5
In a February 6, 2009 medical report, Dr. Panagopoulos stated that appellant was moving
a tray at work and felt a sharp pain in her shoulder which continued to bother her as weeks
passed. He diagnosed left rotator cuff tendinitis, bursitis. In a March 10, 2009 CA-17 form,
Dr. Panagopoulos indicated by checkmark that appellant’s left rotator cuff tendinitis was caused
or aggravated by her employment activities. He also submitted an April 23, 2009 report which
2

J.F., 61 ECAB ___ (Docket No. 09-1061, issued November 17, 2009).

3

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4

James Mack, 43 ECAB 321 (1991).

5

See Robert Broome, 55 ECAB 339 (2004).

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was not countersigned by Dr. Zinni as appellant’s attorney had argued during the November 4,
2009 oral hearing. Section 8101(2) of the Act provides that the term “physician” includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.6 As Dr. Panagopoulos did not diagnose a spinal subluxation based on x-ray, he is not a
physician under the Act and his reports are of no probative medical value.7
A June 29, 2009 report dictated by Dr. Panagopoulos and countersigned by Dr. Zinni
stated that appellant was doing better but continued to have regular pain which was exacerbated
by her activities and the repetitive nature of her job. They diagnosed left rotator cuff tendinitis
and prescribed active therapy with no work restrictions. Appellant also submitted a number of
requests for authorization from Dr. Zinni requesting physical therapy, an MRI scan of the neck
and upper left extremity, and treatment for her shoulder and cervical spine.
The Board finds that Dr. Zinni’s opinion is not well rationalized because it did not detail
appellant’s prior medical history or treatment. Further, Dr. Zinni failed to identify or specifically
address any clinical findings or test results covering the left shoulder. He did not determine that
appellant’s condition was work related and did not offer a rationalized opinion on the causal
relationship between her diagnosed condition and the factors of employment implicated in the
claim.8 While Dr. Zinni generally stated that her repetitive job activities were exacerbating her
pain, he never stated that the January 31, 2009 employment incident caused or contributed to the
shoulder injury. 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.9 The
opinion of a physician supporting causal relationship must rest on a complete factual and medical
background supported by affirmative evidence, address the specific factual and medical evidence
of record and provide medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.10 Therefore,
Dr. Zinni’s medical reports are insufficient to meet appellant’s burden of proof.
The remaining medical evidence of record does not establish a causal relationship
between appellant’s shoulder injury and the January 31, 2009 employment incident. Diagnostic
testing was obtained by Dr. Cohen and the May 12, 2009 MRI scan of the left shoulder showed
suspect, minimal, arthritic changes at the AC joint and minimal bursitis. The cervical MRI scan
showed degenerative disc desiccation with no focal disc herniation or spinal stenosis. While
Dr. Cohen diagnosed appellant’s spine and shoulder injury, he did not identify the cause of the
problem and did not mention her employment. The Board has held that medical evidence that
6

5 U.S.C. § 8101(s); Sheila A. Johnson, 46 ECAB 323 (1994).

7

See A.O., 60 ECAB ___ (Docket No. 08-580, issued January 28, 2009) (without diagnosing a subluxation from
x-ray, a chiropractor is not a physician under the Act).
8

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

C.B., 61 ECAB ___ (Docket No. 09-2027, issued May 12, 2010); S.E., 60 ECAB ___ (Docket No. 08-2214,
issued May 6, 2009).
10

See Lee R. Haywood, 48 ECAB 145 (1996).

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does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.11 Without medical reasoning explaining how the
January 31, 2009 employment incident caused the shoulder injury, Dr. Cohen’s report is
insufficient to meet appellant’s burden of proof.12
The record does not contain a rationalized medical report explaining how appellant’s left
shoulder condition resulted from the January 31, 2009 employment incident. Appellant has
alleged that her accepted duties as a rural carrier associate caused her left shoulder injury. Her
statements, however, do not constitute medical evidence which is necessary to establish causal
relationship. Neither the fact that the condition became apparent during a period of employment,
nor the belief that the condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.13 Therefore, appellant’s belief that her condition was
caused by the work-related exposure is not determinative.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.14 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.15 Causal relationships must be established by rationalized medical opinion evidence.
Appellant failed to submit such evidence and the Office properly denied her claim for
compensation.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.16 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.17

11

Supra note 9.

12

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008).

13

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

14

Daniel O. Vasquez, 57 ECAB 559 (2006).

15

D.D., 57 ECAB 734 (2006).

16

D.K., 59 ECAB 141 (2007).

17

K.H., 59 ECAB 495 (2008).

6

ANALYSIS -- ISSUE 2
The Board finds that the refusal of the Office to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
In the March 1, 2010 reconsideration request, appellant’s attorney requested that the
record be held open for 30 days to allow them to submit a medical report from Dr. Zinni
addressing causal relationship. On March 12, 2010 the Office informed him that it had not yet
received this report. To require it to reopen a case for reconsideration, appellant must submit
relevant evidence not previously of record or advance legal contentions not previously
considered.18 She failed to submit any medical evidence addressing causal relationship and no
such report was received by the Office. Further, appellant’s attorney brief recitation requesting
reconsideration did not show that the Office erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered by the Office.19
Thus, appellant has not established that the Office abused its discretion in its April 5,
2010 decision under section 8128(a) of the Act because she did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office, or submit relevant and pertinent new evidence not
previously considered by the Office.20
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on January 31, 2009 in the performance of duty, as alleged. The
Office properly denied her request for reconsideration without a merit review.

18

Helen E. Tschantz, 39 ECAB 1382 (1988); Ethel D. Curry, 35 ECAB 737 (1984); Edward Matthew Diekemper,
31 ECAB 224 (1979); E.g., Eladio Joel Abrera, 28 ECAB 401 (1977).
19

Id.

20

Sherry A. Hunt, 49 ECAB 467 (1998).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated April 5, 2010 and December 29, 2009 are affirmed.
Issued: March 11, 2011
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, CLEARING
STATION, Chicago IL, Employer
__________________________________________

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

Docket No. 16-1733
Issued: May 16, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 30, 2016 appellant, through counsel, filed a timely appeal from the
June 8, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a back injury causally
related to the October 29, 2014 employment incident.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel contends that OWCP’s decision nick-picks the evidence and creates
inconsistency when none actually exists.
FACTUAL HISTORY
On November 5, 2014 appellant, then a 38-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 29, 2014 he sustained an injury as a result of
walking down stairs onto an uneven surface while delivering mail at work. He stopped work on
October 30, 2014. In an employee statement dated November 5, 2014, appellant described his
injury, indicating that on October 29, 2014 he felt a sharp twinge in his lower back while
carrying a bag of mail as he descended stairs. He continued to work that day with mild
discomfort. Later that night, appellant experienced worsening pain with spasms in his lower
back through his buttocks and into his left hamstring. He was unable to sleep or to work the next
day. Appellant sought medical treatment on November 5, 2014 and was prescribed medication
and referred to physical therapy. He still had difficulties standing and walking for periods of
time and noted that staying off work helped his condition.
In a November 5, 2014 medical report, Dr. Howard I. Freedberg, an attending Boardcertified orthopedic surgeon, noted a history of injury that on October 29, 2014 appellant felt a
twinge in his lower back while carrying mail down stairs. He also noted a history of his medical
treatment, family, and social background, and his current symptoms. Dr. Freedberg reported
findings on physical examination of the spine and upper and lower extremities and x-ray
examination of the lumbar spine. He provided a diagnosis of lumbar neuritis/radiculitis and
referred appellant to physical therapy. In a November 5, 2014 work status report, Dr. Freedberg
advised that appellant was medically unable to work.
In a November 19, 2014 e-mail, the employing establishment controverted appellant’s
claim, contending that he reported his accident 16 days after it had occurred.
By letter dated November 25, 2014, OWCP advised appellant of the deficiencies of his
claim and afforded him 30 days to submit additional medical evidence.
In a November 5, 2014 prescription dispensing office note, Dr. Freedberg listed a
breakdown of ingredients in a prescribed medication. In a medicine order dated December 3,
2014, Dr. Freedberg, Dr. Thomas A. McNally, a Board-certified orthopedic surgeon, Dr. Ankur
Chhadia, a Board-certified orthopedic surgeon, and Dr. Dmitry A. Novoseletsky, a Boardcertified physiatrist, listed appellant’s medication dosages for various conditions, including
spasms.
By decision dated December 30, 2014, OWCP accepted that the October 29, 2014
incident occurred as alleged. However, it denied appellant’s claim as the medical evidence was
insufficient to establish a medical condition causally related to the accepted employment
incident.
In a medicine order dated November 5, 2014, Dr. Freedberg, Dr. McNally, Dr. Chhadia,
and Dr. Novoseletsky again listed appellant’s medication dosages. In reports dated December 3,
2014 and January 22, 2015, Dr. Freedberg provided results on examination and reiterated his

2

diagnosis of lumbar neuritis/radiculitis. He opined that appellant’s traumatic injury, his
condition of ill-being, and recommended treatment were causally connected to the October 29,
2014 employment incident.3
In a February 15, 2015 letter and February 23, 2015 report, Dr. Freedberg again provided
results on examination and reiterated his diagnosis of lumbar neuritis/radiculitis and his opinion
that appellant’s condition was causally connected to the October 29, 2014 employment incident.
He noted that appellant had never previously had low back pain, prior problems, or treatment for
any back conditions.
In a May 20, 2015 decision, OWCP denied modification of the December 30, 2014
decision. It found that Dr. Freedberg’s reports did not contain a rationalized medical opinion to
establish a causal relationship between appellant’s lumbar condition and the accepted
October 29, 2014 work incident.
In reports dated May 13 to July 9, 2015, Dr. Freedberg examined appellant and reiterated
his prior diagnosis of lumbar neuritis/radiculitis and opinion on causal relationship. He related
that further review of mechanism of the injury revealed that appellant was at work and carried a
bag weighing 30 pounds as he walked down stairs. On the last step appellant felt a pull in his
lower back, stopped, “shook off,” and continued with some stiffness. Several hours later he
began to have low back spasms and pain referral down his left leg.
In a June 13, 2015 lumbar magnetic resonance imaging (MRI) scan report, Dr. Doris L.
Yip, a Board-certified radiologist, provided an impression of congenitally short pedicles with a
baseline narrow canal. She also provided an impression of small left paracentral disc protrusion
at L2-3, small central disc extrusion at L3-4, small central/left paracentral disc protrusion at L45, and mild central stenosis at T10-11, left lateral recess compromise and moderate left
neuroforaminal narrowing.
On August 25, 2015 appellant requested reconsideration of the May 20, 2015 decision.
By letter dated July 15, 2015, Dr. Freedberg clarified his prior opinion on causal
relationship and again related that appellant had never previously had low back problems or any
treatment for his back condition prior to his work injury and described the October 29, 2014
employment incident. Based on his history, he believed that appellant’s condition was causally
related. Dr. Freedberg opined that the accepted work incident indeed had certainly exacerbated
any preexisting conditions shown on the MRI scan as well as caused appellant’s significant
problems.
In a decision dated November 6, 2015, OWCP denied modification of the May 20, 2015
decision. It again found that Dr. Freedberg failed to provide a rationalized medical opinion on
causal relationship.
In a December 23, 2015 work care treatment note, Dr. Luis R. Muñoz, who specializes in
occupational medicine, noted a history of injury that on October 29, 2014 appellant was climbing
3

OWCP also received toxicology reports from Essential Testing.

3

down stairs when the leather strap on his mailbag inadvertently hooked onto the stair railing as
he quickly pulled away from the stairs. The strap around appellant’s shoulders rapidly twisted
his lower back and upper body as he quickly moved away in a downward direction. Dr. Muñoz
also noted a history of appellant’s medical treatment. He reported findings on physical
examination and provided an impression of lumbar L3-4 disc extrusion/herniation, lumbar
radiculopathy, and lumbar deconditioning. Dr. Muñoz maintained that appellant’s lumbar spine
pain and radiculopathy were a result of rapid twisting and pulling forces of a leather strap placed
on his upper and lower spine structures. The rotational forces abruptly encountered by the
lumbar discs provided the torsional and sheer forces that led to the mechanism of injury, which
caused appellant’s L3-4 extrusion herniation of the lumbar spine. Therefore, Dr. Muñoz opined
that the work injury event and mechanism of injury were consistent with the outcome of an L3-4
disc extrusion injury detected on his physical examination and a July 2015 MRI lumbar spine
scan. He addressed his treatment plan and concluded that appellant was unfit for duty and placed
him off work. In prescriptions dated December 23, 2015 and February 4, 2016, Dr. Muñoz
ordered medications to treat appellant’s condition.
On March 10, 2016 appellant requested reconsideration of the November 6, 2015
decision.
In a March 2, 2016 attending physician’s report (Form CA-20), Dr. Muñoz reiterated the
history that on October 29, 2014 appellant’s mailbag strap caught on the stair railing, injuring his
back. He also reiterated his diagnosis of lumbar L3-4 disc herniation extrusion. Dr. Muñoz
indicated by checking a box marked “yes” that this condition was caused or aggravated by an
employment activity. He explained that the twisting of appellant’s lumbar spine and torsional
sheer forces caused his herniation. In prescriptions dated March 10, 2016, Dr. Muñoz again
ordered medications to treat appellant’s condition.
In a June 8, 2016 decision, OWCP denied modification of the November 6, 2015
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

4

submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back
condition caused or aggravated by the accepted October 29, 2014 employment incident.
Appellant initially submitted several reports from Dr. Freedberg. In reports dated
December 3, 2014 to July 15, 2015, Dr. Freedberg provided a history of the October 29, 2014
work incident and diagnosed lumbar neuritis/radiculitis. He opined that appellant’s condition
and recommended medical treatment were causally related to the October 29, 2014 work
incident. Dr. Freedberg further opined that the accepted employment incident exacerbated
appellant’s preexisting conditions as verified by the MRI scan. He reasoned that appellant never
had any back symptoms or received any treatment for a back condition prior to the accepted
incident. The Board has found insufficient medical opinion finding causal relationship for an
employment injury because the employee was asymptomatic before the injury but was
symptomatic after the injury, without further supporting rationale.11 Dr. Freedberg did not
explain, with reference to the specific mechanism of injury, how walking down stairs onto an
uneven surface on October 29, 2014 caused the diagnosed back condition or aggravated
preexisting conditions, and thus his reports are of diminished probative value. While his
November 5, 2014 reports noted a history of the October 29, 2014 employment incident,
Dr. Freedberg reiterated a diagnosis of lumbar neuritis/radiculitis, and found that appellant was
medically unable to work. He did not opine whether appellant’s conditions and resultant
disability were caused by the accepted employment incident.12 Similarly, appellant’s
November 5, 2014 prescription and his November 5 and December 3, 2014 medicine orders
cosigned by Drs. Freedberg, McNally, Chhadia, and Novoseletsky did not offer a specific
opinion as to whether the accepted employment incident caused or aggravated the diagnosed
7

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

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

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

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

T.M., Docket No. 08-0975 (issued February 6, 2009); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

12

A.D., 58 ECAB 159 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

5

conditions.13 Thus, the Board finds that the reports from Drs. Freedberg, McNally, Chhadia, and
Novoseletsky are insufficient to meet appellant’s burden of proof.
The remaining medical evidence is also insufficient to establish causal relationship
between appellant’s injury and the October 29, 2014 employment incident. Dr. Muñoz’
December 23, 2015 treatment note and March 2, 2016 Form CA-20 report discussed appellant’s
history of an October 29, 2014 back injury. In the December 23, 2015 treatment note, he noted
that appellant was descending stairs while delivering mail when the leather strap on his mailbag
inadvertently hooked onto the stair railing as he quickly pulled away from the stairs. Dr. Muñoz
further noted that the strap around appellant’s shoulders rapidly twisted his lower back and upper
body as he quickly moved away in a downward direction. In the March 2, 2016 Form CA-20
report, he noted a history that appellant injured his back when the strap on his mailbag caught on
the stairs. In both reports, Dr. Muñoz attributed his lumbar L3-4 disc extrusion/herniation,
lumbar radiculopathy, and lumbar deconditioning to the October 29, 2014 incident. He,
however, relied upon an inaccurate history of injury, that appellant’s mailbag strap inadvertently
hooked around the stair railing causing his back to twist rapidly, rather than appellant injuring his
back when he walked down stairs onto an uneven surface while delivering mail. The most
contemporaneous evidence regarding the October 29, 2014 employment incident, appellant’s
Form CA-1 and his November 5, 2014 statement, made no mention of the mailbag strap being
caught on a railing.14 It is well established that medical reports must be based on a complete and
accurate factual and medical background and that medical opinions based on an incomplete or
inaccurate medical history are of diminished probative value.15 Dr. Muñoz’ remaining
prescriptions dated December 23, 2015 and February 4 and March 10, 2016 ordered medications,
but did not provide a firm diagnosis of a particular medical condition16 or a specific opinion as to
whether the accepted work incident caused or aggravated appellant’s condition.17 Therefore, his
reports are of limited probative value.
Similarly, Dr. Yip’s June 13, 2015 diagnostic test results are of limited probative value.
She failed to offer an opinion on whether appellant’s diagnosed lumbar conditions were caused
or aggravated by the accepted October 29, 2014 employment incident.18

13

Id.

14

The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence.
S.S., 59 ECAB 315 (2008).
15

See W.S., Docket No. 15-0602 (issued August 11, 2016); Joseph M. Popp, 48 ECAB 624 (1997).

16

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that, in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
17

Supra note 12.

18

Id.

6

The toxicology reports dated November 14, 2014 and March 12 and July 21, 2015 are of
limited probative value as they do not contain a physician’s medical opinion that any diagnosed
condition was causally related to the accepted work incident.19
The Board finds that appellant has failed to submit any rationalized, probative medical
evidence sufficient to establish a back injury causally related to the October 29, 2014
employment incident. Appellant, therefore, did not meet his burden of proof.
On appeal counsel contends that OWCP’s decision nick-picks the evidence and creates
inconsistency when none actually exists. For the reasons stated above, however, the Board finds
that the weight of the medical evidence does not establish a back condition causally related to the
accepted October 29, 2014 work incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a back
injury causally related to the October 29, 2014 employment incident.

19

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 8, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 16, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Oakland, CA, Employer
__________________________________________

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

Docket No. 12-1703
Issued: January 23, 2013

Case Submitted on the Record

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

JURISDICTION
On August 13, 2012 appellant filed a timely appeal of a February 21, 2012 merit decision
of the Office of Workers’ Compensation Programs denying her occupational disease claim and
from a July 17, 2012 decision finding that she abandoned her oral hearing. 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
developed bilateral hip and back pain due to factors of her federal employment; and (2) whether
OWCP’s Branch of Hearings and Review properly determined that appellant abandoned her
request for an oral hearing.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contended that she was not able to attend the hearing as she did not
have a telephone. In a letter dated August 8, 2012, she stated that she waited to use a neighbor’s
land line telephone and missed the scheduled hearing time.
FACTUAL HISTORY
On January 12, 2012 appellant, then a 33-year-old transportation security officer, filed a
notice of occupational disease alleging that she developed bilateral hip and back pain from
continuous standing on concrete floors over several years. In a letter dated January 20, 2012,
OWCP requested that she provide additional factual and medical evidence in support of her
claim. Appellant provided a January 12, 2012 statement advising that, in July 2011, she first
experienced hip and back pain due to continuous standing on the concrete floors at the
employing establishment.
She also attributed her condition to walking up stairs in
December 2011 when the airport elevator was out of service.
On January 5, 2012 Dr. Lori Beltran, an osteopath, provided work restrictions. Kathi
Lampkin, a nurse practitioner, examined appellant on July 20, 2011 and diagnosed joint pain
bilaterally in her legs and hips. She noted that appellant’s symptoms were worsened by standing
and that she often stood at work for long hours. Dr. Careen Whitley, a Board-certified family
practitioner, examined appellant on August 5, 2011 for joint pain and depression. She diagnosed
arthralgia at multiple sites, improved and depression, major disorder severe.
Dr. Whitley examined appellant on December 29, 2011 due to back pain which radiated
to her left thigh and knees. She noted that appellant’s symptoms were aggravated by sitting and
walking. Dr. Whitley diagnosed back pain. On January 5, 2012 Dr. Beltran examined appellant
for back pain. Appellant’s back pain radiated to her left calf. She found muscle spasms on
examination with a normal range of motion. In reports dated January 13, 2012, Dr. Whitley
diagnosed chronic low back and hip pain with intermittent acute exacerbations. She provided
work restrictions limiting appellant’s standing to one hour with a 10- to 15-minute break and
provided a lifting restriction of 10 pounds. Appellant underwent x-rays of the lumbosacral spine
on January 17, 2012 which demonstrated mild lumbosacral scoliosis.
By decision dated February 21, 2012, OWCP denied appellant’s occupational disease
claim finding that she did not establish a causal relationship between her federal employment and
her back condition of scoliosis.
Appellant requested an oral hearing on February 25, 2012. In a letter dated April 27,
2012, the Branch of Hearings and Review informed appellant that her hearing was scheduled for
June 12, 2012 at 2:15 p.m. eastern time and provided her with a pass code and toll-free number.
Appellant was directed to call the toll-free number a few minutes before the scheduled hearing
time and when prompted enter the pass code to connect to the telephone hearing. The letter was
sent to appellant’s address of record.
In a decision dated July 17, 2012, OWCP found that appellant had received notification
of the hearing scheduled on June 12, 2012, 30 days in advance, but failed to appear. It found no
evidence of record to establish that appellant contacted OWCP either prior to or subsequent to

2

the scheduled hearing to explain her failure to appear.
abandoned her request for a hearing.

OWCP determined that she had

LEGAL PRECEDENT -- ISSUE 1
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2
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.3
ANALYSIS -- ISSUE 1
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish a causal relationship between her diagnosed lumbosacral scoliosis and the implicated
employment duties of standing on concrete floors and walking up stairs. Appellant submitted
medical reports from Dr. Whitley and Dr. Beltran diagnosing back pain and depression. The
Board has held that the diagnosis of pain is generally a symptom and not a firm medical
diagnosis.4 Neither physician offered any other diagnosis of her physical condition. Dr. Whitley
and Dr. Beltran did not address how appellant’s back pain was due to her employment duties.
Therefore, the reports are not sufficiently detailed to meet appellant’s burden of proof in
establishing an occupational disease claim.
While appellant underwent x-rays which demonstrated lumbosacral scoliosis, there is no
medical evidence of record relating this condition to her employment activities of standing on
concrete floors or walking on stairs. Without a medical opinion on causal relationship, she has
not established that this condition is an occupational disease.

2

20 C.F.R. § 10.5(q).

3

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

4

Robert Broome, 55 ECAB 339 (2004).

3

Appellant also submitted a note from a nurse practitioner. Nurse practitioners are not
physicians under FECA and are not competent to render a medical opinion.5 As this note was
not signed by the physician it has no probative value in establishing appellant’s claim.6
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.
LEGAL PRECEDENT -- ISSUE 2
OWCP regulations provide guidance as to how a claimant may postpone a hearing, and
when a hearing will be considered to be abandoned. Section 10.622 of the regulations provide:
“(c) Once the oral hearing is scheduled and OWCP has mailed appropriate written
notice to the claimant and representative, OWCP will, upon submission of proper
written documentation of unavoidable serious scheduling conflicts (such as courtordered appearances/trials, jury duty or previously scheduled outpatient
procedures), entertain requests from a claimant or his representative for
rescheduling as long as the hearing can be rescheduled on the same monthly
docket, generally no more than seven days after the originally scheduled time.
When a request to postpone a scheduled hearing under this subsection cannot be
accommodated on the docket, no further opportunity for an oral hearing will be
provided. Instead, the hearing will take the form of a review of the written record
and a decision issued accordingly.
“(d) Where the claimant or representative is hospitalized for a nonelective reason
or where the death of the claimant’s or representative’s parent, spouse, child or
other immediate family prevents attendance at the hearing, OWCP will, upon
submission of proper documentation, grant a postponement beyond one monthly
docket.
“(e) Decisions regarding rescheduling under paragraphs (b) through (d) of this
section are within the sole discretion of the hearing representative and are not
reviewable.
“(f) 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. Where good cause is

5

G.G., 58 ECAB 389 (2007).

6

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

4

shown for failure to appear at the second scheduled hearing, review of the matter will
proceed as a review of the written record.”7
ANALYSIS -- ISSUE 2
By decision dated February 21, 2012, OWCP denied appellant’s claim for an
occupational disease. Appellant timely requested an oral hearing. In an April 27, 2012 letter, it
notified her that a telephone hearing was scheduled for June 12, 2012 at 2:15 p.m., eastern time.
OWCP instructed appellant to telephone a toll-free number and enter a pass code to connect with
the hearing representative.8 Appellant did not telephone at the appointed time. She did not
request a postponement of the hearing or explain her failure to appear at the hearing within 10
days of the scheduled hearing date of June 12, 2012. The Board therefore finds that appellant
abandoned her request for a hearing.
On appeal appellant alleged that she missed the oral hearing as she did not have a
telephone and missed the scheduled time by waiting to use a neighbor’s land line. The Board
notes that appellant did not provide notice of her difficulties until August 8, 2012 almost two
months after the scheduled date of the hearing. Moreover, the Board is precluded from
reviewing new evidence for the first time on appeal. As the August 8, 2012 letter was not before
OWCP at the time it issued its July 17, 2012 decision, the Board is precluded from reviewing it
on this appeal.9 The Board finds that appellant did not provide prompt notice of her difficulties
and abandoned her oral hearing.
CONCLUSION
The Board finds that appellant did not provide the necessary medical evidence to
establish that she sustained an injury due to her employment duties. The Board further finds that
she abandoned her oral hearing.

7

20 C.F.R. § 10.622. With respect to abandonment of hearing requests, OWCP’s procedures provide that 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.
Under these circumstances, the Branch of Hearings and Review will issue a formal decision finding that the
claimant has abandoned his or her request for a hearing. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.6(g) (October 2011); see also J.W., Docket No. 121567 (issued November 8, 2012).
8

In the absence of evidence to the contrary, a letter properly addressed and mailed in the due course of business is
presumed to have been received. See W.P., 59 ECAB 574 (2008).
9

See 20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 17 and February 21, 2012 are affirmed.
Issued: January 23, 2013
Washington, DC

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

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

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

6


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

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

Docket No. 09-417
Issued: September 30, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 28, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated March 19, 2008 terminating her compensation
benefits and a nonmerit decision dated September 19, 2008. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 19, 2008; and (2) whether the Branch of Hearings and
Review properly denied her request for a review of the written record as untimely.
FACTUAL HISTORY
On December 30, 2006 appellant, then a 50-year-old rural letter carrier, sustained injury
to her left elbow when she struck it on a cart while in the performance of duty. On February 6,
2007 the Office accepted her claim for contusion of the left elbow. On May 7, 2007 it accepted

that appellant also sustained left lateral epicondylitis. The Office authorized compensation
benefits beginning February 18, 2007.
Appellant’s attending physician Dr. Ross Marburger, a Board-certified orthopedic
surgeon, completed a note on July 17, 2007, stating: “I cannot identify a discrete pathology to
account for her multifocal ongoing elbow pain.” He opined that appellant’s symptoms exceeded
objective findings, that he had nothing more to offer her and that she had reached maximum
medical improvement. Dr. Marburger stated that appellant could continue her work status. He
advised that appellant might benefit from pain management for chronic pain and recommended
additional evaluation and treatment. Dr. Marburger’s July 17, 2007 form report indicated that
appellant should perform right hand work only.
The Office referred appellant for a second opinion evaluation with Dr. James B. Rickert,
a Board-certified orthopedic surgeon. In a report dated September 11, 2007, Dr. Rickert
reviewed appellant’s history of injury and medical treatment. He performed a physical
examination and found that she was tender on the ulnar aspect of the left forearm, all about the
elbow and up toward the back of the neck. Dr. Rickert found that appellant lacked 10 degrees of
extension of the elbow, but had full flexion, full supination and pronation with slightly reduced
strength and normally sensory findings. He stated that there were no objective findings to show
that her left elbow contusion or epicondylitis were still causing symptoms. Dr. Rickert noted
that appellant’s complaint of continued pain and stated that he did not believe that there was a
diagnosis that would explain this and no treatment was available. He opined that appellant could
return to her date-of-injury position and did not recommend additional treatment. Dr. Rickert
stated that appellant could work without restrictions. The Office referred this report to
Dr. Marburger on September 26, 2007.
In a letter dated February 6, 2008, the Office proposed to terminate appellant’s
compensation benefits on the grounds that she had no disability due to employment injuries.
On March 7, 2008 appellant disagreed with the proposed termination. In a report dated
October 25, 2007, Dr. John M. Hague, a Board-certified rheumatologist, diagnosed myalgia and
depression. He noted that appellant had erythema, swelling and tenderness in her left elbow as
well as paresthesias in her fingers. Dr. Hague recommended additional testing and treatment.
He examined appellant on February 19, 2008 and diagnosed septic olecranon bursitis. Dr. Hague
recommended surgical drainage of the site.
By decision dated March 19, 2008, the Office terminated appellant’s compensation
benefits effective that date on the grounds that she was no longer totally disabled and was
capable of performing her date-of-injury position.
Dr. Daniel C. Eby, an osteopath, completed a report on April 9, 2008. He noted that
appellant was experiencing pain over her left elbow and the lateral epicondyle and pain over her
left olecranon area. Dr. Eby noted her employment history of hitting her elbow and diagnosed
open wound left olecranon bursa and left elbow lateral epicondylitis. He stated that the etiology
of appellant’s wound was unknown. Dr. Eby examined appellant on April 16 and 22, 2008 and
stated that appellant’s elbow wounds had not closed. On April 29, 2008 he again addressed
appellant’s wound care.

2

Appellant requested a review of the written record by the Branch of Hearings and Review
on April 16, 2008. This request was postmarked May 7, 2008. By decision dated May 29, 2008,
the Branch of Hearings and Review denied her request as untimely and found that her claim
could be reviewed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.2
The Federal Employees’ Compensation Act provides that, if there is a 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.3 The
implementing regulations states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.4
ANALYSIS -- ISSUE 1
Appellant’s attending physician, Dr. Marburger, a Board-certified orthopedic surgeon,
completed reports on July 17, 2007 and indicated that appellant could perform right hand work
only. He stated that he had no further treatment to offer her, but that appellant might benefit
from pain management for chronic pain. Dr. Marburger recommended additional evaluation and
treatment. The Office referred appellant to Dr. Rickert, a Board-certified orthopedic surgeon, for
a second opinion evaluation. In a report dated September 11, 2007, Dr. Rickert found that
appellant was tender on the ulnar aspect of her forearm, all about the elbow and up toward the
back of the neck and lacked 10 degrees of elbow extension. He stated that there were no
objective findings to show that the accepted conditions of left elbow contusion or epicondylitis
were still causing symptoms. Dr. Rickert noted appellant’s continued pain and stated that he did
not believe that there was a diagnosis that would explain this pain and therefore no treatment
available. He opined that appellant could return to her date-of-injury position without
restrictions.
The Board finds that the Office has not met its burden of proof to terminate appellant’s
compensation benefits due to the unresolved conflict of medical opinion evidence between
appellant’s attending physician, Dr. Marburger, and Dr. Rickert, the Office’s second opinion
physician. The two physicians disagreed regarding the extent of appellant’s disability and her
1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

5 U.S.C. §§ 8101-8193, 8123.

4

20 C.F.R. § 10.321.

3

need for additional medical treatment. Dr. Marburger indicated that appellant should not use her
left hand to perform work duties, while Dr. Rickert found that appellant had no work restrictions.
He opined that appellant required additional treatment from a pain management specialist while
Dr. Rickert concluded that appellant’s current condition would not benefit from additional
treatment. Due to these unresolved medical issues, the Office failed to meet its burden of proof
to terminate appellant’s compensation benefits and the March 19, 2008 decision must be
reversed.5
CONCLUSION
The Board finds that the Office failed to meet its burden of proof to terminate appellant’s
compensation benefits and that the March 19, 2008 decision must be reversed.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2008 is reversed.
Issued: September 30, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

Due to the Board’s resolution of this issue, the Board will not address the timeliness of appellant’s request for a
review of the written record.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Springfield, MO, Employer
__________________________________________

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

Docket No. 10-1102
Issued: December 6, 2010

Case Submitted on the Record

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

JURISDICTION
On March 15, 2010 appellant timely appealed the December 17, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.1
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
May 23, 2009.

1

The record on appeal contains evidence received after the Office issued its December 17, 2009 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2009).

FACTUAL HISTORY
On June 2, 2009 appellant, then a 33-year-old lead transportation security officer, filed a
notice of recurrence (Form CA-2) alleging that she was injured on May 23, 2009 lifting and
moving baggage. She did not specify the type of injury sustained, but reported that her
symptoms were the same as the last several times this occurred. Appellant previously injured her
right shoulder on April 6, 2005. The Office adjudicated her claim as a new traumatic injury.
Appellant was treated on May 31, 2009 for complaints of right shoulder and neck pain,
reportedly due to moving a heavy object on May 23, 2009.2
On June 2, 2009 Dr. Jasper N. Wakeman, Jr., a Board-certified orthopedic surgeon,
diagnosed shoulder/upper arm strain. He indicated that appellant could return to work June 4,
2009 with restrictions of no reaching above the shoulders and limited use of her right arm.
Dr. Bradley H. Walz, a Board-certified orthopedic surgeon, examined appellant on
June 15, 2009. Appellant’s chief complaint was right shoulder pain and the reported date of
injury was “‘2005/May 23, 2009.’” She told Dr. Walz that she hurt her shoulder in 2005
working at the airport. At the time, appellant felt like she had a pulled muscle in her shoulder. A
magnetic resonance imaging (MRI) scan was never obtained. After three months of physical
therapy her condition reportedly did not get much better. Dr. Walz noted that appellant obtained
an MRI scan 10 days prior, which showed a small incomplete tear of the articular surface of the
distal supraspinatus tendon. The MRI scan also revealed impingement upon the supraspinatus
tendon by the acromion. Dr. Walz diagnosed partial thickness rotator cuff tear and impingement
syndrome of the right shoulder. He also noted possible cervical radiculopathy. Dr. Walz
suspected that appellant had a superior labrum anterior and posterior (SLAP) injury to her
shoulder based on noted popping and clicking. He administered a Depo-Medrol injection and
advised her to follow up in four weeks. Dr. Walz noted that, if appellant’s condition did not
improve in the interim, he would recommend an MRI scan arthrogram of the shoulder, a cervical
MRI scan and possible diagnostic arthroscopy. He released her to return to work with
restrictions of no lifting overhead, no lifting over 20 pounds, no pushing and pulling and no work
above shoulders.
On July 2, 2009 Dr. Walz reported that appellant was having more problems with her
shoulder and her neck region. He diagnosed cervical radiculopathy, which he stated may be
related to her shoulder injury. Dr. Walz recommended MRI scans of the right shoulder and
cervical spine. He advised appellant to follow up after her MRI scans. Dr. Walz renewed her
previous work restrictions, modified to restrict lifting to 10 pounds.
On August 19, 2009 Dr. Louis P. Krenn, Jr., a Board-certified family practitioner,
advised that he had seen appellant in his office that day. He requested that she be excused from
August 13 to 24, 2009 “due to a medical condition.”
An October 7, 2009 right shoulder x-ray was negative. However, a right shoulder MRI
scan arthrogram of October 7, 2009 revealed partial tearing of the rotator cuff, including the
2

The form report is largely illegible and the physician’s name is indecipherable.

2

articular surface of the supraspinatus and infraspinatus. Additionally, the right shoulder MRI
scan showed a SLAP tear of the labrum. An October 7, 2009 cervical MRI scan revealed a
grossly normal cervical spine.
Dr. Walz examined appellant on October 8, 2009 and reviewed the recent diagnostic
studies. He diagnosed a right shoulder SLAP lesion and partial thickness rotator cuff tear.
Dr. Walz discussed surgical options with appellant and she expressed a desire to proceed with a
right shoulder arthroscopy. He reported hand numbness and tingling possibly due to carpal
tunnel syndrome because it did not appear to be emanating from the cervical spine.
Appellant underwent right shoulder surgery on October 20, 2009; however, the operative
report was not made part of the record in the current claim.3 There was also a request for
authorization for postoperative physical therapy.
On November 2, 2009 Dr. Walz noted that appellant was two weeks status post shoulder
surgery. He reported that the requested physical therapy had not yet been approved. Dr. Walz
expressed concern over the delay because appellant was starting to develop arthrofibrosis of the
shoulder. He provided her with instructions on some home exercises she could perform while
awaiting authorization and advised her to return in two weeks.
The Office wrote to appellant on November 13, 2009 requesting that she provide a more
detailed account of the May 23, 2009 incident, in which she lifted and moved baggage. It also
advised her that additional medical evidence was needed because the current record did not
provide a diagnosis related to the alleged May 23, 2009 employment incident.
Appellant did not provide the requested statement regarding the May 23, 2009 incident,
but the Office did receive additional medical evidence. A November 4, 2003 physical therapy
initial evaluation and treatment plan included a diagnosis of rotator cuff tear and complete rotator
cuff rupture with a May 23, 2009 onset date. The report also noted that appellant was referred to
physical therapy following an October 20, 2009 right shoulder rotator cuff repair and biceps
tendonesis. The treatment plan called for six weeks of therapy, three times a week. Dr. Walz
signed/approved the physical therapy plan on November 19, 2009.
In a November 20, 2009 note, Dr. Walz advised that appellant was seen that day. He
found that she could return to work immediately with a restriction of no use of the upper
extremity.
By decision dated December 17, 2009, the Office denied appellant’s May 23, 2009 injury
claim. It found there was no medical evidence connecting appellant’s right shoulder condition to
the May 23, 2009 employment incident when she lifted and moved baggage.

3

Appellant obtained authorization for surgery under her prior claim file number xxxxxx612.

3

LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.5
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.6 The second component is whether the employment
incident caused a personal injury.7
ANALYSIS
Appellant claimed that she was injured on May 23, 2009 while lifting and moving
baggage. Although she received medical treatment on May 31, 2009, no specific diagnosis was
provided at that time. When Dr. Wakeman examined appellant on June 2, 2009 he diagnosed
shoulder/upper arm strain, but he did not identify either a date of injury or a cause of injury. The
bulk of the remaining medical evidence consisted of treatment records from Dr. Walz. Other
than noting a 2005/May 23, 2009 date of injury, he did not describe the employment activity or
incident on May 23, 2009 or explain how it either caused or contributed to appellant’s right
shoulder rotator cuff tear and SLAP lesion. The October 7, 2009 right shoulder MRI scan
arthrogram did not address the cause of her condition. Dr. Krenn excused appellant from
August 13 to 24, 2009 due to an unspecified “medical condition.”
The record is devoid of a rationalized medical opinion attributing appellant’s right
shoulder condition to the May 23, 2009 employment incident. Accordingly, the Office properly
denied her traumatic injury claim.

4

5 U.S.C. §§ 8101-8193 (2006).

5

20 C.F.R. § 10.115(e) (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

4

CONCLUSION
Appellant has not established that she sustained an injury in the performance of duty on
May 23, 2009.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2010
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

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