United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mableton, GA, Employer
__________________________________________

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

Docket No. 12-67
Issued: June 20, 2012

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 October 5, 2011 appellant filed an appeal from a June 20, 2011 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying his claim for bilateral foot
neuromas. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained bilateral foot neuromas causally related to his
federal employment.
On appeal, appellant contends that his physicians stated that his condition is due to a prior
employment-related injury to his back. He worked for the Federal Government for 34 years of
which 18 years were with the employing establishment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 13, 2010 appellant, then a 60-year-old senior mail processor, filed an
occupational disease claim alleging bilateral Morton’s neuromas causally related to his federal
employment. He noted that as a result of a prior low back injury that was accepted by OWCP,
he developed neuromas on both his feet. The record notes a prior claim for an injury on July 29,
2002 was accepted by OWCP on March 10, 2004 for lumbosacral disc syndrome and radiculitis.2
In a January 12, 2010 note, Dr. Craig Underset, a family practitioner, stated that appellant
had been his patient since July 2002 and treated for a workers’ compensation injury to his low
back, right hip and leg and right foot. He listed appellant’s condition as chronic. Dr. Underset
stated that on September 14, 2009 appellant experienced an exacerbation to his condition with
resulting acute right foot pain. Appellant reported no new injury and was subsequently
diagnosed with a right foot stress fracture and neuroma. Dr. Underset opined, “It is possible …
[appellant’s] chronic back/hip and right lower extremity pain syndrome with repeated overuse
could have caused instability and his subsequent right foot injury.”
In an April 1, 2010 memorandum, Dr. Evan M. Brody noted that appellant was referred
by his primary care physician who reportedly treated appellant for a 2002 employment-related
back injury. On September 21, 2009 x-rays were taken and a right foot stress fracture of the
fourth metatarsal was discovered during the initial visit. Dr. Brody stated that based on
appellant’s description of his job duties, lifestyle and onset of pain, fracture was believed to be
directly related to his duties as a mail processer. While treating appellant for the stress fracture,
subsequent magnetic resonance imaging scan revealed a neuroma in both his left and right foot.
Dr. Brody stated, “While this condition can be caused by long periods of standing, contributing
factors such as age, gait and existing back/hip injury make it difficult to directly relate [n]euroma
to [appellant’s] job duties.” He deferred to appellant’s primary care physician for further
clarification on the causal relationship between appellant’s neuroma and prior back/hip injury.
Dr. Brody noted that the stress fracture was caused by the repetitive motions and standing at his
job. He opined that appellant’s continued disability appeared to result from the untreated
neuroma rather than the fracture, which had healed.
On August 4, 2010 an OWCP medical adviser stated that there was no demonstrated
medical basis for a relationship between the acromioclavicular-lumbosacral disc syndrome and
the interdigitial neuroma/tenosynovitis of the right foot.
In a November 17, 2010 report, Dr. Underset noted that a chronic back/hip condition
could lead to foot problems; but acknowledge that his expertise on the cause/direct result of
neuroma formation was limited. He recommended a secondary orthopedic/podiatrist opinion
with a specialist who treated neuromas on a daily basis.
By decision dated December 16, 2010, OWCP denied appellant’s claim. It found that,
although he had established the employment duties occurred, he failed to provide medical
evidence establishing causal relationship.
2

OWCP File No. xxxxxx765.

2

On January 11, 2011 appellant requested an oral hearing before an OWCP hearing
representative.
At the hearing held on April 13, 2011 appellant discussed his treatment for the stress
fracture, the neuromas on his feet and that he was off work from September 2009 until
October 2010. He noted that his physicians put him on restrictions but lifted the restrictions so
that he could do his job. Appellant underwent right neuroma surgery. He stated that
Dr. Underset referred him to Dr. Brody for treatment of the neuromas.
By decision dated June 20, 2011, the hearing representative affirmed the December 16,
2010 decision denying appellant’s claim.
LEGAL PRECEDENT
An employee seeking compensation under FECA3 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,4
including that he is an “employee” within the meaning of FECA5 and that he filed his claim
within the applicable time limitation.6 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.7 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.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
Causal relationship is a medical issue10 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

7

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

8

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

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

10

Mary J. Briggs, 37 ECAB 578 (1986).

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there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,11 must be one of reasonable medical certainty12
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.13
ANALYSIS
OWCP denied appellant’s claim finding that he did not provide sufficient rationalized
medical evidence to establish that his bilateral neuromas were causally related to his federal
employment as a mail processor. Dr. Underset noted generally that a chronic back/hip condition
could lead to foot problems. He stated that it was possible that appellant’s chronic back/hip and
right lower extremity pain syndrome with repeated overuse could have caused instability and
resulted in a right foot injury, but acknowledged that his expertise on neuroma formation was
limited. Dr. Brody, a podiatrist, similarly postulated that appellant’s stress fracture was caused
by his employment; but noted that his current disability was caused by his neuromas rather than a
fracture, which had healed. While neuromas could be caused by long periods of standing,
contributing factors such as age, gait and an existing back/hip injury made it difficult to directly
relate appellant’s neuroma to his job duties. These physicians did not provide rationalized
medical opinion explaining how appellant’s bilateral neuromas were related to his employment.
An award of compensation may not be based on surmise, conjecture or speculation. Neither the
fact that appellant’s claimed condition became apparent during a period of employment nor his
belief that his condition was caused by his employment or that it was an aggravation of a prior
employment injury is sufficient to establish causal relationship.14 As appellant has not provided
medical evidence sufficient to establish a causal relationship between his neuromas and his
federal employment, OWCP properly denied his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he sustained bilateral foot neuromas
causally related to his federal employment.

11

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

12

See Morris Scanlon, 11 ECAB 384, 385 (1960).

13

See William E. Enright, 31 ECAB 426, 430 (1980).

14

M.P., Docket No. 11-1194 (issued February 23, 2012); Walter D. Morehead, 31 ECAB 188 (1986).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2011 is affirmed.
Issued: June 20, 2012
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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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, RANSON POST
OFFICE, Ranson, WV, Employer
__________________________________________

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

Docket No. 21-1155
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 21, 2021 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 8, 2018 appellant then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 30, 2018 she sustained a strained left hip/buttock when she
was startled by a snake and fell backwards when delivering mail while in the performance of duty.
She stopped work on the filing date of her claim. On June 8, 2018 OWCP initially accepted the
claim for strain of the muscle, fascia, and tendon of the left hip, and unspecified strain of the left
hip. It later expanded acceptance of the claim to include trochanteric tendinitis/bursitis of the left
hip and strain of the gluteus medius. OWCP paid appellant wage-loss compensation on the
supplemental rolls as of June 23, 2018 and on the periodic rolls commencing January 6, 2019. It
again paid her intermittent wage-loss compensation on the supplemental rolls as of September 15,
2019, following her return to part-time limited-duty work on September 23, 2019.
Appellant filed several claims for compensation (Form CA-7) for disability from work for
the period February 27 through April 9, 2021. On March 29, and April 2 and 13, 2021 she filed
an accompanying time analysis form (Form CA-7a) wherein she claimed that she used leave
without pay (LWOP) as follows: eight hours each on February 27, March 13, 16, 20, 23, and 30,
and April 2, and 3, 2021 due to her days off work; two hours on March 1, 2021; 1.34 hours on
March 3, 2021; 4.20 hours on March 4, 2021; eight hours each on March 5 and 6, 2021 to receive
an injection in her physician’s office; 3.48 hours on March 8, 2021; 2.35 hours on March 9, 2021;
eight hours on March 11, 2021 due to being placed off work by her physician; eight hours each on
March 12, 15, 19, 22, 29 and April 8 and 9, 2021 due to hip pain; 1.46 hours on March 24, 2021;
3.08 hours on March 25, 2021; 2.02 hours on March 31, 2021; 2.85 hours on April, 1, 2021; 2.59
hours on April 6, 2021; and 4.45 hours on April 7, 2021.
In support of her claim, appellant submitted medical reports dated March 4 and 24, 2021
from Juris Eyler, a physician assistant. Mr. Eyler diagnosed pain, unilateral primary osteoarthritis,
other articular cartilage disorders of the left hip; sacroiliitis, not elsewhere classified; difﬁculty in
walking, not elsewhere classiﬁed, and trochanteric bursitis of the left hip. He advised that appellant
could continue to perform sedentary work with restrictions and indicated that her absences from
work for a partial day on March 4, 2021 and a full day on March 5, 2021 should be excused due
to a hip injection she received on March 4, 2021. On March 24, 2021 Mr. Eyler restricted her to
work four-to-six hours per day, three- to four-hour days per week, due to flare-ups of pain and
other symptoms effective March 3, 2021.
OWCP, in a development letter dated March 29, 2021, informed appellant that the evidence
submitted was insufficient to establish her claim for wage-loss compensation. It advised her of
the type of medical evidence necessary to establish her disability claim and afforded her 30 days
to submit the requested evidence.

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In a separate letter dated March 29, 2021, OWCP requested that the employing
establishment indicate whether work was available for appellant on February 27 and March 5, 6,
11, and 12, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the period February 13 through 26 and March 8 and 9, 2021.
OWCP received an April 3, 2020 left hip arthrogram report by Dr. Taik-Kun Kim, a Boardcertified diagnostic radiologist. Dr. Kim noted that the arthrogram was performed prior to a
magnetic resonance imaging (MRI) scan. He provided an impression that the arthrogram was
successful and uncomplicated.
On April 6, 2021 the employing establishment responded to OWCP’s March 29, 2021
letter, noting that no work was available on February 27, 2021 and eight hours of work was
available on March 5, 6, 11, and 12, 2021.
In an April 16, 2021 letter, OWCP requested that the employing establishment provide
whether limited-duty work was available for appellant on intermittent dates during the period
March 13 through April 9, 2021.
In an initial response dated April 22, 2021, the employing establishment indicated that up
to six hours of limited-duty work per day was available on March 13, 15, 16, 19, 20, 22, 23, 29,
30, 31 and April 2, 3, 8, and 9, 2021. It indicated that medical evidence dated March 24, 2020
provided that appellant could work four-to-six hours per day, three-to-four days per week as
tolerated.
On April 28, 2021 the employing establishment further responded that appellant had days
off from work and was off work based on her physician’s order during the period March 13 through
April 9, 2021. It noted that her days off from work were March 13, 16, 20, 23, and 30 and
April 2, 2021. The employing establishment also noted that appellant was off from work on
March 15, 19, 22, and 29 and April 6 and 9, 2021 based on her physician’s order. Appellant
worked 5.98 hours on March 31, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the periods March 13 through 26, 2021 and March 31 through
April 7, 2021.
OWCP continued to receive medical evidence. In an April 3, 2021 left hip MRI arthrogram
report, Dr. John M. Filigenzi, a Board-certified diagnostic radiologist, provided an impression of
mild left hip chondromalacia. Dr. Filigenzi related that appellant had a complex tear of the
acetabular labrum extending from the anterior-superior labrum through the posterior-superior
labrum, more severe anteriorly as detailed in his report. He also provided impressions of mild
degenerative changes of the sacroiliac joints and pubic symphysis, based on review of an April 1,
2020 pelvis MRI scan.
Dr. S. Shar Hashemi, a Board-certified surgeon, noted in reports dated May 10 and 14,
2021 that appellant’s history of a 2018 employment-related left hip injury. He discussed:
examination findings and diagnosed injury of cutaneous sensory nerve at hip and thigh level, left
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leg, initial encounter; injury of other nerves at hip and thigh level, left leg, initial encounter; and
causalgia of the left lower limb. Dr. Hashemi placed appellant off work for one month
commencing April 29 and May 14, 2021, respectively.
A May 6, 2021 report by Dr. Raj Parekh, an anesthesiologist, noted appellant’s history of
injury, discussed examination findings, and provided impressions of high risk medication
monitoring narcotics, left hip chronic pain syndrome, unspecified and uncomplicated opioid use,
generalized anxiety disorder, and left hip labral tear. Dr. Parekh related that there was no doubt
that appellant’s left hip pain was causing significant disability and pain. He noted that she reported
that prior to her accepted employment injury, she was quite active, but now she was limited by her
pain and could not adequately perform her work duties.
In a May 21, 2021 decision, OWCP authorized payment of wage-loss compensation for
eight hours on February 27, 2021 and two hours each on March 13, 15, 16, 19, 20, 22, 23, 29, 30,
and 31 and April 2, 3, 8, and 9, 2021. It also noted that appellant had previously received
intermittent wage-loss compensation for March 1, 3, 4, 8, 9, 17, 24, 25, 31, and April 1, 6, and
9, 2021. The claim remained denied, however, as appellant had not provided medical evidence
establishing that she was disabled from work as a result of her accepted work -related medical
conditions for the remainder of the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

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medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury. Appellant filed a series of CA-7 forms
for intermittent disability from work commencing February 27, 2021. The record reflects that
OWCP has paid intermittent wage-loss compensation commencing February 27, 2021 for the dates
on which eight hours of work was not made available by the employing establishment and for the
dates on which appellant received authorized medical treatment.
OWCP received reports from medical providers regarding appellant’s disability status
during the relevant period. Several reports were submitted by Mr. Eyler, a physician assistant. In
a report dated March 4, 2021, Mr. Eyler advised that appellant’s absences from work for a partial
day on March 4, 2021 and a full day on March 5, 2021 should be excused due to a hip injection
she received on March 4, 2021. OWCP paid appellant wage-loss compensation for the time she
lost from work to receive the hip injection on March 4, 2021; however, it denied her claim for
wage-loss compensation commencing March 5, 2021 as Mr. Eyler’s opinion regarding appellant’s
disability status was of no probative value. 13 On March 24, 2021 Mr. Eyler restricted her to work
four to six hours per day, three to four hour days per week, due to flare -ups of pain and other
symptoms effective March 3, 2021. The Board has held that the reports of a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and, therefore, is not competent to provide a medical opinion. The reports from Mr. Eyler

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020).
13

D.B., Docket No. 20-0192 (issued November 2, 2020); S.K., Docket No. 19-0272 (issued July 21, 2020).

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are, therefore, insufficient to establish appellant’s claim, except to establish that appellant received
treatment on the dates he provided authorized medical treatment.14
OWCP also received reports from Dr. Hashemi. In a report dated May 10, 2021,
Dr. Hashemi placed appellant off work for one month commencing April 29, 2021. He noted her
history of injury and diagnosed injury of cutaneous sensory nerve at the hip and thigh level of left
leg and causalgia of the left lower limb. However, Dr. Hashemi did not explain, with rationale,
how or why appellant was unable to perform her regular work on the claimed dates of disability
due to the effects of her accepted conditions. His other May 14, 2021 report also did not address
the relevant period of claimed disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/period of disability has an employment-related cause.15 For these reasons, the
Board finds that Dr. Hashemi’s reports are insufficient to establish appellant’s disability claim.
Appellant also submitted a May 6, 2021 report from Dr. Parekh. Dr. Parekh noted a history
of the April 30, 2018 employment injury. He diagnosed, inter alia, left hip chronic pain syndrome
and left hip labral tear. Dr. Parekh opined that appellant’s hip pain caused her disability from
work. However, he did not offer an opinion as to whether her disability on the claimed dates were
causally related to the accepted condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship. 16 Therefore, this evidence is insufficient to establish
appellant’s disability claim.
Likewise, Dr. Kim’s April 3, 2020 procedure note is insufficient to establish appellant’s
disability claim. In his April 3, 2020 note, he advised that a left hip arthrogram was successful
and uncomplicated. However, Dr. Kim did not provide an opinion addressing whether appellant
had disability on the claimed dates causally related to an accepted condition and, as such, his note
is of no probative value.17
Appellant submitted left hip MRI arthrogram reports from Dr. Kim and Dr. Filigenzi. The
Board has held, however, that diagnostic studies, standing alone, lack probative value on the issue

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
15

See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);
T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
16

See T.S., id.; J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Id.

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of causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates. 18
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 19 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the claimed period due to her accepted
conditions, the Board finds that she has not met her burden of proof to establish h er claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See T.S., id.; D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued
October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020).
19

Supra note 6.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 16-0265
Issued: May 16, 2016

Case Submitted on the Record

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

JURISDICTION
On November 23, 2015 appellant filed a timely appeal from June 29 and October 28,
2015 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a traumatic injury
causally related to the accepted May 1, 2015 employment incident.
FACTUAL HISTORY
On May 15, 2015 appellant, then a 38-year-old benefit authorizer, filed a traumatic injury
claim (Form CA-1) alleging that on May 1, 2015 she experienced pain and swelling to her head,
eye, and nose when the trunk lid of her car fell on her, in the employing establishment parking
1

5 U.S.C. § 8101 et seq.

lot. She noted that her face was still painful to touch and she experienced headaches and
dizziness. Appellant stopped work on May 8, 2015 and returned on May 12, 2015. On the back
of the claim form, the employing establishment indicated that she was not injured in the
performance of duty because the alleged incident occurred during a lunch break.
Appellant submitted a handwritten May 1, 2015 medical record by an unknown provider
which indicated that she complained of pain as a result of her car trunk hitting her nose and eye.
On May 7, 2015 appellant was examined in the emergency room by Dr. Richard Nguyen,
Board-certified in emergency medicine, and Carrie L. Parrott, a certified nurse practitioner, who
described in a May 7, 2015 report that appellant was six days post injury to her head that
occurred when she closed the trunk of her car and it struck her nose and right anterior cheek.
Dr. Nguyen reviewed appellant’s history and conducted an examination. He related that her
computerized tomography (CT) scan of her head showed no acute finding. Dr. Nguyen provided
a diagnosis of concussion and recommended that appellant follow-up with her primary care
physician if her condition did not improve in three to four days. He advised that she could return
to work on May 12, 2015.
In a May 7, 2015 head CT scan examination report, Dr. Angela Yim, a Board-certified
diagnostic radiologist, related appellant’s complaints of headache. She observed that there was
no evidence for midline shift, mass effect, or intracranial hemorrhage. Dr. Yim reported that the
examination was unremarkable.
Appellant was also treated by Marilyn B. Andrews, a certified nurse practitioner, who
noted in May 4 to June 9, 2015 reports that appellant complained of pain, headaches, and
dizziness. Ms. Andrews related that appellant was examined in the emergency room on May 7,
2015 and diagnosed with a concussion. She reviewed appellant’s history and recounted that
appellant was hit in the head when the trunk lid of her car fell on her. Upon examination,
Ms. Andrews observed that appellant appeared uncomfortable and lay down on the examination
table throughout most of the examination. She examined appellant’s back and observed
tenderness in the upper cervical back with increased muscle tension. Ms. Andrews reported that
appellant’s eyes were conjunctivae and normal and her ear canals and membranes were intact.
Examination of appellant’s nose and mouth were normal. Ms. Andrews diagnosed chronic
post-traumatic headache, cervicalgia, and unspecified vertigo. She prescribed pain medication
and advised that appellant should remain off work until reevaluated.
Ms. Andrews also provided disability notes dated May 14 and 21, 2015, which indicated
that appellant had an appointment on those dates and would be unable to return to work until
June 8, 2015.
By letter dated May 28, 2015, OWCP advised appellant that the evidence of record was
insufficient to establish her claim. It requested that she submit detailed factual evidence to
demonstrate that the May 1, 2015 incident occurred as alleged, in the performance of duty, and
medical evidence to demonstrate that she sustained a diagnosed condition causally related to the
accepted incident. OWCP also requested that appellant complete a questionnaire regarding the
circumstances surrounding the injury, and whether it occurred in the performance of duty. It
afforded her 30 days to submit the requested information.

2

In a June 25, 2015 statement, Ava Corner, appellant’s supervisor, reported that
management was contacted by a nurse at the employing establishment about appellant’s injury.
She stated that appellant’s injury was visible on her face, nose, and eyes and that appellant
showed signs of dizziness, slurring of words, and weakness. Ms. Corner noted that management
was concerned about appellant’s health and completed a Form CA-1.
In a June 25, 2015 statement, Loreda Steppe, a benefit authorizer and appellant’s
coworker, recounted that on May 1, 2015 appellant asked her where the nurse’s office was
located. She noted that appellant looked disoriented and dazed. When Ms. Steppe asked if
appellant was okay, appellant stated that the trunk of her car hit her face.
In an undated statement, Brandon Cheung, a human resource specialist, indicated that
appellant completed the appropriate workers’ compensation paperwork, but there was a delay in
filing because of confusion with the online filing process. He claimed that she properly informed
her manager of the injury and timely submitted the necessary documents.
On June 25, 2015 appellant responded to OWCP’s development letter. She provided a
history that she went to her personal car, which was parked in the front parking lot of the
employing establishment, to retrieve a toiletry item from the trunk of her car during an approved
lunch break. The trunk of the car fell down on appellant’s head and hit her nose and portion of
her face right under her right eye. Appellant immediately felt burning, throbbing, and pain in her
head and experienced dizziness and a throbbing headache. She returned to the building, asked
her coworker where the nurse’s suite was, and was evaluated in the nurse’s suite for 45 minutes
to 1 hour. Appellant’s supervisor was informed of the incident and walked appellant back to her
desk to complete the proper workers’ compensation paperwork. Appellant reported that after a
few days she went to the emergency room because she continued to experience constant severe
headaches, dizziness, and was unable to function normally throughout her day. She was
diagnosed with a closed head injury concussion and advised not to return to work. Appellant
continued to experience pain, dizziness, and headaches. She received medical treatment from
Ms. Andrews and was advised not to return to work.
By decision dated June 29, 2015, OWCP denied appellant’s claim. It found that the
factual evidence was insufficient to establish that the May 1, 2015 incident occurred as alleged
and in the performance of duty, and that the medical evidence failed to demonstrate that she
sustained a diagnosed condition causally related to the alleged incident.
On July 30, 2015 OWCP received appellant’s request for reconsideration. Appellant
stated that the documents she submitted to Mr. Cheung were late in being uploaded to the system
and were not considered prior to the June 29, 2015 OWCP decision. She resubmitted statements
from Mr. Cheung and Ms. Steppe, her June 25, 2015 statement, the handwritten May 1, 2015
medical note, Dr. Nguyen’s May 7, 2015 report, and Ms. Andrews’ May 4 and 21, and June 9,
2015 reports.
Appellant also submitted June 6, 2015 emergency room records by an unknown provider,
which indicated that she was complaining of headaches after being accidently struck on her face
by the trunk of her car.

3

By decision dated October 28, 2015, OWCP affirmed the June 29, 2015 denial decision
with modification. It accepted that the May 15, 2015 incident occurred as alleged, and in the
performance of duty, but denied appellant’s claim as the medical evidence of record was
insufficient to establish that she sustained a diagnosed condition causally related to the accepted
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 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.4
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.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.7 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability or condition relates to the
employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 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.10 The weight of the medical evidence is determined by its reliability, its probative

2

Id.

3

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

4

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

5

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

6

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

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

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

4

value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.11
ANALYSIS
Appellant alleged that on May 1, 2015 she sustained injuries to her head, eye, and nose
when the trunk lid of her car fell on her. She stopped work on May 8, 2015 and returned on
May 12, 2015. OWCP accepted that the May 1, 2015 incident occurred as alleged, and in the
performance of duty, but denied appellant’s claim finding that the medical evidence of record
was insufficient to establish that she sustained a diagnosed condition causally related to the
accepted incident.
The Board finds that appellant has not established a diagnosed condition causally related
to the accepted incident. While appellant alleged injury to her head, eye, and nose, the Board
notes that no diagnosis was offered regarding her alleged eye and nose conditions.
Appellant was examined in the emergency room by a nurse practitioner, and Dr. Nguyen
who noted in a May 7, 2015 report that she was struck in the head by the trunk lid of her car.
Dr. Nguyen reviewed her history and conducted an examination. He related that a CT scan
demonstrated no acute findings. Dr. Nguyen diagnosed a concussion. Although he described the
May 1, 2015 employment incident and provided a medical diagnosis, he did not offer an opinion
as to whether the May 1, 2015 incident caused or contributed to appellant’s concussion. The
Board has held that a physician must provide a narrative description of the identified
employment incident and a reasoned opinion on whether the employment incident described
caused or contributed to appellant’s diagnosed medical condition.12
Similarly, Dr. Yim’s May 7, 2015 diagnostic report also fails to establish causal
relationship as she did not provide any opinion on the cause of her condition. As these reports
do not contain any rationalized medical opinion explaining how the May 1, 2015 employment
incident resulted in appellant’s head condition, they are insufficient to establish her traumatic
injury claim.
Appellant was also examined by Ms. Andrews, a nurse practitioner, from May 4 to
June 9, 2015. Ms. Andrews accurately described the May 1, 2015 work incident and diagnosed
concussion. These reports, however, are of no probative value because nurse practitioners are
not considered physicians as defined under FECA.13 Ms. Andrews’ opinion, therefore, also fails
to establish a causal relationship. The additional May 1 and June 6, 2015 records by an unknown
provider similarly do not establish appellant’s traumatic injury claim because medical evidence

11

James Mack, 43 ECAB 321 (1991).

12

John W. Montoya, 54 ECAB 306 (2003).

13

Section 8102(2) provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

5

lacking proper identification is of no probative medical value.14 As these reports are of no
probative value, they are insufficient to establish her traumatic injury claim.
The issue of causal relationship is a medical question that must be established by
probative medical opinion from a physician.15 Appellant did not provide a rationalized medical
opinion based on an accurate background which described or explained the medical process
through which the May 1, 2015 incident could have caused her alleged injuries. Accordingly,
she did not meet her burden of proof to establish that she sustained an injury causally related to
the accepted employment incident of May 1, 2015.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury
causally related to the accepted May 1, 2015 employment incident.

14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

15

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the October 28 and June 29, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 16, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Raleigh, NC,
Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1852
Issued: January 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 3, 2008. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 The Board remanded the case to the
Office for a proper decision regarding appellant’s application for reconsideration. Appellant’s
untimely application for reconsideration had included a July 26, 2006 Equal Employment
1

Docket No. 07-2239 (issued February 5, 2008).

Opportunity (EEO) Commission decision finding that the employing establishment had
discriminated against her. The administrative judge found the employing establishment had
discriminated on the basis of disability by denying appellant’s request to continue a Tour 2
schedule (7:00 a.m. to 3:30 p.m.) as of November 1, 2004.2 The Board noted that the Office had
not discussed the evidence submitted on reconsideration. The history of the case as provided in
the Board’s prior decision is incorporated herein by reference.
By decision dated April 3, 2008, the Office reviewed the case on its merits and
determined that the EEO Commission decision did establish a compensable work factor. It
found, however, that the medical evidence did not establish a diagnosed condition causally
related to the work factor and therefore the claim was denied.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.3 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.4 If a compensable work
factor is established, a claimant must submit medical evidence establishing causal relationship
between the compensable work factor and a diagnosed medical condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.6
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence
2

The administrative judge found appellant was a “qualified individual with a disability” as she had submitted
medical evidence regarding bipolar II disorder, post-traumatic stress disorder (PTSD) and depression.
3

Pamela R. Rice, 38 ECAB 838 (1987).

4

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

5

Beverly R. Jones, 55 ECAB 411, 419 (2004).

6

Lillian Cutler, 28 ECAB 125 (1976).

7

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

2

demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.8
ANALYSIS
The Office found appellant did establish clear evidence of error and reviewed the case on
its merits. The July 26, 2006 EEO Commission decision is probative evidence of discrimination
and the Office accepted a compensable work factor in this regard. With respect to additional
compensable work factors, the Board notes that in her claim form appellant had referred to
disciplinary actions by the employing establishment, including a June 7, 2004 notice of removal
and an August 5, 2004 letter of warning. These disciplinary actions are actions taken in an
administrative capacity and do not constitute a compensable work factor unless there is evidence
that the employing establishment erred or acted abusively.9 The June 7, 2004 notice of removal
was issued for unauthorized removal of documents, and the August 5, 2004 letter of warning was
issued for unsatisfactory attendance. There is no probative evidence of record that the
employing establishment acted unreasonably in these disciplinary matters. The Board notes that
the July 26, 2006 EEO Commission decision did not address specific disciplinary actions by the
employing establishment.
The Board accordingly finds that the only compensable work factor established in this
case is the employing establishment’s failure to accommodate appellant’s request to maintain her
work schedule as of November 1, 2004. Although she has established a compensable work
factor, to establish her claim for compensation appellant must submit rationalized medical
evidence on causal relationship between a diagnosed condition and the compensable work factor.
Rationalized medical opinion evidence is an opinion based on a complete factual and medical
background, supported by medical rationale explaining the nature of the relationship between a
diagnosed condition and the compensable work factor.10
In this case the record does not contain a rationalized medical opinion on the issue
presented. In a duty status report (Form CA-17) dated October 29, 2004, Dr. Morton Meltzer, a
psychiatrist, indicated that appellant should remain in a full-time Tour 2 assignment. In a report
dated April 8, 2005, he indicated that appellant had been receiving psychotherapy and
medication since March 1998 for her chronic illness. Dr. Meltzer stated that the limitations of
appellant’s illness should be accommodated to provide her an opportunity to be a full-time and
productive employee. The report does not contain a complete history, a diagnosis, or a
rationalized opinion on causal relationship between appellant’s condition and the compensable
work factor. In the absence of probative medical evidence, the Board finds appellant did not
meet her burden of proof to establish her claim.

8

Margreate Lublin, 44 ECAB 945, 956 (1993).

9

See Charles D. Edwards, 55 ECAB 258, 266 (2004). In determining whether the employing establishment has
erred or acted abusively, the evidence is examined to determine if the employing establishment acted reasonably.
10

Beverly R. Jones, supra note 5.

3

CONCLUSION
Appellant did not submit medical evidence establishing causally relationship between a
diagnosed emotional condition and the compensable work factor.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2008 is affirmed.
Issued: January 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jenison, MI, Employer
__________________________________________

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

Docket No. 19-1700
Issued: April 30, 2020

Case Submitted on the Record

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

JURISDICTION
On August 8, 2019 appellant filed a timely appeal from a June 6, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated April 12, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 30, 2013 appellant, then a 53-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 25, 2013 he injured his right thigh and upper leg
when he missed a step and jammed his leg while in the performance of duty. He stopped work on
September 28, 2013.
By decision dated December 4, 2013, OWCP denied appellant’s claim. It found that he
had established that the incident occurred as alleged, however, the medical evidence of record did
not contain a medical diagnosis in connection with the incident. OWCP concluded that the
requirements had not been met to establish an injury as defined by FECA.
On December 19, 2013 appellant requested reconsideration and submitted additional
evidence.
By decision dated February 20, 2014, OWCP modified of its December 4, 2013 decision
finding that the medical evidence provided a diagnosis of a medical condition. However, the claim
remained denied as the medical evidence of record was insufficient to establish that the diagnosed
condition was causally related to the accepted employment incident.
On March 20, 2014 appellant requested reconsideration and submitted additional evidence.
In a March 10, 2014 report, Dr. Brian P. Giersch, a Board-certified physiatrist, noted
appellant’s history of injury. He related that appellant was descending a short series of stairs while
working, he missed one of the steps, lost his balance, and experienced a jolt to his right leg and
back as he caught himself from falling. Dr. Giersch provided appellant’s physical examination
findings and diagnosed “status post near fall with resultant right paralumbar, gluteal, and right
lower extremity discomfort/sensory disturbance.”
By decision dated June 2, 2014, OWCP denied modification of the February 20, 2014
decision. It found that the medical evidence of record was insufficient to establish that appellant’s
diagnosed condition was causally related to the accepted employment incident.
On June 9, 2014 appellant requested reconsideration.
Dr. Giersch continued to treat appellant and submit progress reports.

2

Docket No. 15-1248 (issued June 14, 2016).

2

In a June 6, 2014 report, Dr. Giersch provided an opinion on causal relationship, relating
that:
“Review of my notes would in fact, suggest that my differential diagnosis includes
a lateral femoral cutaneous neuropathy and perhaps referred phenomenon from the
back or hip. My ongoing diagnosis at this point is that of lateral femoral cutaneous
neuropathy. Again, this would be the most likely etiology for his symptoms, which
remains fairly well confined to the lateral thigh region at this time. This is related,
by history provided by [appellant], to his near fall injury, which originally brought
him to my medical attention.”
By decision dated August 25, 2014, OWCP denied modification of the prior decision. It
found that, while Dr. Giersch attempted to satisfy the issue of causal relationship by opining that
the condition was related “to the near fall injury,” he failed to explain how he arrived at this
conclusion.
On December 11, 2014 counsel requested reconsideration.
In a November 20, 2014 report, Dr. Giersch indicating that appellant had a “misstep while
working on September 25, 2013.” He advised that a magnetic resonance imaging scan of the
lumbosacral spine revealed moderate congenital stenosis, superimposed degenerative changes,
facet arthrosis, disc bulging, epidural lipomatosis, and possible ankylosing spondylit is.
Dr. Giersch further advised that electromyography (EMG) scan studies were mildly abnormal with
mild irritability in the paraspinal muscles. He diagnosed lateral femoral cutaneous neuropathy.
Dr. Giersch opined that, “In my medical opinion, the facts of injury are the direct and proximate
cause of the diagnosis that I cited above. This is based on reasonable medical probability. There
may be other causes for this medical problem, but one of the causes is clearly the activities of work
described [by] the patient and described above.”
By decision dated March 5, 2015, OWCP denied modification of its prior decision.
On May 13, 2015 appellant, through counsel, timely appealed to the Board.
By decision dated June 14, 2016, the Board affirmed the March 5, 2015 OWCP decision,
finding that the medical evidence of record was insufficient to establish causal relationship
between appellant’s medical condition and the accepted September 25, 2013 employment
incident.3
On December 19, 2016 appellant, through counsel, requested reconsideration and
submitted new medical evidence.
In a December 1, 2016 report, Dr. Giersch indicated that he would like to clarify his prior
reports. He indicated that, “It is my opinion that [appellant] did in fact sustain a work-related
injury while at work back in 2014 when [appellant] had a misstep while walking down a short
series of stairs. This resulted in a sudden onset of symptoms not only in the right thigh, but also
3

Id.

3

the buttock, and low back area. I am unable to provide further details or specifics about precise
mechanisms of injury. This would require significant speculation on my part.” Dr. Giersch
explained that appellant had ongoing symptomatology. He further opined that “[p]rior to the onset
of these symptoms, [appellant] was not experiencing any of these symptoms, and I have no reason
to question the veracity of his statements up until this day.”
By decision dated March 7, 2017, OWCP denied appellant’s request for reconsideration of
the merits of his claim. It found that Dr. Giersch’s December 1, 2016 report was speculative and
repetitive of his previous reports.
On June 13, 2017 appellant, through counsel, again requested reconsideration and
submitted a copy of a June 6, 2014 report from Dr. Giersch, which was previously of record and
reviewed by OWCP.
By decision dated September 8, 2017, OWCP denied modification, finding that the medical
evidence of record was insufficiently rationalized to establish causal relationship.
On January 22, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a January 3, 2018 report, Dr. Giersch noted that he had previously provided an incorrect
date of injury in his December 1, 2016 report. He explained that he reviewed his notes from the
initial consultation on March 10, 2014 and that the “injury did in fact as indicated by the patient
on our evaluation form occurred on September 24, 2013.”
By decision dated April 12, 2018, OWCP denied modification of the September 8, 2017
decision.
On August 13, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a May 18, 2018 report, Dr. Min Zhu, a Board-certified neurologist, indicated that she
had performed nerve conduction velocity and EMG testing, which was within normal limits.
By decision dated November 9, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim. It found that the report of Dr. Zhu had no bearing on
the issue and therefore was irrelevant and immaterial.
On April 11, 2019 appellant again requested reconsideration and submitted additional
medical evidence.
In an April 3, 2019 report, Dr. Giersch repeated appellant’s history of injury. He related
that appellant was felt to have probable right femoral cutaneous neuropathy as well as back pain,
with intermittent sensory symptoms in his foot of unclear significance. Dr. Giersch opined that it
was his opinion “within a reasonable degree of medical probability, that these ongoing symptoms
are a direct result of the injuries sustained while working on September 25, 2013 when [appellant]
sustained a near fall and misstep. He explained: “Specifically, [appellant] perhaps sustained some
type of stretch injury to the right lateral femoral cutaneous nerve, as well as some jarring of the

4

low back which likely aggravated some underlying degenerative changes which has resulted in
some back discomfort.” Dr. Giersch further explained that appellant was not experiencing any of
these symptoms prior to this work-related injury from September 25, 2013.
By decision dated June 6, 2019, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right. OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority. 4
One such limitation is that the request for reconsideration must be received by OWCP
within one year of the date of the decision for which review is sought. 5 A timely application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that OWCP erroneously applied or interpreted a specific point of
law; (2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP. 6 When a timely
application for reconsideration does not meet at least one of the above-noted requirements, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits. 7
In support of a request for reconsideration, a claimant is not required to submit all evidence which
may be necessary to discharge his or her burden of proof. 8 He or she needs only to submit relevant,
pertinent evidence not previously considered by OWCP. 9 When reviewing an OWCP decision
denying a merit review, the function of the Board is to determine whether OWCP properly applied
the standards set forth at section 10.606(b)(3) to the claimant’s application for reconsideration and
any evidence submitted in support thereof. 10

4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

See S.F., Docket No. 18-0516 (issued February 21, 2020); P.L., Docket No. 18-1145 (issued January 4, 2019);
Helen E. Tschantz, 39 ECAB 1382 (1988).
9

S.S., Docket No. 18-0647 (issued October 15, 2018).

10

P.L., supra note 8; Annette Louise, 54 ECAB 783 (2003).

5

ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Thus, he is not entitled to a review of the merits based on the first and
second requirements under 20 C.F.R. §10.606(b)(3).
However, with respect to the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3), appellant submitted pertinent new and relevant medical evidence in support of his
request for reconsideration in the form of an April 3, 2019 report from Dr. Giersch. In addition to
his consistent conclusions that appellant’s ongoing symptoms were causally related to the accepted
September 25, 2013 employment incident, he added the following explanation: “Specifically, he
perhaps sustained some type of stretch injury to the right lateral femoral cutaneous nerve, as well
as some jarring of the low back which likely aggravated some underlying degenerative changes
which has resulted in some back discomfort.”
The Board has held that, in support of a request for reconsideration, a claimant is not
required to submit all evidence which may be necessary to discharge his or her burden of proof.
He or she need only submit relevant and pertinent evidence not previously considered by OWCP. 11
The Board finds that Dr. Giersch’s April 3, 2019 report constitutes pertinent new and relevant
evidence, which directly addresses the issue of causal relationship. 12 Appellant’s request for
reconsideration therefore met the third standard for obtaining merit review of his case under 20
C.F.R. § 10.606(b)(3). Accordingly, he is entitled to a merit review.
The Board will set aside OWCP’s June 6, 2019 decision denying appellant’s request for
reconsideration and will remand the case for a merit review. After any necessary further
development, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim.

11

See Helen E. Tschantz, 39 ECAB 1382 (1988); see also C.L., Docket No. 19-1440 (issued March 19, 2020) n.14;
S.H., Docket No. 17-1101 (issued August 3, 2017).
12

See H.D., Docket No. 18-0865 (issued February 10, 2020); S.H., id.

6

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 30, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
San Antonio, TX, Employer
__________________________________________

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Appearances:
Mary Lou Kelley, for the appellant
Office of Solicitor, for the Director

Docket No. 10-39
Issued: September 2, 2010

Case Submitted on the Record

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

JURISDICTION
On October 5, 2009 appellant filed a timely appeal from the August 26, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a traumatic injury to his back while in the
performance of duty on January 11, 2008.
FACTUAL HISTORY
On August 26, 2008 appellant, a 52-year-old procurement technician, filed a traumatic
injury claim alleging that he became aware of extreme lower back pain on January 11, 2008
when his supervisor advised him that he was no longer going to satisfy his reasonable
accommodation request.

In a statement dated January 18, 2008, appellant noted that he had sustained an
employment-related back injury on November 12, 1985, which was accepted by the Office.1
Following a nonwork-related back surgery in May 1997, the employing establishment granted
him reasonable accommodations, which included hourly 15-minute breaks. On January 11, 2008
appellant’s supervisor informed appellant that his breaks would be limited to one 15-minute
break in the morning and one 15-minute break in the afternoon. On the date in question
appellant attempted to work all morning with only one 15-minute break; but “it proved to be too
stressful for [his] back,” and he “started having throbbing pain in his lower back.” He stated that
there was no doubt in his mind that the terrible pain and injury to his back was due to the
elimination of his hourly breaks.
On August 29, 2008 the employing establishment controverted the claim. The
establishment contended that appellant had failed to establish the fact of injury; that he had not
been injured in the performance of duty; and that he had not established a causal relationship
between a diagnosed condition and the alleged incident.
Appellant submitted a January 14, 2008 report from Mireya C.P. Vanderslice, a nurse
practitioner. Examination revealed normal curvature of the spine; no vertical spine tenderness;
normal motor systems; normal sensory examination; and negative straight leg raise.
Ms. Vanderslice diagnosed cervicalgia, as well as neck, back and joint pain.
Appellant was treated by Dr. Holly Kaufman, a Board-certified family practitioner. On
June 19, 2008 Dr. Kaufman restricted him from heavy lifting and excessive bending and
twisting. She recommended that appellant be provided a workstation that allowed him to adjust
positions for back comfort and that he be permitted to take breaks to stand and walk to relieve
pain. In a July 8, 2008 follow-up report, Dr. Kaufman stated that he managed his condition well
when he was able to take 15-minute breaks every hour.
On July 28, 2008 Dr. Kaufman reported that appellant suffered from lower back pain and
had previously undergone an L4/5 discectomy and disc spacer placement, in addition to an L5
laminectomy. Recent x-rays showed multilevel endplate degenerative changes,2 which were the
“likely source of his symptoms.” Dr. Kaufman indicated that, for the past 10 years, appellant
was able to complete a full workday, with the accommodation of lying down for 15 minutes
every hour.
In a report dated September 12, 2008, Dr. Kaufman noted that appellant’s employer had
recently withdrawn work accommodations allowing him to take hourly 15-minite breaks, which
had helped him cope with his chronic back pain for several years. Appellant’s condition
reportedly worsened to the point that he sought treatment by Armando Flores, a nurse
practitioner. Dr. Kaufman stated that he was not yet treating appellant on the date of the alleged
injury in January 2008.

1

Information regarding this alleged claim does not appear in the Office’s computer system (iFECS).

2

The record contains a June 16, 2008 report of an x-ray of the lumbar spine.

2

On September 22, 2008 appellant reiterated his claim that he injured his back at work on
January 11, 2008 by working through the morning with only one 15-minute break. He stated that
he delayed seeking medical treatment until January 14, 2008 because of a change in his
insurance coverage.
The record contains a February 4, 2008 report from Dr. Ramon Figueroa, a Boardcertified family practitioner, who noted that he had been treating appellant for several years. He
stated that appellant had a “chronic disability” due to a “chronic low back condition.” Permanent
restrictions included lifting no more than 20 pounds and no excessive or repetitive bending,
pushing, pulling, twisting, stooping or stair climbing. Appellant was also advised to avoid
prolonged sitting (to get up every 45 minutes for comfort and, if necessary, to lie down on a
couch to relieve pressure on his back).
Appellant submitted an August 13, 2008 physical therapy report from Veronica Huerta, a
physical therapist, who diagnosed lumbago and stated that he was unable to tolerate sitting or
standing for more than 30 minutes without lying down.
In a letter dated November 14, 2008, the Office advised appellant that the information
submitted was insufficient to establish his claim and allowed him 30 days to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnosed condition.
Appellant submitted a December 1, 2008 report from Dr. David J. Altman, a Boardcertified neurologist, who treated him for persistent low back pain. Dr. Altman noted a history
of several herniated discs and lumbar surgeries in 1985 and 1997. Appellant told Dr. Altman
that his back pain became severe after sitting for approximately 60 minutes or by bending over,
walking prolonged distances or mowing the lawn. His employer accommodated his condition
for many years by allowing him to get up and walk around after approximately an hour to
ameliorate his back pain. However, beginning in January 2008, such accommodation was no
longer provided. A recent lumbar MRI scan demonstrated postoperative changes at the
L4 through S1 levels, with cage placement at the L4/5 level and discectomy/fusion at ES/SI.
Neurologic examination revealed tenderness to palpation around the L4/5 level. No spasms were
detected. Lower extremity strength testing was 5/5 in the hip flexors, quadriceps, hamstrings,
ankle dorsiflexors and ankle plantar flexors. Reflexes were 2+ in the patellae but absent in the
ankles. Sensation was intact in the lower extremities. Straight-leg raise test was negative
bilaterally. Dr. Altman stated that appellant had a history of L4 through S1 degenerative disc
disease and was status post two surgeries. He presented with persistent mid-low back pain,
which was exacerbated after prolonged sifting for more than an hour. Dr. Altman noted that
appellant “had been apparently functioning well at work until January 2008, when his
accommodations were discontinued and now he is having difficulty sitting at his desk for greater
than 60 minutes because of exacerbation of his sharp, mid-low back pain.” He recommended
that appellant’s prior accommodations at work be reinstated; that appellant avoid lifting greater
than 15 pounds; and that appellant avoid frequent bending activities.
By decision dated January 29, 2009, the Office denied appellant’s claim. It found that the
evidence was insufficient to establish that the events had occurred as alleged and, therefore, was

3

insufficient to establish that he had sustained an injury under the Federal Employees’
Compensation Act on January 11, 2008.
On February 14, 2009 appellant requested an oral hearing. He submitted December 9,
1998 work restrictions from Lt. Colonel Laura Torres-Reyes, which provided that he should be
permitted to get up every 45 minutes “for comfort.” In a May 25, 2000 report, Dr. Richard S.
Lemos, a treating physician, stated that he had been treating appellant for four years for a chronic
low back condition. He recommended that appellant be permitted to rest his back hourly for
15 minutes and that appellant be restricted from lifting more than 20 pounds. The record also
contains a June 23, 2008 report of a functional capacity examination prepared by Ms. Huerta.
In a September 22, 2008 report, Dr. Daniel L. Sanya Maria, a treating physician,
diagnosed “lumbar spondylosis caused by degeneration of intervetebral discs.”
He
recommended that appellant be permitted to lie down every hour for 15 minutes; avoid
prolonged sitting; and avoid lifting more than 20 pounds.
In a February 14, 2009 statement, appellant indicated that the original injury occurred on
November 12, 1985.3 For 10 years, the employing establishment accommodated his low back
condition by permitting him to take hourly breaks. On January 11, 2008 appellant’s pain was
exacerbated by sitting for several hours after his supervisor refused to continue his
accommodations. In the April 10, 2009 telephonic hearing, he reiterated his claim that his back
pain was exacerbated by sitting for a prolonged period of time on January 11, 2008.
By decision dated August 26, 2009, an Office hearing representative modified the
January 29, 2009 decision to accept that the January 11, 2008 event occurred as alleged, namely
that appellant sat for approximately 3.5 hours without a 15-minute break every hour. He
affirmed the denial of the claim, however, on the grounds that the medical evidence was
insufficient to establish that the accepted work event caused or aggravated any diagnosed back
condition.
LEGAL PRECEDENT
The Act provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.4 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.5

3

Appellant stated that his November 12, 1985 injury was reported in claim File No. xxxxxx378. See supra
note 1.
4

5 U.S.C. § 8102(a).

5

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).

4

An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.6 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.7
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.8 An award of
compensation may not be based on appellant’s belief of causal relationship.9 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.10 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.12

6

Robert Broome, 55 ECAB 339 (2004).

7

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith,
54 ECAB 174 (2002). The term injury as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Id.

11

20 C.F.R. § 10.303(a).

12

John W. Montoya, 54 ECAB 306 (2003).

5

ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the January 11, 2008 workplace incident occurred as alleged.
The issue, therefore, is whether appellant has submitted sufficient medical evidence to establish
that the employment incident caused an injury. The medical evidence presented does not contain
a rationalized medical opinion establishing that the work-related incident caused or aggravated
any particular medical condition or disability. Therefore, appellant has failed to satisfy his
burden of proof.
Medical evidence submitted by appellant includes a January 14, 2008 report from
Ms. Vanderslice, a nurse practitioner. As a nurse practitioner does not qualify as a “physician”
under the Act, this report does not constitute probative medical evidence.13 For the same reason,
Ms. Huerta’s June 23, 2008 report of a functional capacity examination and August 13, 2008
physical therapy report do not constitute probative medical evidence.14
Reports from Dr. Kaufman are insufficient to establish appellant’s claim. On June 19,
2008 she restricted him from heavy lifting and excessive bending and twisting. Dr. Kaufman
recommended that appellant be provided a workstation that allowed him to adjust positions for
back comfort and that he be permitted to take breaks to stand and walk to relieve pain. In a
July 8, 2008 follow-up report, she stated that he managed his condition well when he was able to
take 15-minute breaks every hour. Dr. Kaufman did not provide a definitive diagnosis or render
an opinion as to the cause of appellant’s condition.15 The Board has long held that medical
evidence which does not offer an opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.
On July 28, 2008 Dr. Kaufman reported that appellant suffered from lower back pain,
which was likely due to multilevel endplate degenerative changes, as demonstrated by x-ray.
She indicated that, for the previous 10 years, he had been able to complete a full workday, with
the accommodation of lying down for 15 minutes every hour. Dr. Kaufman failed to
provide: examination findings; a definitive diagnosis; or an opinion supporting appellant’s claim
that his back condition was exacerbated by the accepted January 11, 2008 event. Therefore, her
report is of diminished probative value.
On September 12, 2008 Dr. Kaufman noted that appellant’s employer had recently
withdrawn work accommodations allowing him to take hourly 15-minute breaks, which had
helped him cope with his chronic back pain for several years. Appellant’s condition reportedly
13

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2) of the Act provides as follows:
“(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J. Sills, 39 ECAB
572, 575 (1988).
14

A physical therapist is not a “physician” under the Act. See id.

15

The Board has held that a diagnosis of pain does not constitute a basis of payment for compensation, as pain is
considered to be a symptom rather than a specific diagnosis. Robert Broom, supra note 6.

6

worsened to the point that he sought treatment by a nurse practitioner. Dr. Kaufman’s report of
September 12, 2008 does not contain a diagnosis, examination findings or a definitive opinion on
the issue of causal relationship. Rather, it merely documents appellant’s reported history of
events, on which she was required to rely, given that she was not yet treating him on the date of
the alleged injury in January 2008.
On February 4, 2008 Dr. Figueroa stated that appellant had a “chronic disability” due to a
“chronic low back condition.” He provided permanent restrictions, which included lifting no
more than 20 pounds and no excessive or repetitive bending, pushing, pulling, twisting, stooping
or stair climbing. Appellant was also advised to avoid prolonged sitting (to get up every
45 minutes for comfort and, if necessary, to lie down on a couch to relieve pressure on his back).
As the report contained no definitive diagnosis, no examination findings and no opinion on
causal relationship, it is of limited probative value and is insufficient to establish his claim.
On December 1, 2008 Dr. Altman stated that appellant presented with persistent mid-low
back pain, which was exacerbated after prolonged sitting for more than an hour. He noted that
appellant had been apparently functioning well at work until January 2008, when appellant’s
accommodations were discontinued and was having difficulty sitting at his desk for greater than
60 minutes because of exacerbation of his sharp, mid-low back pain. Dr. Altman recommended
that appellant’s prior accommodations at work be reinstated, that appellant avoid lifting greater
than 15 pounds and that he avoid frequent bending activities. He provided examination findings
and reported appellant’s complaints. Dr. Altman did not, however, provide a diagnosis or a
definitive opinion as to the cause of appellant’s back condition. To the degree that he implied a
causal relationship between prolonged sitting and appellant’s back condition, he failed to explain
the physiological process whereby a diagnosed condition resulted from or was aggravated by, the
accepted event. Medical conclusions unsupported by rationale are of little probative value.16
As Dr. Sanya Maria’s September 22, 2008 report does not contain examination findings
or an opinion on causal relationship, it is of limited probative value. 1998 and 2000 reports from
Lt. Colonel Torres-Reyes and Dr. Richard S. Lemos, which do not address the accepted
January 11, 2008 incident, are irrelevant and do not constitute probative medical evidence.
Appellant expressed his belief that his back condition was exacerbated by prolonged
sitting on January 11, 2008. The Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.17 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.18 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that his condition was exacerbated by the work-related
incident is not determinative.
16

Willa M. Frazier, 55 ECAB 379 (2004).

17

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

18

Id.

7

The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit appropriate medical documentation in response to the Office’s request. As there is no
probative, rationalized medical evidence addressing how his claimed back condition was caused
or aggravated by his employment, he has not met his burden of proof to establish that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on January 11, 2008.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8