United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
DEPARTMENT OF THE AIR FORCE, U.S. AIR
FORCES IN EUROPE, ROYAL AIR FORCE
BASEMILDENHALL, England, Employer
__________________________________________

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

Docket No. 20-1589
Issued: August 26, 2021

Case Submitted on the Record

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

JURISDICTION
On September 4, 2020 appellant, through counsel, filed a timely appeal from a July 17,
2020 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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the July 17, 2020 decision, appellant submitted 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 a left wrist condition
causally related to the accepted May 11, 2016 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 15, 2016 appellant, then a 42-year-old lead child development program technician,
filed a traumatic injury claim (Form CA-1), alleging that on May 11, 2016 a child punched her on
her left wrist through a wrist splint she was wearing due to a prior injury while in the performance
of duty.5 OWCP assigned OWCP File No. xxxxxx798. Appellant stopped work on May 11, 2016.
In a development letter dated June 28, 2016, OWCP advised appellant of the deficiencies
of her claim. It specifically noted that there was no diagnosis of any condition resulting from the
alleged injury. OWCP requested additional factual and medical evidence from appellant, and
provided a questionnaire for her completion. It afforded her 30 days to respond.
In response to OWCP’s development letter, appellant submitted additional evidence. On
June 6, 2016 Jamie L. Meyer, a physician assistant, excused appellant from work until June 27,
2016 and then returned her to light duty. Appellant submitted the job description for an education
technician (child development).
In a work/school excuse form dated June 27, 2016, Dr. Alan C. Puddy, a Board-certified
orthopedic surgeon, recommended light duty for one month. In a memorandum dated July 21,
2016, he treated appellant for a left wrist injury sustained while at work. Similarly, in a report
dated July 21, 2016, Dr. Puddy noted that she experienced a twisting injury to her left wrist on
April 11, 2016 while moving a water table. Appellant reported that the ulnar-sided left wrist pain
started to subside when a child struck her on the left wrist while in the performance of duty.
Examination findings of the left upper extremity revealed positive fovea sign, tenderness overlying
the ulnocarpal joint, and limited range of motion. Dr. Puddy noted a magnetic resonance imaging
(MRI) scan arthrogram of the left wrist revealed a traumatic triangular fibrocartilaginous complex
(TFCC) tear, distal radioulnar joint marrow edema, and irregularity consistent with ulnar
impaction syndrome. He found the tears consistent with wrist trauma.
By decision dated August 3, 2016, OWCP denied appellant’s May 11, 2016 traumatic
injury claim, finding that the medical evidence of record was insufficient to establish a medical
condition causally related to the accepted employment incident.
An x-ray dated May 17, 2016 revealed positive ulnar variance. On July 19, 2016 appellant
underwent a left wrist MRI scan arthrogram, which revealed ulnar impaction syndrome, TFCC
4

Docket No. 19-0396 (issued May 18, 2020).

5

OWCP had previously accepted that appellant had sustained a left wrist sprain on April 11, 2016 when emptying
a water table into a sink while in the performance of duty. It assigned OWCP File No. xxxxxx799.

2

sprain, high grade partial tears, distal radioulnar joint reactive marrow edema, synovitis,
scapholunate ligament sprain, full-thickness degenerative tear of the membranous portion,
lunotriquetral ligament sprain, partial tear, distal radius, ulnar, carpal reactive marrow edema;
dorsal synovitis, and triquetrum lunate chondromalacia.
Appellant was treated by Joseph Jones and Jamie Meyer, physician assistants, from May 6
through July 15, 2016, for two left wrist injuries that occurred in April and May 2016 while at
work. Mr. Jones diagnosed pain in the left wrist, Vitamin D deficiency, and hypothyroidism.
On June 27, 2016 Dr. Puddy treated appellant for persistent left wrist pain. He described
two left wrist injuries that occurred at work on April 11 and May 11, 2016. Findings on
examination revealed tenderness overlying the ulnocarpal joint and radiocarpal joint, mild
scapholunate widening, and positive ulnar variance. Dr. Puddy diagnosed left wrist pain.
Dr. Mary Finn, a Board-certified orthopedist, evaluated appellant on July 25, 2016 for a
history of left wrist pain that began on April 11, 2016 when moving a water table at work.
Appellant reported ulnar-sided left wrist pain that started to subside until a child at work struck
her on the left wrist. Findings on examination revealed diffuse tenderness overlying the ulnocarpal
joint. X-rays of the left wrist revealed distal radial ulnar joint widening, ulnar positive variance,
and scapholunate interval. Dr. Finn diagnosed wrist pain, unspecified. She opined that although
the ligamentous findings were likely related to trauma the bony findings were chronic in nature
and therefore unrelated to the current symptoms.
Dr. Joshua Y. Young, a Board-certified orthopedic surgeon, treated appellant on
August 18, 2016 for possible ulnar impaction syndrome of the left wrist. He noted a history of
two left wrist injuries occurring at work on April 11, 2016 and another occurring at an unspecified
date. Findings on examination revealed diffuse tenderness overlying the ulnocarpal join and ulnar
head and tenderness over the ulnar TFCC. Dr. Young diagnosed left wrist pain and recommended
a wrist arthroscopy. In reports dated September 19 and October 13 and 28, 2016, he saw appellant
in surgical aftercare noting that she was status post left wrist arthroscopy and ulnar shortening
osteotomy. In a work excuse dated September 19, 2016, Dr. Young noted that she was off work
until September 28, 2016 and then released to administrative duties with no lifting. He treated
appellant on November 15, 2016 for persistent left wrist pain. Dr. Young noted that she injured
her left wrist on April 11, 2016 while moving a heavy object at work, which was resolving when
she was struck on her left wrist by a child at work. Appellant was status post left wrist arthroscopy
and ulnar shortening osteotomy on September 13, 2016. Dr. Young diagnosed progressive lesion
of the ulnar nerve left upper limb and recommended hardware removal of her left forearm and
ulnar nerve exploration. In a work excuse dated December 8, 2016, he noted that appellant could
work light duty through February 8, 2017. In duty status reports (Form CA-17) dated April 24 and
May 10, 2017, Dr. Young noted that the diagnosis due to injury was “TFCC tear” and ulnar nerve
palsy and returned her to modified-duty work.
On November 14, 2016 appellant was evaluated by Dr. Karen Bellini, a Board-certified
neurologist, for ulnar nerve palsy and possible conduction delay between the elbow and the wrist.
She noted that appellant was status post-arthroscopic surgery in September 2016 and experienced
clawing of the fourth and fifth fingers, wasting of the thenar and hypothenar eminences, paresis of
ulnar innervated hand muscles, and decreased sensation in ulnar distribution over palmar and
dorsal aspects of the left hand. An x-ray of the left wrist revealed ulnar postsurgical changes
without complications. Dr. Bellini indicated that the injury was localized to the humeral-ulnar
3

aponeurosis, the cause and severity was unclear, with possible etiologies of neurapraxia and
axonotmesis from surgery, cast compression, or a combination of both. She diagnosed lesion of
the ulnar nerve, left upper limb and pain in the left hand. On November 22, 2016 Dr. Young
performed a left forearm hardware removal, ulnar neurolysis and diagnosed left ulnar nerve palsy.
He treated appellant postoperatively on January 23 and March 13, 2017 and noted a history of
work injuries occurring on April 11 and May 11, 2016. An x-ray revealed interval healing with
some callus formation. Dr. Young noted that appellant was limited by flexion contracture on her
small finger and extension contracture of her thumb.
On February 8 and 10, 2017 appellant was treated by Nathan Hamilton, a physician
assistant, for hypothyroidism, fatigue, and a general feeling of malaise, which began around the
time of her April 11, 2016 wrist injury. Mr. Hamilton diagnosed adjustment disorder, unspecified,
and Vitamin D deficiency.
Appellant was seen in consultation with James Hopkinson-Woolley, an orthopedic hand
surgeon, on February 27, 2017 for loss of use of her left hand. She reported injuring her left wrist
in April 2016 and then knocked her wrist at work when her symptoms deteriorated.
Mr. Hopkinson-Woolley diagnosed loss of dexterity of the left hand following ulnar nerve injury
in association with ulnar shortening osteotomy.
In a June 15, 2017 memorandum, Dr. Young reported treating appellant since August 18,
2016 for two left wrist injuries. On July 1, 2017 he asserted that the injuries she sustained on
April 11 and May 11, 2016 were related and both occurred at work. Dr. Young diagnosed soft
tissue TFCC tear. He opined that it was the cumulative effect of both injuries that sent appellant
to his clinic. In a work excuse form dated June 12, 2017, Dr. Young released her to light duty on
August 12, 2017.
On June 23, 2017 appellant was treated by Mr. Hamilton, a physician assistant, for a left
wrist injury that occurred on April 11, 2016. Findings on examination revealed abnormal motion
of the left hand and weakness of the fingers. Mr. Hamilton diagnosed lesion of the ulnar nerve,
left upper limb and opined that it was reasonable to conclude that appellant’s wrist injury and
subsequent encounters are all related to her April 11, 2016 employment injury.
On July 18, 2017 appellant requested reconsideration of the decision dated August 3, 2016,
under OWCP File No. xxxxxx798.
By decision dated October 16, 2017, OWCP denied modification of its August 3, 2016
decision.
On September 13, 2018 appellant requested reconsideration. She submitted a report dated
August 14, 2018 from Dr. Young, who treated her for a symptomatic TFCC tear. Appellant
reported injuring her left wrist on April 11, 2016 when she was moving a water table. She reported
that her ulnar-sided left wrist pain was subsiding when she was struck on her left wrist by a child
at work on May 11, 2016. Dr. Young opined that this episode resulted in increased pain radiating
proximally that did not subside until she had left wrist surgery. He noted that appellant had nerve
complications relating to the surgery, which left her with residual disability. Dr. Young opined
that the two injuries were the direct cause of her wrist pain and surgery. He advised that, although
ulnar positive variance may predispose appellant to a wrist injury, it was the two injuries
themselves that caused pain and disability.
4

By decision dated October 24, 2018, OWCP denied modification of the October 16, 2017
decision.
An electromyogram (EMG) and nerve conduction velocity (NCV) study dated
September 26, 2018 revealed moderate left, mildly axonometric motor and sensory ulnar
mononeuropathy just proximal to the left wrist at the medial distal forearm, mild-to-moderate left
neurapraxia, and ulnar neuropathy at the elbow.
On December 13, 2018 appellant appealed to the Board under OWCP File No. xxxxxx798.6
By decision dated May 18, 2020, the Board set aside the October 24, 2018 decision and remanded
the case with instructions to administratively combine OWCP File Nos. xxxxxx798 and
xxxxxx799, to be followed by a de novo decision.
Upon return of the case record, OWCP administratively combined OWCP File Nos.
xxxxxx799 and xxxxxx798, with xxxxxx798 designated as the master file.
While the appeal was pending before the Board, appellant submitted a report from
Dr. Aaron M. McGuire, an osteopath and Board-certified physiatrist, who diagnosed left wrist
sprain, ulnar impaction syndrome, TFCC tear at the ulnar attachment, and axonal ulnar
mononeuropathy. Dr. McGuire noted that on April 11, 2016 appellant was emptying water out of
a sensory table and twisted her left wrist resulting in a diagnosis of acute sprain. He further noted
that on May 12, 2016 she was dealing with an unruly child who punched her in the right wrist.
Dr. McGuire opined that appellant sustained 14.5 percent permanent impairment of the left upper
extremity. He opined, to a reasonable degree of medical certainty, that her injuries arose out of
and are a direct result of the work-related injury she sustained on April 11, 2016 with a secondary
injury on May 12, 2016.
By decision dated July 17, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,8 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

6

Supra note 4.

7

Supra note 2.

8

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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employment injury.9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.10
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. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.11
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.12 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 specific employment factors
identified by the employee.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left wrist
condition causally related to the accepted May 11, 2016 employment incident.
In reports dated June 15 and July 1, 2017, Dr. Young opined that appellant’s injuries
sustained on April 11 and May 11, 2016 were related and occurred at work. He diagnosed soft
tissue TFCC tear and opined that the cumulative effect of both wrist injuries sent her to his clinic.
Similarly, on August 14, 2018 Dr. Young reported that appellant sustained a previous twisting
injury to her left wrist while moving a water table on April 11, 2016. Appellant subsequently
reported being struck on her left wrist by a child at work on May 11, 2016. Dr. Young opined that
these two injuries were the direct cause of her wrist pain that surgery. The Board finds that,
although he supported causal relationship, he did not provide medical rationale explaining the basis
of his conclusory opinion regarding the causal relationship between appellant’s left wrist condition
and the May 11, 2016 employment incident.14 Dr. Young did not explain the process by which
being struck on her left wrist by a child on May 11, 2016 would have caused the diagnosed
9

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
10

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
11
T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
12

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
13

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
14

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

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conditions. As the opinion of appellant’s physician regarding causal relationship was conclusory
and unexplained, it was insufficient to meet appellant’s burden of proof. These reports are thus
insufficient to establish appellant’s claim.15
Dr. Young treated appellant on August 18, 2016 for possible ulnar impaction syndrome of
the left wrist. He noted a history of two left wrist injuries occurring at work on April 11 and
May 11, 2016. Dr. Young diagnosed left wrist pain. In reports dated September 19, and
October 13 and 28, 2016, he saw appellant in surgical aftercare for a left wrist arthroscopy.
Similarly, in reports dated November 15 and 22, 2016 and January 23 and March 13, 2017,
Dr. Young noted that she injured her left wrist on April 11, 2016 while moving a heavy object at
work, which was healing when she was struck by a child at work. He diagnosed progressive lesion
of the ulnar nerve left upper limb. The Board has held, however, 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 These reports are, therefore, insufficient to establish
appellant’s claim.
In a work excuse note dated September 19, 2016, Dr. Young noted that appellant was off
work until September 28, 2016 and then released to administrative duties. In other work excuse
notes dated December 8, 2016 and June 12, 2017, he released her to light duty through February 8,
2017 and then extended it through August 12, 2017. Similarly, in CA-17 forms dated April 24
and May 10, 2017, Dr. Young noted the diagnosis due to injury was “TFCC tear” and ulnar nerve
palsy and returned appellant to light-duty work. In these notes that he did not offer an opinion as
to whether a diagnosed condition was causally related to the accepted May 11, 2016 employment
incident. As noted above, the Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.17 These notes from Dr. Young are, therefore, insufficient to establish appellant’s
claim.
In a work/school excuse form dated June 27, 2016, Dr. Puddy recommended light duty. In
a July 21, 2016 memorandum, he treated appellant for a left wrist injury sustained at work.
Similarly, on July 21, 2016 Dr. Puddy treated her for left wrist pain that began on April 11, 2016
when she was moving a water table. Appellant reported being subsequently struck by a child on
her left wrist while at work. Dr. Puddy noted that an MRI scan arthrogram of the left wrist
demonstrated a TFCC tear and he opined that the tears were consistent with wrist trauma.
However, Dr. Puddy did not address whether appellant’s employment activities on May 11, 2016
had caused or aggravated a diagnosed medical condition.18 Therefore, these reports are insufficient
to meet appellant’s burden of proof.
Dr. Finn evaluated appellant on July 25, 2016 for left wrist pain that began on April 11,
2016 when moving a water table at work. Appellant reported a subsequent injury occurred when
she was struck by a child at work on the left wrist. Dr. Finn, however, did not address whether
15

J.M., 58 ECAB 478 (2007).

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17

Id.

18

Id.

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appellant’s employment activities on May 11, 2016 caused or aggravated a diagnosed medical
condition. As such, the medical note by Dr. Finn is of no probative value and is insufficient to
establish appellant’s claim.19
On November 14, 2016 Dr. Bellini treated appellant for ulnar nerve palsy. She indicated
that the injury was localized to the humeral-ulnar aponeurosis, the cause and severity was unclear,
with several possible etiologies. Dr. Bellini diagnosed lesion of the ulnar nerve, left upper limb,
and pain in the left hand. As this report does not provide an opinion on causal relationship between
appellant’s diagnosed conditions and the accepted May 11, 2016 employment incident, this report
is also of no probative value and is insufficient to meet appellant’s burden of proof.20
Appellant submitted a September 23, 2019 report from Dr. McGuire who diagnosed left
wrist sprain and ulnar impaction syndrome, TFCC tear at the ulnar attachment, and axonal ulnar
mononeuropathy. Dr. McGuire noted a history of the April 11, 2016 work injury. He further noted
that on May 12, 2016 appellant was dealing with an unruly child who punched her in the right
wrist. Dr. McGuire opined to a reasonable degree of medical certainty that appellant’s injuries
arose out of and are a direct result of the work-related injury she sustained on April 11, 2016 with
a secondary injury on May 12, 2016. However, the record reveals that the injury was to the left
wrist and occurred on May 11, 2016. The Board has held that medical opinions based on an
incomplete or inaccurate history are of limited probative value. 21 This report is, therefore,
insufficient to establish appellant’s claim.
Appellant was evaluated by several physician assistants. The Board has held that medical
reports signed solely by a physician assistant22 are of no probative value as such health care
providers are not considered “physician[s]” as defined under FECA.23 Consequently, this evidence
is insufficient to establish appellant’s claim.24
Appellant also submitted diagnostic studies including x-rays, a left wrist MRI scan
arthrogram, an EMG/NCV study. The Board has held that diagnostic test reports, standing alone,
lack probative value on the issue of causal relationship as they do not provide an opinion as to

19

Id.

20

Id.

21

G.E., Docket No. 19-1190 (issued November 26, 2019); T.O., Docket No. 17-0093 (issued March 22, 2018).

22

See S.E., Docket No. 08-2214 (issued May 6, 2009) (reports of a physician assistant have no probative value as
medical evidence).
Section 8101(2) of FECA provides that 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); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
23

24

N.B., Docket No. 19-0221 (issued July 15, 2019).

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whether the accepted employment incident caused a diagnosed condition.25 These diagnostic
reports are therefore also insufficient to establish appellant’s claim.
As the medical evidence of record is insufficient to establish causal relationship between a
left wrist condition and the accepted May 11, 2016 employment incident, appellant has not met
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left wrist
condition causally related to the accepted May 11, 2016 employment incident.

25

A.P., Docket No 18-1690 (issued December 12, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the July 17, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 26, 2021
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
John Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1909
Issued: March 23, 2007

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 August 14, 2006 appellant filed a timely appeal of a decision of the Office of
Workers’ Compensation Programs dated August 2, 2006 denying reconsideration and a
November 14, 2005 merit decision terminating compensation. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
wage-loss and medical benefits effective March 2, 2005; and (2) whether the Office properly
declined to reopen her claim for merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The Office accepted that appellant sustained aggravation of degenerative disc disease and
a herniated nucleus pulposus at L4-5 causally related to her employment as a letter carrier. She
began working in a light-duty position at six hours per day on May 19, 2000. By decision dated
February 16, 2001, the Office found that appellant had no loss of wage-earning capacity based

on her actual earnings. The record indicated that the employing establishment paid her two
hours per day of administrative leave.
Appellant continued to work six hours per day and receive two hours of paid
administrative leave. As of September 4, 2004, she no longer received payment for
administrative leave.
In a decision dated September 20, 2004, the Office determined that appellant’s wageearning capacity was represented by her actual earnings at six hours per day. The Office found
that, pursuant to 5 U.S.C. § 8115 and 8106, she was entitled to compensation as of September 5,
2004 based on a loss of wage-earning capacity of $181.88 per week.
The Office referred appellant to Dr. John Douthit, an orthopedic surgeon, for a second
opinion examination. In a report dated October 20, 2004, Dr. Douthit provided a history and
results on examination. He stated that appellant’s current complaint was pain in her upper back,
which he believed was related to kyphoscoliosis and thoracic spine degenerative disease, rather
than the employment injury. Dr. Douthit opined that employment had caused a temporary
aggravation of lumbar degenerative disc disease that ceased when she reached maximum medical
improvement on February 28, 2001.
By letter dated January 24, 2005, the Office advised appellant that it proposed to
terminate her compensation for wage-loss and medical benefits based on the report of
Dr. Douthit. In a decision dated March 1, 2005, the Office terminated compensation for wageloss and medical benefits effective March 2, 2005. The Office did not discuss the wage-earning
capacity determinations.
On March 3, 2005 the Office received a February 14, 2005 report from Dr. Yechiel
Kleen, a physiatrist, who provided a history and results on examination. Dr. Kleen stated that he
agreed with prior treating physicians that appellant sustained a permanent impairment as a result
of the work-related injury. He indicated that he did not agree with Dr. Douthit that appellant’s
condition was related to kyphoscoliosis and degenerative changes. Dr. Kleen also stated that
appellant clearly documents that lower back symptoms, not thoracic symptoms, contribute to her
limitations at work.
In a decision dated November 14, 2005, the Office denied modification of the March 1,
2005 decision. The Office found that the evidence was not sufficient to create a conflict in the
evidence.
Appellant requested reconsideration by letter dated July 7, 2006. Her representative
indicated that an additional report from Dr. Kleen was to be submitted, but the record does not
contain an additional medical report. By decision dated August 2, 2006, the Office denied the
request for reconsideration without merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
2

rehabilitated, or the original determination was, in fact, erroneous.1 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.2
ANALYSIS -- ISSUE 1
The Office issued a wage-earning capacity decision dated September 20, 2004 based on
appellant’s actual earnings in a light-duty position. Once a wage-earning capacity decision is
made, it remains in effect until it is properly modified.3 In this case, the Office attempted to
terminate compensation, without addressing the actual issue presented. The issue is modification
of the wage-earning capacity determination, and the Office must meet the requirements for
modification as noted above. It is not clear whether, based on the report of Dr. Douthit, the
Office was attempting to find that the prior wage-earning capacity was erroneous, or whether it
had found a material change in the employment-related condition.
The March 1 and November 14, 2005 decisions do not make adequate findings and
address the proper issue of modification of wage-earning capacity. The Office did not
acknowledge that a wage-earning capacity determination had been made, identify the
modification issue, discuss the evidence and explain how it met the requirements for
modification. It is the Office’s burden of proof and they did not meet their burden in this case.
In view of the Board’s decision, it will not address the reconsideration issue.
CONCLUSION
The issue in the case is whether a modification of the wage-earning capacity
determination was appropriate, and the Office failed to make proper findings on the issue
presented.

1

Sue A. Sedgwick, 45 ECAB 211 (1993).

2

Id.

3

See Katherine T. Kreger, 55 ECAB 633 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 14, 2005 is reversed.
Issued: March 23, 2007
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
__________________________________________
P.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, East Orange, NJ, Employer
__________________________________________

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Appearances:
1
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-1226
Issued: March 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 23, 2016 appellant, through counsel, filed a timely appeal from a February 2,
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 the case.

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.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits as of August 23, 2015; (2) whether appellant has
established continuing disability caused by residuals of her accepted lumbar condition following
the termination of compensation benefits on August 23, 2015; and (3) whether appellant
established a psychiatric condition causally related to the July 19, 2001 employment injury.
FACTUAL HISTORY
On July 19, 2001 appellant, then a 55-year-old nurse, injured her lower back while
pushing a patient in a wheelchair. She filed a traumatic injury claim (Form CA-1) on July 24,
2001, which OWCP accepted for lumbar radiculitis. Appellant stopped work on July 19, 2001.
OWCP commenced payment for total disability and she was placed on the periodic rolls on
January 8, 2002.
In a September 23, 2006 report, Dr. Emmanuel Hriso, Board-certified in psychiatry and
neurology, advised that he had been treating appellant for depression, anxiety, and insomnia
since February 26, 2003. He reported that these conditions were aggravated by multiple injuries
appellant had sustained while working as a nurse for the employing establishment. Dr. Hriso
reiterated on July 19, 2001 that appellant had aggravated her back condition while pushing a
patient in a wheelchair. He advised that this injury caused her to become disabled. Dr. Hriso
reported that she has not been able to work since that date.
In his medical report, Dr. Hriso reported that appellant was in acute psychiatric distress,
noting that she had complaints of depressed mood, tearfulness, anxiety, panic attacks, feelings of
worthlessness, poor self-esteem, insomnia, and musculoskeletal pain involving her lower back
and knees, which made it difficult for her to walk. He noted that she denied any psychiatric
history or treatment prior to her July 2001 injury. Dr. Hriso advised that appellant had major
depression secondary to her disabled state, resulting from her multiple work injuries sustained at
work. He opined that she was having a difficult time adjusting to her disabled state after having
years of productive activity as a nurse which had caused self-esteem issues, feelings of
worthlessness, and had further aggravated her depressed condition. Dr. Hriso reported that,
although her acute depression and anxiety symptoms improved with treatment, appellant
continued to experience chronic sadness and depression, as well as anxiety attacks.
Dr. Hriso diagnosed major depressive disorder, panic disorder, anxiety disorder, and
dysthymic disorder. He opined that her psychiatric conditions involving chronic depression and
anxiety were directly related to her work injuries, which caused significant physical limitations
in her ability to function. Dr. Hriso advised that she was chronically disabled and unable to
resume any gainful employment.
In a letter dated October 30, 2006, received by OWCP on November 3, 2006, appellant’s
counsel requested that OWCP expand the claim to accept the psychiatric conditions diagnosed
by Dr. Hriso in his September 23, 2006 report.

2

In a June 19, 2014 report appellant’s treating physician, Dr. Laura E. Ross, an osteopath
Board-certified in orthopedic surgery, noted that she was treating appellant for her lower back
pain and lower extremity radiculopathy. She noted that appellant also had complaints of neck
pain and had become depressed. Dr. Ross reported no new neurologic findings of the upper
extremities, but advised that she had tenderness along the paracervical musculature. She noted
that appellant was experiencing cervical, thoracic, and lumbar pain and had a history of cervical
and lumbar disc protrusions with bilateral L5 radiculopathies. Dr. Ross advised that appellant
was not working, was unable to perform the job she held at the time of her injury, and opined
that her prognosis is poor. She recommended that appellant continue with her treatment plan and
home exercises and return for treatment as needed.
In order to determine appellant’s current condition and ascertain whether she had
continuing residuals from her accepted lumbar radiculitis condition, OWCP referred her for a
second opinion examination with Dr. Willie E. Thompson, a Board-certified orthopedic surgeon.
In an August 15, 2014 report, Dr. Thompson noted that appellant underwent electromyelogram
(EMG) testing and nerve conduction velocity (NCV) studies of the lower extremities on
December 18, 2003, the results of which were within normal limits. He advised that she suffered
a soft tissue sprain/strain to her lower back on July 19, 2001, and opined that there was no
objective evidence indicating that she suffered anything more serious than a soft tissue sprain to
her lower back. Dr. Thompson noted that he was unable to adequately assess appellant’s
condition because of her lack of appropriate participation in the examination and that his opinion
was based primarily on his review of the medical records. He advised that he was unable to
opine, with any degree of medical certainty, whether appellant had residuals of the 2001 work
injury or whether she was restricted from a return to gainful employment due to her lack of
participation in the examination process. OWCP requested clarification from Dr. Thompson.
In a November 12, 2014 supplemental report, Dr. Thompson advised that, based on
review of the medical records and his examination of appellant, she sustained no more than a soft
tissue injury to her lower back. He noted that the natural progression of these types of injuries
was for them to resolve within a brief period of time without residuals unless there were
complications, of which there were none in this case. Dr. Thompson reported that there were no
objective findings and no evidence to support assignment of physical limitations. He advised
that appellant had recovered from the July 19, 2001 work injury, that she could safely return to
work without restrictions, and that she had no need for any further medical treatment.
OWCP found that there was a conflict in the medical evidence between Dr. Ross and
Dr. Thompson as to whether appellant continued to have residuals from her accepted lumbar
radiculitis condition. It therefore referred her to Dr. Lance Yarus, an osteopath, for a referee
medical examination. Dr. Yarus was provided a statement of accepted facts, the medical
evidence of record, and a set of questions regarding appellant’s injury and ongoing disability
status. In a February 9, 2015 report, he found that appellant had fully recovered from her
accepted lumbar radiculitis condition and advised that she had no residuals from the July 19,
2001 employment injury. Dr. Yarus further found that there were no diagnoses in addition to
those already accepted in regard to the July 19, 2001 work injury. He concurred with
Dr. Thompson that medical evidence failed to support a finding that she sustained anything more
than a strain/sprain of the lumbar spine with neuritis. Dr. Yarus agreed with Dr. Thompson that
appellant had recovered from the July 19, 2001 employment injury and had no limitations or

3

restrictions with regard to the July 2001 work injury, which had fully resolved. He concluded
that she did not require any further medical treatment for her lower back.
In an April 27, 2015 report, Dr. Ross advised that appellant continued to experience pain
and muscle spasms in her lower back and still had decreased sensation along the L5 and S1
distributions bilaterally. She reported that appellant should continue to stay off work, was unable
to perform her date-of-injury job, and had a poor prognosis.
On March 18, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits. It found that the weight of the medical evidence, as represented by
Dr. Yarus’ impartial opinion, established that her accepted lumbar radiculitis condition had
ceased and that she had no work-related residuals stemming from this condition.
In a June 11, 2015 report, Dr. Ross advised that appellant continued to experience pain in
her lumbar spine, which was injured in the July 19, 2001 employment injury. She reported that
appellant was currently not working. Dr. Ross noted continued muscle spasms and limited range
of motion in the lumbar spine, but had no new neurovascular findings. She noted that appellant
had undergone a lumbar magnetic resonance imaging (MRI) scan which showed multilevel disc
degeneration and a herniated nucleus pulposus at the L5-S1 level. Dr. Ross opined that the
recommended treatment for these findings was medically necessary and causally related to the
July 19, 2001 work injury.
By decision dated July 27, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective August 23, 2015, finding that Dr. Yarus’ impartial opinion
represented the weight of the medical evidence.
By letter dated August 5, 2015, counsel requested an oral hearing, which was held on
November 13, 2015. At the hearing, appellant stated that she began treatment for depression with
Dr. Hriso in 2003, as she had become depressed, anxious, and had insomnia due to the effects of
her July 19, 2001 lower back work injury. She reported that Dr. Hriso prescribed Xanax for her
condition. Counsel stated at hearing that he had been trying to have OWCP accept a psychological
condition causally related to the July 2001 work injury and that he had requested that OWCP
expand its accepted conditions to include a psychological condition as early as November 3, 2006.
He noted that Dr. Hriso had submitted a report dated September 23, 2006 in which he opined that
there was a causal relationship between appellant’s psychiatric condition and her work injuries.
In support of her claim for a consequential psychiatric claim, appellant submitted a
December 1, 2015 report from Dr. Hriso. Dr. Hriso reiterated that he had been treating appellant
for depression, anxiety, and insomnia since February 26, 2003 and that these conditions had been
aggravated for multiple reasons while working as a nurse with the employing establishment. He
noted that appellant was in acute psychiatric distress. Appellant related complaints of depressed
mood, tearfulness, anxiety, panic attacks, feeling of worthlessness, poor self-esteem, insomnia, and
musculoskeletal pain involving her lower back and knees which caused difficulties with her
ambulation. Dr. Hriso advised that appellant denied any psychiatric history or treatment prior to
her July 2001 injury.

4

In that report Dr. Hriso diagnosed major depression secondary to appellant’s disabled state
which stemmed from her multiple work-related injuries. He noted that she was having a very
difficult time adjusting to her disabled state after having many productive years as a nurse and this
caused self-esteem problems and feelings of worthlessness which further aggravated her depressed
condition. Dr. Hriso prescribed medication beginning in 2012. He noted that, although her acute
depressive and anxiety symptoms improved with treatment, she continued to experience chronic
sadness, depression, and anxiety attacks. Dr. Hriso diagnosed major depressive disorder, panic
disorder, anxiety disorder and dysthymic disorder without evidence of personality disorders.
Dr. Hriso further related that appellant’s history of multiple, work-related injuries involving
her back, knees, and foot affected her daily functioning, ambulation, and caused chronic pain, with
resulting depression and anxiety. He opined that her psychiatric conditions of chronic depression
and anxiety were directly related to her work injuries, which caused significant physical limitation
in her functioning as well as an overall change in her activities of daily living. Dr. Hriso advised
that her conditions were permanent and her prognosis for a return to her previous level of
functioning was extremely poor. He concluded that appellant was chronically disabled, both
physically and psychiatrically, and would not be able to resume any form of gainful employment,
especially as a nurse. Dr. Hriso reported that she was unable to work due to her psychiatric
condition and required continued psychiatric treatment in the form of antidepressant medications,
anxiolytics, and supportive psychotherapy.
By decision dated February 2, 2016, an OWCP hearing representative affirmed the July 27,
2015 termination decision. He found that the weight of the medical evidence, as represented by
Dr. Yarus’ impartial opinion, indicated that her accepted lumbar radiculitis condition had resolved
without residuals. In addition, the hearing representative denied appellant’s request to expand the
claim to include a psychiatric condition, finding that Dr. Hriso’s opinion was insufficient to meet
his burden to establish that this condition was causally related to the July 19, 2001 work injury.
LEGAL PRECEDENT -- ISSUE 1
Under FECA once OWCP accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, OWCP must

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. Tysinger, 51 ECAB 638, 645 (2000).

4

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

5

See Del K. Rykert, 40 ECAB 284 (1988). L.J., Docket No. 14-1682 (December 11, 2015).

5

establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.6
Section 8123(a) 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.7 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to justify termination of appellant’s
wage-loss compensation and medical benefits. Following a finding of a conflict in medical
opinions between Dr. Ross for appellant and Dr. Thompson for OWCP, a referee opinion was
properly obtained to resolve the conflict.
In a February 9, 2015 report, Dr. Yarus opined that appellant had fully recovered from
her accepted lumbar radiculitis condition and that she had no limitations or restrictions with
regard to the July 2001 work injury, which had fully resolved. He determined that she did not
require any further medical treatment for her lower back and that she had no residuals from the
July 19, 2001 employment injury. Dr. Yarus further determined that there were no diagnoses
stemming from the July 19, 2001 work injury beyond to those already accepted. OWCP is found
to have properly relied on Dr. Yarus’ opinion in its July 27, 2015 decision, finding that appellant
had no residual disability causally related to her accepted lumbar radiculitis condition.
The Board finds that Dr. Yarus’ impartial opinion established that appellant no longer
had any residuals from her accepted lumbar radiculitis condition. Dr. Yarus’ opinion is
sufficiently probative, rationalized, and based upon a proper factual background. Therefore,
OWCP properly accorded Dr. Yarus’ opinion the special weight of an impartial medical
examiner.9 While appellant had submitted additional medical evidence from Dr. Ross following
the impartial medical examiner’s report of Dr. Yarus, her reports merely describe ongoing
physical complaints. As Dr. Ross was on one side of the conflict, these new reports are
insufficient to overcome the special weight afforded to Dr. Yarus.
The Board therefore finds that Dr. Yarus’ opinion constituted the weight of medical
opinion and supports OWCP’s July 27, 2015 decision to deny any entitlement to continuing
compensation based on her accepted condition.

6

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

7

Regina T. Pellecchia, 53 ECAB 155 (2001).

8

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

9

Gary R. Seiber, 46 ECAB 215 (1994).

6

On appeal, counsel argues that Dr. Yarus’ opinion did not warrant the special weight of
an impartial medical examiner and contends that his February 9, 2015 report was not a sufficient
basis on which to find that appellant was no longer disabled from the July 19, 2001 injury
because he did not evaluate whether appellant had recovered from his claimed psychiatric
condition, which counsel contends was causally related to the July 19, 2001 injury. He further
contends that Dr. Yarus’ report was not sufficiently rationalized to merit the weight of an
impartial medical examiner. The Board finds that Dr. Yarus is entitled to the special weight and
is a sufficient basis to support OWCP’s termination of wage-loss and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
Following a proper termination of compensation benefits, the burden of proof shifts to the
claimant to establish continuing employment-related disability.10
To establish causal
relationship between the condition, any attendant disability, and the employment injury, an
employee must submit rationalized medical evidence based on a complete medical and factual
background, supporting such a causal relationship.11 Causal relationship is a medical issue and
the medical evidence required to establish causal relationship is rationalized medical evidence.12
To prevail, the claimant must establish by the weight of the reliable, probative, and substantial
evidence that she had an employment-related disability which continued after termination of
compensation benefits.13
ANALYSIS -- ISSUE 2
The issue of whether appellant has established continuing disability following
termination is a medical one, based on the medical evidence of record.14 Appellant did not
submit any additional medical evidence following the July 27, 2015 termination decision, other
than the December 1, 2015 report from Dr. Hriso. This report pertains to a claimed psychiatric
condition. OWCP, however, has not accepted a psychiatric condition causally related to the
July 19, 2001 employment injury. Appellant has not provided a probative medical opinion to
support that she was disabled or currently required medical treatment due to her employmentrelated lumbar radiculitis. The Board therefore finds that appellant has failed to meet her burden
of proof to establish continuing disability after July 27, 2015.
LEGAL PRECEDENT -- ISSUE 3
An employee seeking benefits under FECA15 has the burden of proof to establish that the
essential elements of his or her claim including the fact that the individual is an “employee of the
10

Id.

11

Supra note 7.

12

See Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

See J.A., Docket No. 15-0908 (issued August 6, 2015).

14

Supra note 12.

15

Supra note 2.

7

United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.16 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.17
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 medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.18
Appellant has the burden of proof to establish by the weight of the substantial, reliable,
and probative evidence, a causal relationship between his claimed bilateral carpal tunnel
condition and his federal employment. This burden includes providing medical evidence from a
physician who concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.19
ANALYSIS -- ISSUE 3
The Board finds that appellant failed to submit sufficient medical evidence to establish
that her claimed psychiatric condition was causally related to the July 19, 2001 injury. For this
reason, appellant did not discharge her burden of proof.
With regard to her claimed psychiatric condition, Dr. Hriso submitted reports dated
September 23, 2006 and December 1, 2015. In these reports he noted that he had been treating
appellant for depression, anxiety and insomnia since February 2003 and he opined that these
conditions were aggravated by employment factors. Dr. Hriso related complaints of depressed
16

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

17

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

18

Id.

19

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

8

mood, tearfulness, anxiety, panic attacks, feeling of worthlessness, poor self-esteem, insomnia, and
musculoskeletal pain involving her lower back and knees, which made it difficult for her to walk.
He diagnosed major depression secondary to her disabled state, which stemmed from her multiple
work-related injuries. Dr. Hriso noted that appellant was not able to adjust to her disabled state
after being productive as a nurse for so many years, which damaged her self-esteem and
aggravated her depressed condition. He related that she had a history of work-related injuries
which adversely affected her daily functioning and caused chronic pain, with resulting depression
and anxiety. Dr. Hriso opined that her psychiatric conditions of chronic panic disorder, anxiety
disorder, and dysthymic disorder were directly related to her work injuries.
The reports of Dr. Hriso are of limited probative value as he did not provide adequate
medical rationale as to why appellant’s psychiatric condition was causally related to the July 19,
2001 employment injury.20 The weight of medical opinion is determined by the opportunity for
and thoroughness of examination, the accuracy and completeness of physician’s knowledge of
the facts of the case, the medical history provided, the care of analysis manifested, and the
medical rationale expressed in support of stated conclusions.21 Dr. Hriso’s reports described his
treatment of appellant for a major depressive disorder, panic disorder, anxiety disorder, and
dysthymic disorder. He prescribed antidepressant medications, anxiolytics, and supportive
psychotherapy to ameliorate these conditions. Dr. Hriso, however, did not sufficiently describe
how the July 19, 2001 injury caused or aggravated the claimed conditions. His opinion on
causation is of limited probative value for the further reason that it is generalized in nature and
equivocal. Dr. Hriso did not provide adequate medical evidence to establish that appellant’s
claimed psychiatric condition was causally related to the July 19, 2001 employment injury.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship.22 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim. However,
appellant failed to submit such evidence. Consequently, the Board finds that she has not met her
burden of proof to establish additional conditions causally related to her accepted work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

20

William C. Thomas, 45 ECAB 591 (1994).

21

See Anna C. Leanza, 48 ECAB 115 (1996).

22

Id.

9

CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of August 23, 2015. The Board finds that she has not
established continuing disability due to of her accepted lumbar radiculitis condition following the
termination of compensation benefits on August 23, 2015. The Board finds that appellant has
failed to meet her burden of proof to establish that her claimed psychiatric condition was
causally related to the July 19, 2001 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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

Docket No. 21-1372
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 28, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has established right plantar fasciitis causally related to the
accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 28, 2021 OWCP decision, appellant submitted additional evidence to
the Board. 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.

FACTUAL HISTORY
On April 19, 2021 appellant, then a 52-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed plantar fasciitis due to factors of his federal
employment, including wearing ice grippers on his feet to deliver mail during two to three weeks
of icy conditions. He reported worsening pain and soreness in the sole of his right foot, near his
heel, which persisted even after he stopped wearing the ice grippers. Appellant reported that he
first became aware of his condition and its relation to his federal employment on
February 18, 2021. He explained that he delayed filing his claim because he hoped the pain would
go away after he stopped wearing the ice grippers. On the reverse side of the claim form,
appellant’s supervisor indicated that appellant first reported his condition on March 31, 2021 and
was last exposed to the conditions alleged to have caused his condition on April 1, 2021.
In support of his claim, appellant submitted a duty status report (Form CA-17) dated
March 30, 2021, bearing an illegible signature. The provider diagnosed plantar fasciitis and
recommended work restrictions limiting appellant’s standing, walking, climbing, kneeling,
bending, stooping, twisting, pulling, and pushing.
In a development letter dated April 27, 2021, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
Appellant subsequently submitted an April 26, 2021 medical report from Dr. Steven Fish,
a Board-certified orthopedic surgeon, relating appellant’s history of injury and treatment. Dr. Fish
noted that appellant had been having difficulties with his right heel since February 18, 2021 as a
result of walking on ice with ice scrapers on his shoes. His examination revealed-moderate
bilateral pes planus, fullness along the medial aspect of the right plantar heel, tenderness along the
plantar aspect of the heel at the insertion of the plantar fascia, and occasional pain radiating distally
along the plantar fascia. Dr. Fish reviewed previous x-rays, which revealed-moderate mid-foot
arthritis and some degree of pes planus. He diagnosed plantar fascial fibromatosis and bilateral
pes planus and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose him to this, but this started while
[appellant] was at work.” Dr. Fish prescribed custom orthotics, recommended physical therapy,
and advised that appellant should be off work for one week to rest before returning with
restrictions. In a disability certificate of even date, he advised that appellant was 100 percent
disabled from work from April 27 through May 4, 2021, after which he could return to work with
restrictions. In a Form CA-17 of even date, Dr. Fish related appellant’s history of injury and
diagnosed plantar fasciitis. He advised that appellant could return to work on May 4, 2021 with
restrictions.
On May 12, 2021 appellant responded to OWCP’s development questionnaire, relating that
he had worked as a full-time mail carrier for 15 years, walking 8 to 10 miles each day, and that he
believed that walking on icy sidewalks using ice grippers caused his claimed condition. He
explained that it was icy for two to three weeks and he wore his ice grippers while delivering mail
during most of that time. Appellant began to feel pain while working on or around

2

February 18, 2021. The pain was constant, but fluctuated in severity, worsening with walking and
improving with daily foot soaks and ice. Appellant clarified that he did not stop working on
April 1, 2021. He indicated that he did not have any exposure that could have caused the condition
outside of his federal employment and had no other conditions affecting his foot.
In a May 14, 2021 letter, an employing establishment human resource management (HRM)
specialist, noted that appellant did not stop working on March 30, 2021, but rather was working
with restrictions. The HRM specialist reported that appellant was out of work from April 27
through May 4, 2021 and returned to work on May 5, 2021 with restrictions.
Appellant submitted an additional statement, dated May 23, 2021, providing further
information about his employment duties, including walking 5 to 7 hours each day delivering mail
and parcels, totaling over 20,000 miles during his roughly 15 years of federal employment. He
explained that the employing establishment authorized and issued “ice grippers,” adaptive wear
worn over boots with screws on the bottom to provide traction and minimize slips and falls on icy
sidewalks. Appellant described how, during the two to three weeks of icy conditions, each time
he stepped out of his truck on the right side, his right foot/heel was the first thing that touched the
ground in order to secure good traction with the ice grippers while dismounting. He opined that
“[a]s the screws hit the ice and get traction, some reverse energy or force, I’m sure will go to your
feet and body.” Appellant’s pain began in the bottom of his right foot while wearing the ice
grippers and gradually worsened over time as he walked. On March 30, 2021 the pain was so
severe that he could not finish work and he sought treatment at an urgent care facility. The pain
did not improve when appellant stopped wearing the ice grippers. In the last five years, he had not
participated in any strenuous activities outside of his work, only household chores.
By decision dated May 28, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that his medical condition was
causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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To establish that an injury was sustained in the perf ormance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f 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 identified employment factors. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 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 factor(s). 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.
In his April 26, 2021 report, Dr. Fish noted that appellant began to experience plantar heel
pain as a result of walking on ice with ice scrapers on h is shoes. He diagnosed plantar fascial
fibromatosis and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose [appellant] to this, but this started
while [appellant] was at work.” While Dr. Fish provided an affirmative opinion suggestive of
causal relationship, he did not offer medical rationale sufficient to explain how appellant’s
employment duties resulted in or contributed to his diagnosed condition. Without explaining how

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
G.T., Docket No. 21-0170 (issued September 29, 2021); D.W., Docket No. 20-0674 (issued September 29, 2020);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

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appellant’s employment duties caused or aggravated his condition, Dr. Fish’s report is of limited
probative value and is insufficient to meet appellant’s burden of proof. 11
In a Form CA-17 dated April 26, 2021, Dr. Fish diagnosed plantar fasciitis and described
appellant’s work restrictions. Similarly, in a disability certificate of even date , he described
appellant’s disability status. However, neither the Form CA-17, nor the disability certificate
offered an opinion on causal relationship. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship. 12 For these reasons, Dr. Fish’s remaining evidence is insufficient to
meet appellant’s burden of proof.
Appellant submitted a Form CA-17, dated March 30, 2021, bearing an illegible signature.
The Board has held that reports that are unsigned or bear an illegible signature cannot be
considered probative medical evidence as the author cannot be identified as a physician. 13
Therefore, this report is also of no probative value and is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that his right
plantar fasciitis is causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request fo r reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

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