United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES HALEY VETERANS MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0421
Issued: May 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 13, 2019 appellant, through counsel, filed a timely appeal from a June 27,
2019 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 June 27, 2019 decision, appellant submitted additional evidence to OWCP and
with his/her appeal 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability for the period August 22 through September 3, 2016, causally related to his accepted
January 23, 2015 employment injury.
FACTUAL HISTORY
On January 26, 2015 appellant, then a 40-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 23, 2015 he sustained a disc herniation at L4-5 when lifting
a 500-pound patient from the emergency management services stretcher to a bed while in the
performance of duty. He stopped work on January 26, 2015. OWCP accepted appellant’s claim
for lumbar herniated nucleus pulposus (HNP) at L4-5 and subsequently expanded acceptance of
his claim to include displacement of lumbar intervertebral disc without myelopathy, osseous and
subluxation stenosis of the intervertebral foramina of the lumbar region, and postlaminectomy
syndrome. It paid him wage-loss compensation on the supplemental rolls, effective March 12,
2015 and on the periodic rolls, effective April 5, 2015. On December 7, 2015 appellant underwent
OWCP-approved lumbar surgery and stopped work again.
On March 2, 2016 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. William Dinenberg, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding the status of his accepted
January 23, 2015 employment injury.
In a May 27, 2016 report, Dr. Dinenberg noted his review of the SOAF and discussed
appellant’s history of injury. He recounted appellant’s complaints of constant low back and left
leg pain, as well as lower back and left lower extremity weakness. Dr. Dinenberg provided
examination findings and diagnosed HNP at L4-5, status post-laminectomy discectomy with
residual left lower extremity radiculopathy and moderate to severe spinal stenosis at L4-5, facet
joint hypertrophy, and ligamentum flavum. He reported that appellant continued to have objective
symptoms of his accepted work-related conditions. Dr. Dinenberg opined that appellant was not
physically capable of performing the full duties of a nurse, but could work full-time with
restrictions of lifting, pushing, or pulling up to 20 pounds for three hours per day; squatting,
kneeling, and climbing with up to 10 pounds for one hour per day; twisting and bending/stooping
for one hour per day; and the ability to change position from sitting to standing to walking, as
needed. He completed a work capacity evaluation (Form OWCP-5c), which noted appellant’s
restrictions.
On July 12, 2016 the employing establishment offered appellant an alternate light-duty
assignment as a registered nurse.4 The job offer indicated that the duties were within the
restrictions specified by the second opinion physician, including: no lifting, pushing, or pulling
greater than 20 pounds no more than 3 hours per day, no squatting, kneeling, and climbing greater
than 10 pounds no more than 1 hour per day, twisting, and bending/stooping no more than 1 hour

4
The duties of the position included reporting to the nursing supervisor of the day for interdisciplinary patient
assessment (IPA) or discharge assignments, completing IPA assessment, complete discharge instructions with veteran
and documents in CPRS, provide customer service to all veterans, provide the completed IPA to the nurse assigned to
the patient.

2

per day. It also indicated that appellant would be provided a computer on wheels so that he could
sit or stand as needed.
Appellant accepted the light-duty job offer and on July 20, 2016 returned to full-time,
modified-duty work.
In an August 19, 2016 Form OWCP-5c, Dr. Bharatkumar Patel, a Board-certified
neurologist, noted diagnoses of lumbar disc stenosis. He indicated that appellant was unable to
work his date-of-injury job. Dr. Patel reported that appellant had very serious residuals from his
January 23, 2015 work injuries and explained that the neurovascular residuals were a consequence
of his lumbar injuries. He provided restrictions of sitting intermittently for 30 minutes, along with
other limitations.
In an August 31, 2016 report, Dr. Patel indicated that he had treated appellant for
complaints of chronic lumbar pain radiating to both lower extremities. He reported that
neurological examination revealed positive left leg motor and sensory deficit in the form of
decreased sensation to pinprick in the left L4-5 and L5-S1 distribution and decreased muscle
strength in the left plantar flexion, left ankle dorsiflexion, left knee flexion, and left ankle reflex.
Dr. Patel diagnosed osseous and subluxation stenosis of intervertebral foramina of the lumbar
region, displacement of the lumbar intervertebral disc without myelopathy, lumbar intervertebral
disc disorders with radiculopathy, and muscle wasting and atrophy.
On September 7, 2016 appellant filed a claim for wage-loss compensation (Form CA-7)
for total disability from for the period August 22 through September 3, 2016.
In a September 12, 2016 Form OWCP-5c, Laura Pulido, a nurse practitioner, checked a
box marked “No” indicating that appellant was unable to work.
In a September 12, 2016 development letter, OWCP advised appellant that the evidence
submitted was insufficient to establish total disability from August 22 through September 3, 2016
and requested that he submit additional evidence to establish that he was unable to work during
the period claimed due to his January 23, 2015 employment injury. It provided a questionnaire for
his completion and afforded him 30 days to respond.
In a September 29, 2016 letter, Dr. Patel referred to his previous medical reports regarding
appellant’s objective medical findings and diagnoses. He indicated that appellant’s lumbar spine
injury was chronic and reported that appellant was unable to return to work.
On October 11, 2016 OWCP received appellant’s response to the September 12, 2016
development letter. In a completed questionnaire, appellant recounted that he was immediately
taken off work after the January 23, 2015 date of injury and returned to modified duty on
July 19, 2016. Appellant indicated that he was supposed to be seated doing admissions and
discharges, but in reality he was standing and walking for eight hours per day. He recounted that
his back was sore at the end of the day and that he could not feel his feet. Appellant noted that he
believed that his disability was related to his original injury because he was only able to return to
work for one month. He reported that he did not have any other injuries since the January 23, 2015
work-related injury and that he went to the gym for physical therapy.
In an October 14, 2016 decision, OWCP denied appellant’s claim for recurrence of
disability for the period August 22 through September 3, 2016. It found that he had not submitted
3

sufficient medical evidence from a physician establishing causal relationship between his alleged
recurrence of disability and the accepted employment injury.
Appellant additionally filed form CA-7 claims for compensation for the period
September 14 through October 14, 2016.
Appellant subsequently submitted letters dated October 20 and December 2, 2016 by
Dr. Patel. Dr. Patel indicated that appellant suffered from chronic tenderness, muscle spasm to his
lumbar spine, and neuropathies in his bilateral lower extremities as a consequence of his workrelated injuries that had worsened over time and caused his left calf muscle wasting. Dr. Patel
further explained that due to the length of time since the onset of appellant’s lumbar injuries, the
tenderness, muscle spasm, and neuropathies had moved from an acute stage to a chronic stage. He
reported that appellant’s worsening conditions were “consequential of the lumbar spine injury
[appellant] suffered on 1/23/15.” Dr. Patel continued to treat appellant for his lumbar conditions
and provided reports dated December 7, 2016 and January 11, 2017.
OWCP also received an October 25, 2016 report co-signed by Dr. Sara Vizcay, a family
medicine specialist, who recounted appellant’s complaints of chronic low back pain radiating to
both lower extremities. Upon examination of appellant’s lumbar spine, Dr. Vizcay observed
moderate muscle spasms and moderate pain on palpation on the right gluteal muscles. She
diagnosed lumbar disc displacement with protrusion and neuritis, bilateral lower extremities
radiculopathy, general anxiety secondary to chronic pain and work injuries, and reactive
depression secondary to chronic pain and work injuries. Dr. Vizcay reported that appellant had
neuromuscular conditions that were consequential to his work injuries. She explained that the
neuropathic pain and weakness to appellant’s lower extremities, specifically his left calf muscle
wasting, placed him at a risk to fall, which would be detrimental to appellant and to his workplace.
Dr. Vizcay continued to provide reports regarding appellant’s medical treatment for his lumbar
condition and left muscle wasting calf.
In a November 9, 2016 memorandum of telephone call (Form CA-110), the employing
establishment informed OWCP that appellant had returned to modified-duty work.
On December 22, 2016 appellant, through counsel, requested reconsideration.
By decision dated March 22, 2017, OWCP denied modification of its prior decision.
OWCP subsequently received an August 19, 2016 report, wherein Dr. Patel indicated that
appellant sustained back injuries in 2009, 2013, and most recently on January 23, 2015 when he
transferred a 500-pound patient while at work. He discussed the medical treatment that appellant
had received and indicated that appellant still suffered from lumbar pain, residual left foot drop,
and had developed muscle atrophy in his left calf area. Dr. Patel provided examination findings
and diagnosed chronic lumbalgia with bilateral lumbosacral radicular symptoms, left worse than
right with residual left L4-5 sensory deficit, decreased muscle strength with decreased sensation
especially in the left ankle with left calf atrophy, status-post January 23, 2015 injury and history
of L5-S1 fusion in 2014, L4-5 discectomy in February 2015, and spinal cord stimulator placed in
December 2015 with no help. He reported that “the emergent symptoms of foot drop caused by
the lumbar pathology condition caused by his work injury of January 23, 2015 rendered this patient
temporarily totally disabled at this time.”

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Appellant subsequently submitted medical evidence, including progress reports and
OWCP-5c forms regarding continued treatment for his lumbar conditions. He also underwent
additional diagnostic testing, including a July 14, 2017 electromyography and nerve conduction
velocity (EMG/NCV) study; an August 3, 2017 lumbar spine computed tomography (CT) scan;
and an August 3, 2017 lumbar myelogram.
On March 22, 2018 appellant, through representative, requested reconsideration.
In a June 19, 2018 decision, OWCP denied modification of its prior decision.
OWCP thereafter received a June 19, 2018 handwritten prescription note by Dr. Patel
recommending physical therapy for low back pain and left leg weakness.
Appellant submitted a March 20, 2017 report by Dr. Vizcay who indicated that appellant
was treated for follow-up of his lumbar condition and left muscle wasting calf. Dr. Vizcay noted
lumbar spine examination findings of moderate muscle spasms and moderate pain on palpation.
She diagnosed lumbar disc displacement with protrusion and neuritis, bilateral lower extremities
radiculopathy, general anxiety and secondary to chronic pain and work injuries, and reactive
depression secondary to chronic pain and work injuries.
On June 19, 2019 appellant, through representative, requested reconsideration.
By decision dated June 27, 2019, OWCP denied modification of the June 19, 2018
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.5 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.6
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. The change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.7

5
20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020); J.D., Docket No. 18-1533 (issued
February 27, 2019).
6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).

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An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to employment
injury, and supports that conclusion with medical reasoning.8 Where no such rationale is present,
the medical evidence is of diminished probative value.9
OWCP’s procedures require that in cases where recurrent disability for work is claimed
within 90 days or less from the first return to duty, the claimant is not required to produce the same
evidence as a recurrence claimed long after apparent recovery and return to work.10 Thus, in cases
where a recurrence is claimed within 90 days of the first return to duty, the focus is on disability
rather than causal relationship of the accepted condition(s) to the work injury.11
ANALYSIS
The Board finds that this case is not in posture for decision.
The record reflects that appellant returned to a full-time, modified-duty position on
July 20, 2016. He stopped work again on August 22, 2016 and subsequently filed a Form CA-7
claiming wage-loss compensation for total disability until September 3, 2016. In his October 11,
2016 response to OWCP’s development letter, appellant indicated that when he returned to
modified duty in July 2016 he was supposed to be seated doing admissions and discharges, but in
reality he was standing and walking for eight hours per day. Appellant alleged that his back was
sore at the end of the day and that he could not feel his feet.
The Board finds that, in this case, the factual evidence of record is insufficient to determine
whether appellant sustained a recurrence of disability due to a change to his light-duty position.12
Accordingly, the evidence of record must be fully developed so that it contains accurate
information regarding appellant’s light duty position in order to determine whether he sustained a
recurrence of disability for the period August 22 through September 3, 2016 because of a change
to his limited-duty assignment.13

8

J.D., Docket No. 18-0616 (issued January 11, 2019); C.C., Docket No. 18-0719 (issued November 9, 2018);
Ronald A. Eldridge, 53 ECAB 218 (2001).
9

E.M., Docket No. 19-0251 (issued May 16, 2019); H.T., Docket No. 17-0209 (issued February 8, 2019); Mary A.
Ceglia, Docket No. 04-0113 (issued July 22, 2004).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see also R.W.,
Docket No. 17-0720 (issued May 21, 2018).
11

K.R., Docket No. 19-0413 (issued August 7, 2019).

12

See P.H., Docket No. 20-0039 (issued April 23, 2020); L.F., Docket No. 19-0519 (issued October 24, 2019);
M.S., Docket No. 18-0130 (issued September 17, 2018).
13

See D.M., Docket No. 18-0527 (issued July 29, 2019); J.G., Docket No. 17-0910 (issued August 28, 2017); M.A.,
Docket No. 16-1602 (issued May 22, 2017).

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On September 12, 2016 OWCP requested, in a development letter, that appellant provide
additional evidence regarding his wage-loss compensation claim for total disability. In an
October 11, 2016 response, appellant indicated that he was supposed to be seated doing admissions
and discharges, but in reality he was standing and walking for eight hours per day. He recounted
that his back was sore at the end of the day and that he could not feel his feet. The Board notes,
however, that OWCP did not request that the employing establishment provide information
regarding whether appellant’s limited-duty employment position was modified during the period
in which he has claimed wage-loss compensation. Specifically, the record is unclear regarding
whether appellant’s July 2016 modified-duty nurse position allowed him to sit or stand as needed,
as required by Dr. Dinenberg’s May 27, 2016 second opinion report.
Is it well established that, proceedings under FECA are not adversarial in nature and, while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14 Accurate information regarding whether
appellant’s limited-duty assignment was within his work restrictions is essential to determine
whether he sustained a recurrence of total disability.15 This evidence is of the character normally
obtained from the employing establishment and is more readily accessible to OWCP than to him.16
On remand, OWCP shall request that the employing establishment clarify whether
appellant’s-duty assignment was modified during the period in which he has claimed wage-loss
compensation and whether it was within the medical restrictions provided in Dr. Dinenberg’s
May 27, 2016 report. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018).

15

See K.T., Docket No. 17-0009 (issued October 8, 2019); M.S., supra note 13; Y.R., Docket No. 10-1589 (issued
May 19, 2011).
16

J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the June 27, 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: May 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 14-1618
Issued: November 18, 2014

Case Submitted on the Record

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

JURISDICTION
On August 18, 2014 appellant filed a timely appeal from a nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP) dated May 8, 2014. As the last merit
decision was issued in this case on August 1, 2013, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

20 C.F.R. § 501.3(d) provides in pertinent part that any notice of appeal must be filed within 180 days from the
date of issuance of a decision of OWCP.

FACTUAL HISTORY
On April 20, 2013 appellant, a 55-year-old mail clerk, filed a Form CA-1 claim for
benefits, alleging that he injured his left leg on March 25, 2013 when he stumbled while
descending a flight of stairs. The employing establishment controverted the claim; appellant’s
supervisor questioned why he waited almost a full month to report the incident and seek medical
treatment.
In an April 20, 2013 report, Dr. Stephen Leibham, a specialist in internal medicine, stated
that appellant had injured himself at work on March 25, 2013 when he fell and hit his left knee
against a retaining wall. He diagnosed a sprained left knee and stated that his findings and
diagnosis were consistent with appellant’s account of injury or onset of illness.
In follow-up reports dated April 24 through June 26, 2013, Dr. Robert Cabico, a
specialist in internal medicine and Dr. Leibham’s associate, noted that appellant’s left knee
condition was improving, and essentially reiterated Dr. Leibham’s findings and conclusions.
By letter dated July 1, 2014, OWCP informed appellant that, while it had initially handled
his claim administratively and authorized payment of a limited amount of medical expenses, it
was reopening his claim because his medical bills had exceeded $1,500.00. It noted that the
merits of the claim now needed to be formally considered and advised that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits.
OWCP asked appellant to submit sufficient evidence to establish that he experienced the
employment incident at the time, place and in the manner alleged. It also asked him to submit a
comprehensive medical report from his treating physician describing his symptoms and the
medical reasons for his condition, and an opinion as to whether his claimed condition was
causally related to his federal employment. OWCP requested that appellant submit the
additional evidence within 30 days.
OWCP thereafter received several physical therapy records from U.S. Health Works,
dating from May 2 through June 13, 2013.
By decision dated August 1, 2013, OWCP denied the claim, finding that appellant failed to
submit sufficient evidence to establish that he experienced the employment incident at the time,
place and in the manner alleged, i.e., that he failed to meet his burden to establish fact of injury.
On September 6, 2013 appellant resubmitted follow-up reports dating from May 15, 2013
from Dr. Cabico. He essentially reiterated his previous findings and conclusions and opined that
appellant’s left knee condition had improved. Appellant also submitted several reports from a
physical therapist dating from April 30 through June 13, 2013 which documented his treatment
for his left knee condition.
On February 1, 2014 appellant requested reconsideration.
In an April 24, 2014 report, received by OWCP on May 5, 2014, Dr. Farzaneh
Maghsoudy, a specialist in internal medicine, related that appellant had injured his right ankle
when he stepped on a crack in the sidewalk on April 24, 2014.

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By decision dated May 8, 2014, OWCP denied appellant’s application for review on the
grounds that it neither raised substantive legal questions nor included new and relevant evidence
sufficient to require it to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by constituting relevant and
pertinent evidence not previously considered by OWCP.3 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.4
ANALYSIS
In the present case, OWCP denied appellant’s claim by decision dated August 1, 2013
because he had not established that he sustained an injury on March 25, 2013 at the time, place
and in the manner alleged. The Board finds that OWCP did not abuse its discretion by denying
merit review on May 8, 2014.
Appellant has not shown that OWCP erroneously applied or interpreted a specific point
of law; nor has he advanced a relevant legal argument not previously considered by OWCP. He
did submit new medical evidence including an April 24, 2014 report from Dr. Maghsoudy.
However, the Board has held that the submission of evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.5 The
evidence appellant submitted in connection with his February 1, 2014 reconsideration request is
not pertinent to the issue on appeal; i.e., whether he established that he experienced the
employment incident at the time, place and in the manner alleged. Dr. Maghsoudy’s report
discusses a new injury which appellant allegedly sustained on April 24, 2014 is therefore not
relevant to the issue presented in the instant case.
The reports from Dr. Cabico which OWCP received in September 2013 merely reiterate
findings and conclusions he made in his previous reports. Appellant essentially resubmitted
reports which were previously submitted; these are therefore cumulative and duplicative.6 In
addition, the Board notes that he submitted several reports from a physical therapist, pertaining
to treatment. These reports, however, do not constitute medical evidence under Section 8101(2).
Because healthcare providers such as nurses, acupuncturists, physicians assistants and physical

3

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

4

Howard A. Williams, 45 ECAB 853 (1994).

5

See David J. McDonald, 50 ECAB 185 (1998).

6

See Patricia G. Aiken, 57 ECAB 441 (2006).

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therapists are not considered “physicians” under FECA, their reports and opinions do not
constitute competent medical evidence.7
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
OWCP. OWCP did not abuse its discretion in refusing to reopen appellant’s claim for a review
on the merits in its May 8, 2014 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2014 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: November 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

4


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

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Appearances:
Meletios T. Golematis, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1907
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On August 14, 2006 appellant filed a timely appeal from a July 10, 2006 decision of the
Office of Workers’ Compensation Programs affirming the denial of her claim for a recurrence of
total disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
from December 31, 2003 to December 19, 2004 causally related to the accepted cervical,
thoracic and lumbar strains, a contusion of the left lower leg and a posterior labrum tear of the
right shoulder.
FACTUAL HISTORY
The Office accepted that on December 15, 2003 appellant, then a 27-year-old casual
letter carrier, sustained cervical, thoracic and lumbar strains and a lower left leg contusion when
she slipped and fell down two icy steps in the performance of duty. On December 8, 2004 the

Office also accepted a tear of the posterior labrum of the right shoulder. The Office also
approved right shoulder arthroscopy. Appellant returned to work on December 16, 2003 in
limited-duty status.
She was terminated from the employing establishment effective
December 31, 2003 due to “failure to maintain regular attendance.”1
On October 4, 2004 appellant filed a claim for a recurrence of disability commencing
December 31, 2003. She also claimed wage-loss compensation from December 31, 2003 to
December 19, 2004. In an October 28, 2004 letter, the Office advised appellant of the additional
medical and factual evidence needed to establish her claim for recurrence of disability. The
Office emphasized the need to submit a rationalized report from her attending physician
explaining how and why the accepted injuries would totally disable her for work for the claimed
period.
In a November 22, 2004 letter, appellant stated that she attended community college for
part of the January to May 2004 semester and again from July to August 2004. She took 13
credit hours in the Fall 2004 semester. Appellant noted that she could drive, take her children to
dinner and go to the library and a computer lab to do web design assignments. She submitted
medical evidence.
In a December 16, 2003 report, Dr. Anthony D’Silva, an attending Board-certified
internist, diagnosed cervical and thoracolumbar strains, a left knee contusion and a strain and
contusion of the left leg. In reports from December 17, 2003 to January 13, 2004, he noted
appellant’s continued complaints of back pain with paraspinal spasms. Dr. D’Silva found that
appellant was able to perform light-duty work with restrictions against lifting, carrying, pulling
or pushing over 10 pounds, no reaching above shoulder level, no climbing, no awkward or
repetitive motions of the back.
Dr. M. David Jackson, an attending Board-certified physiatrist, provided reports from
January 22 to December 15, 2004 diagnosing a right shoulder strain, lumbosacral, thoracic and
cervical strains caused by the December 15, 2003 slip and fall. He noted paraspinal muscle
spasms in the shoulder girdle, neck, thoracic and lumbar regions.2 Dr. Jackson treated
appellant’s symptoms with medication and epidural injections. He held appellant off work from
August 18 to September 27, 2004 due to back, neck and right shoulder pain. Dr. Jackson found
that the December 15, 2003 injuries permanently disabled appellant for work as a letter carrier.
He noted that appellant was enrolled in classes during the Fall 2004 semester, recommended that
she have “elevator access when at school” and supported her application for a handicapped
parking permit. In a November 15, 2004 report, Dr. Jackson remarked that appellant was
“overly obsessed with pain complaints” and “almost any issues within her body.”
1

In a January 11, 2005 letter, the employing establishment stated that appellant “was employed as a casual
(temporary) employee who[se] term ended on December 31, 2003. [Appellant] entered on duty November 17, 2003
as a casual letter carrier.
2

A July 1, 2004 lumbar magnetic resonance imaging (MRI) scan showed low volume facet effusions from L1-4
and a very minimal posterior disc bulge at L4-5. An August 9, 2004 cervical MRI scan showed small annular tears
at C5-6 and C6-7 without frank herniation, stenosis or cord compression. An August 24, 2004 MRI scan of the right
shoulder showed a posterior labral tear. A November 3, 2004 MRI scan showed frayed cartilage at the patellar apex
in the left knee with subtle chondromalacia.

2

The Office requested that Dr. Jackson submit a supplemental report stating whether the
accepted injuries disabled appellant for work from December 31, 2003 to December 19, 2004. In
a December 15, 2004 letter, Dr. Jackson stated that he held appellant off work from April 13
through July 2004 “primarily … for her inability to attend classes that she was enrolled in, but
also referred to work.” He noted that appellant worked in the private sector during June and
July 2004 but opined that she should not have done so.
On December 20, 2004 Dr. Jeffrey Michaelson, an attending Board-certified orthopedic
surgeon, performed right shoulder arthroscopy with limited debridement of a posterior labral tear
and a subacromial bursectomy. He held appellant off work through January 31, 2005 and
released her to light duty on February 1, 2005.3
By decision dated January 11, 2005, the Office denied appellant’s claim for a recurrence
of total disability for the period December 31, 2003 to December 19, 2004 on the grounds that
the medical evidence was insufficient to establish that she was totally disabled for that period.
The Office noted that appellant’s private sector employment in June and July 2004 demonstrated
that she was not totally disabled for work.
Appellant requested an oral hearing and submitted additional evidence.4
Dr. Jackson submitted periodic reports from January 14 to November 22, 2005 noting a
lack of objective findings to explain appellant’s continued pain symptoms. He found appellant
temporarily disabled for work from April 11, 2005 onward.
In a February 19, 2005 affidavit of earnings and employment, appellant stated that she
worked for Forge Industrial Staffing from June 27 to August 1, 2004, “pushing a button and
sitting up plastic bottles.” She earned $9.00 an hour.
The Office obtained a second opinion report from Dr. Michael J. Geoghagan, an
orthopedic surgeon, who submitted a March 22, 2005 report opining that the accepted injuries
had resolved completely. He diagnosed status post posterior labrum tear without instability.
Dr. Geoghagan found appellant capable of working as a letter carrier.
In an August 8, 2005 report, Dr. Dennis Bandemer, an attending osteopath associated
with Dr. Jackson, noted that appellant had started a home-based clothing and accessories
business.
The Office determined that there was a conflict of medical opinion between Dr. Jackson,
for appellant and Dr. Geoghagan, for the government, regarding the duration and extent of
appellant’s injury-related disability. To resolve this conflict, the Office appointed Dr. Charles F.
Xeller, a Board-certified orthopedic surgeon, as an impartial medical examiner.

3

Appellant received wage-loss compensation for the period December 20, 2004 to January 21, 2005.

4

Appellant initially requested the hearing on January 27, 2005. The Office did not take further action on
appellant’s request until after obtaining the second opinion and impartial examination reports.

3

In October 6 and 26, 2005 reports, Dr. Xeller provided a history of injury and treatment
and reviewed the medical record. On examination, he found restricted lumbar and right shoulder
motion. Dr. Xeller diagnosed “[c]ervical spine, low back and left knee strains, resolved,” and
“[s]tatus post right shoulder arthroscopy, for labral tear.” He opined that appellant could return
to full-time employment with permanent restrictions against overhead lifting.
An oral hearing was held on April 24, 2006. At the hearing, appellant asserted that she
remained totally disabled for work due to the accepted injuries. After the hearing, she submitted
January 25 and March 29, 2006 reports from Dr. Jackson and Dr. David Baker, an osteopath
associated with Dr. Jackson, regarding appellant’s chronic right shoulder pain. Neither report
addressed the claimed period of recurrence of disability.
By decision dated and finalized July 10, 2006, an Office hearing representative affirmed
the January 11, 2005 decision finding that appellant did not establish that she sustained a
recurrence of total disability from December 31, 2003 to December 19, 2004. The hearing
representative found that appellant submitted insufficient rationalized medical evidence
substantiating total disability for the claimed period.
LEGAL PRECEDENT
As used in the Federal Employees’ Compensation Act,5 the term “disability” means
incapacity, because of an employment injury, to earn the wages that the employee was receiving
at the time of injury.6 A recurrence of disability is defined by Office regulations as an inability
to work, caused by a spontaneous change in a medical condition resulting from a previous injury
or illness without an intervening injury or new exposure to the work factors that caused the
original injury or illness.7 If the disability results from new exposure to work factors, the legal
chain of causation from the accepted injury is broken and an appropriate new claim should be
filed.8
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.9 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate
5

5 U.S.C. §§ 8101-8193.

6

Prince E. Wallace, 52 ECAB 357 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); Donald T.
Pippin, 54 ECAB 631 (2003).
8

Id.

9

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

4

factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.10 An award of
compensation may not be made on the basis of surmise, conjecture, speculation or on appellant’s
unsupported belief of causal relation.11
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such an
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and that such a relationship must be supported
with affirmative evidence, explained by medical rationale and be based on a complete and
accurate medical and factual background of the claimant.12 Medical conclusions unsupported by
medical rationale are of diminished probative value and are insufficient to establish causal
relation.13
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify her disability and
entitlement to compensation.14
ANALYSIS
The Office accepted that, on December 15, 2003, appellant sustained cervical, thoracic
and lumbar sprains, a lower left leg contusion and a glenoid labrum tear in the right
shoulder requiring arthroscopic repair on December 20, 2004. She returned to work in light-duty
status on December 16, 2003 and was terminated from the employing establishment on
December 31, 2003. Appellant then claimed a recurrence of disability beginning December 31,
2003 and wage-loss compensation through December 19, 2004, the day prior to her shoulder
surgery. She has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed total disability from December 31,
2003 to December 19, 2004 and the accepted injuries.15
In support of her claim, appellant submitted reports from several physicians addressing
her ability to work during the claimed period. In reports from December 17, 2003 to January 13,
2004, Dr. D’Silva, an attending Board-certified internist, opined that appellant was able to
perform light-duty work. Dr. Jackson, an attending Board-certified physiatrist, stated that he
10

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

11

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

12

Conard Hightower, 54 ECAB 796 (2003).

13

Albert C. Brown, supra note 9.

14

Amelia S. Jefferson, 57 ECAB __ (Docket No. 04-568, issued October 26, 2005); Fereidoon Kharabi, 52
ECAB 291 (2001).
15

Alfredo Rodriguez, 47 ECAB 437 (1996).

5

held appellant off work from April 13 through July 2004 primarily because she was unable to
attend academic classes, but that in hindsight, these restrictions would have also applied to work.
The Board notes that appellant successfully held a private-sector job from June 27 to August 1,
2004, overlapping the period in which Dr. Jackson found her disabled for work. Dr. Jackson also
held appellant off work from August 18 to September 27, 2004 due to back, neck and shoulder
pain. However, statements about appellant’s pain, not corroborated by objective findings of
disability, do not constitute a basis for payment of compensation.16
Appellant submitted evidence regarding her activities during the claimed recurrence of
total disability. In a November 22, 2004 letter, appellant described her ability to attend
community college classes part time from January to May 2004 and in July and August 2004,
drive to the computer lab or library and complete web design assignments. In a February 19,
2005 affidavit, she noted working from June 27 to August 1, 2004 for a private sector company.
Appellant’s own statements indicate that she was not totally disabled for work from
December 31, 2003 to December 19, 2004.
None of appellant’s physicians provided a rationalized medical opinion finding appellant
disabled for work for any portion of the claimed period from December 31, 2003 to
December 19, 2004 due to the accepted injuries. Therefore, the medical evidence submitted in
support of her claim for recurrence of disability for that period is insufficient to meet appellant’s
burden of proof.17 The Board notes that the Office advised appellant by October 28, 2004 letter,
of the necessity of submitting rationalized medical evidence explaining how and why the
accepted conditions would totally disable her for work for the claimed period. However,
appellant did not submit such evidence.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of total
disability from December 31, 2003 to December 19, 2004.

16

Paul D. Weiss, 36 ECAB 720 (1985); John L. Clark, 32 ECAB 1618 (1981).

17

Alfredo Rodriguez, supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 10, 2006 is affirmed.
Issued: April 5, 2007
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF PRISONS, FEDERAL
)
CORRECTIONAL INSTITUTE, Sandstone, MN, )
Employer
)
__________________________________________ )
D.T., Appellant

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

Docket No. 20-1666
Issued: September 28, 2021

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 September 21, 2020 appellant filed a timely appeal from an August 19, 2020 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

1

5 U.S.C. § 8101 et seq.

2
The Board notes that OWCP received additional evidence following the August 19, 2020 decision. 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 his burden of proof to establish greater than 3
percent permanent impairment of the right lower extremity and 11 percent permanent impairment
of the left lower extremity for which he previously received schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On August 17, 1995 appellant, then a 46-year-old cook/foreman, filed a traumatic injury
claim (Form CA-1) alleging that on December 9, 1994, he sustained an injury to his back as he
knelt down to lift steel elevator doors while in the performance of duty. OWCP accepted the claim
for L5-S1 herniated disc, fracture nonunion at L3-4, pelvic and bilateral ankle sprains, and
psychogenic pain disorder.4
OWCP developed the claim and, by decision dated December 30, 1996, it granted appellant
a schedule award for three percent permanent impairment of the right lower extremity. The award
ran for 8.64 weeks for the period September 13 to November 12, 1995.5 On August 18, 1999
OWCP granted appellant a schedule award for 11 percent permanent impairment of the left lower
extremity. The award ran for 31.68 weeks for the period from July 15, 1999 to February 21, 2000. 6
On April 17, 2017 OWCP referred appellant to Dr. Anthony C. Nwakama, Board-certified
in orthopedic surgery and sports medicine, for a second opinion examination to determine the
extent of any employment-related permanent impairment. It advised him that he should rate
appellant’s impairment using The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
(The Guides Newsletter) (July/August 2009), a supplemental publication of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).7

3

Docket No. 97-1861 (issued April 8, 1999); Docket No. 02-1628 (issued January 27, 2003); Docket No. 07-1374
(issued November 23, 2007); Docket No. 06-2009 (issued March 15, 2007), petition for recon. denied, Docket No.
06-2009 (issued July 15, 2008).
4
Appellant retired from the employing establishment on December 3, 1998 and underwent surgical procedures in
1999, 2000, and 2002.
5

On September 6, 2000 OWCP amended the award to reflect the correct pay rate.

6

Appellant subsequently filed a claim for compensation (Form CA-7) for an increased schedule award. By decision
dated August 23, 2006, OWCP denied appellant’s claim for an increased schedule award. By decision dated
February 2, 2007, an OWCP hearing representative affirmed the August 23, 2006 decision. In a November 23, 2007
decision, the Board found that appellant had not established that he had more than 11 percent permanent impairment
of his left lower extremity. Docket No. 07-1374 (issued November 23, 2007).
7

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

2

In a July 12, 2017 report, Dr. Nwakama noted appellant’s history of injury and medical
treatment. He utilized the A.M.A., Guides, referenced the lumbar spine regional grid (Table 17-4)
and opined that appellant had 15 percent lower extremity permanent impairment.
On November 6, 2017 appellant filed a Form CA-7 for an increased schedule award.
On June 29, 2018 OWCP prepared a statement of accepted facts (SOAF) and referred
appellant’s case record and Dr. Nwakama’s July 12, 2017 report to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon serving as the DMA, to determine the extent of any employmentrelated permanent impairment. It advised him that he should rate appellant’s impairment using
The Guides Newsletter.
In a July 2, 2018 report, the DMA explained that Dr. Nwakama determined appellant’s
permanent impairment using the lumbar spine regional grid (Table 17-4) in the A.M.A., Guides;
however, this was not allowed because FECA did not allow a schedule award for the spine. The
DMA explained that a diagnosed injury originating in the spine could be considered to the extent
that it resulted in permanent impairment to the extremities, generally manifested as spinal nerve
impairment, and The Guides Newsletter should be utilized. He advised that Dr. Nwakama’s
opinion could not be considered probative and recommended that Dr. Nwakama be contacted and
offered the opportunity to submit a corrected supplemental report addressing spinal nerve
impairment using The Guides Newsletter. The DMA also recommended that if Dr. Nwakama was
unable to submit a supplemental report, then a second opinion was recommended. He also
requested copies of the prior DMA reports so that any overlapping impairments could be identified.
In a letter dated July 11, 2018, OWCP notified appellant that he should provide a copy of
the July 2, 2008 DMA report to Dr. Nwakama for an updated impairment rating. The physician
did not provide a new report.
On October 30, 2018 OWCP referred appellant to Dr. John R. Ayres, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the extent of any employmentrelated permanent impairment.
In a January 9, 2019 report,8 Dr. Ayres noted appellant’s history of injury, medical
treatment, and physical examination findings. He utilized the A.M.A., Guides and referred to
Chapter 17, subsection 17.2, pages 561-76. Dr. Ayres opined that appellant had a lower extremity
impairment of 15 percent. He explained that the cause of numbness in appellant’s lateral thigh,
lateral knee, lateral leg, lateral ankle, and the dorsum of his feet bilateral was either lumbosacral
radiculopathy and work related, or peripheral neuropathy, which was not work related. Dr. Ayres
opined that the only way to determine whether the conditions were work related was by an
electromyography/nerve conduction velocity (EMG/NCV) study, and this study was also needed
to determine any impairment rating for gait.
A May 9, 2019 EMG report interpreted by Dr. Joel I. Gedan, a Board-certified neurologist,
revealed chronic bilateral polyradiculopathies in both lower extremities, evidence of chronic
neurogenic changes in the right L5-S1 nerve root and the left L4 and L5 greater than S1 nerve
roots, and no fibrillation potentials to indicate more recent ongoing denervation. He also noted
8

The report was dated January 9, 2016, but that appears to have been a typographical error.

3

that there was no electrical evidence of a superimposed polyneuropathy in the lower extremities.
Dr. Gedan explained that the electrical findings were seen with lumbar spinal stenosis and noted
that appellant had a history of five lumbar spine surgeries.
In a June 3, 2019 report, Dr. Edward G. Santos, a Board-certified orthopedic surgeon,
noted that appellant was referred by OWCP for EMG/NCV studies, which revealed chronic L5
and S1 radiculopathy with no active denervation. He found cervicalgia, low back pain, paresthesia
of the foot and hand, and S/P lumbar spinal fusion.
In an August 29, 2019 report, Dr. Ayres reviewed the May 9, 2019 EMG/NCV study and
provided an addendum. He opined that the additional study did not impact his impairment rating
and repeated his opinion that appellant had a lower extremity permanent impairment of 15 percent.
Dr. Ayres opined that the cause of numbness in appellant’s lateral thigh, lateral knee, lateral leg,
lateral ankle, and the dorsum of his feet bilaterally was from lumbosacral radiculopathy, which
was work related. He further opined that any impairment of gait would, therefore, bundle into the
diagnosis for lumbar radiculopathy for which he had calculated the impairment rating under Table
17-2 of the A.M.A., Guides.9
In an October 6, 2019 report, the DMA noted that Dr. Ayres’ report could not be considered
as probative because FECA did not allow a schedule award for the spine. He explained that
permanent impairment ratings due to the spinal conditions should be determined using The Guides
Newsletter.
In a letter dated November 7, 2019, addressed to Dr. Ayres, OWCP requested his opinion
utilizing The Guides Newsletter.
In a January 20, 2020 report, Dr. Ayres utilized the A.M.A., Guides and referred to Table
16-12, pages 534-35, for the peripheral nerve. He related that appellant had poor balance, but no
weakness in either lower extremity with 5/5 strength throughout the right and left lower
extremities. Dr. Ayres found mild sensory deficits in the distribution of the L5 and S1 dermatomes
on the right and L4, L5, S1 dermatomes on the left. He opined that appellant had 10 percent
permanent impairment of the right and left lower extremities.
On February 27, 2020 OWCP requested that the DMA, Dr. Katz, review the record and
provide a supplemental opinion regarding appellant’s permanent impairment of the bilateral lower
extremities.
In a March 5, 2020 report, the DMA noted that he had reviewed Dr. Ayres’ January 20,
2020 report and explained that it was not probative because spinal nerve impairment should be
rated using The Guides Newsletter. He related that Dr. Ayres determined appellant’s permanent
impairment using Table 16-12, peripheral nerve impairment, of the A.M.A., Guides, which was
not acceptable. The DMA noted Dr. Ayres’ “mild sensory deficits” findings in the distribution of
the L5 and S1 dermatomes on the right and L4, L5, S1 dermatomes on the left. He also noted that
Dr. Ayres found motor examination to be 5/5 throughout both lower extremities. The DMA
referred to The Guides Newsletter, Proposed Table 2, Spinal Nerve Impairment Lower Extremity
Impairments, for mild sensory deficits L5, S1 on the right and L4, L5, S1 on the left.
9

A.M.A., Guides 561-76.

4

The DMA explained that appellant had a mild sensory deficit at L5 which had a default
value in class of diagnosis (CDX) 1 of 1 percent, a grade modifier for functional history (GMFH)
of 2 and a grade modifier for clinical studies (GMCS) of 1, which resulted in a net adjustment of
2 from the default value, and equaled a Class 1, grade E impairment rating of 2 percent. Regarding
the S1 sensory deficit, he explained that CDX was 1, GMFH was 1 and GMCS was 1, therefore,
the net adjustment was 2, which equaled CDX 1, grade E impairment rating of one percent. He
concluded that appellant had three percent permanent impairment of the right lower extremity.
Regarding the left lower extremity, the DMA concluded that appellant had five percent
permanent impairment of the left lower extremity. He explained that appellant had a mild sensory
deficit at L4 which had a default value CDX 1 of 1 percent, a GMFH of 1 and a GMCS of 1, which
resulted in a net adjustment of 2 from the default value, and equaled a CDX 1, grade E impairment
rating of two percent. The DMA further explained that appellant had a mild sensory deficit at L5
which had a default value in CDX 1 of 1 percent, a GMFH of 2 and a GMCS of 1, which resulted
in a net adjustment of 2 from the default value, and equaled a Class 1, grade E impairment ratin g
of two percent. Regarding the S1 sensory deficit, he explained that CDX was 1, GMFH was 1 and
GMCS was 1, therefore, the net adjustment was 2, which equaled CDX 1, grade E impairment
rating of one percent.
The DMA concluded that appellant’s three percent permanent impairment of the right
lower extremity and five percent permanent impairment of the left lower extremity did not exceed
the prior award and no additional award was due. He advised that appellant reached maximum
medical improvement (MMI) on January 9, 2019, the date of Dr. Ayres’ examination.
On April 3, 2020 OWCP received appellant’s request for reconsideration. Appellant
argued that Dr. Ayres’ opinion that he had 10 percent left lower extremity impairment was correct.
He indicated that the DMA found fault with every doctor’s opinion and that his physicians found
that he had a broad-based gait, which was a stand-alone impairment.
By decision dated June 24, 2020, OWCP denied modification of the March 10, 2020
decision.
On August 3, 2020 appellant requested reconsideration. He repeated his argument that his
gait was a standalone impairment. Appellant indicated that the DMA misconstrued that 15 percent
for the gait abnormality was a whole person impairment. He also argued that he was entitled to
additional awards for his various surgical procedures. Appellant indicated that he believed his
award should be 15 percent for his gait, 10 percent left lower extremity, and 10 or 15 percent right
lower extremity.
By decision dated August 19, 2020, OWCP denied appellant’s claim for an increased
schedule award.

5

LEGAL PRECEDENT
The schedule award provisions of FECA,10 and its implementing federal regulations,11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.12 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 13
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF): Contemporary Model of Disablement.14 Under the sixth edition, the evaluator
identifies the impairment CDX, which is then adjusted by grade modifiers based on functional
history, physical examination and clinical studies. 15 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).16 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.17
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 18 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 19 The sixth edition of the A.M.A., Guides provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was
10

Supra note 1.

11

20 C.F.R. § 10.404.

12

For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
13

See T.K., Docket No. 19-1222 (issued December 2, 2019); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
14

A.M.A., Guides (6th ed. 2009), p.3, section 1.3a ICF.

15

Id. at 494-531.

16

Id. 521.

17

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

18

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019).

19

Supra note 12 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3)
(March 2017).

6

designed for situations where a particular jurisdiction, such as FECA, mandated ratings for
extremities and precluded ratings for the spine. The FECA-approved methodology is premised on
evidence of radiculopathy affecting the upper and/or lower extremities. Proposed Table 2 of The
Guides Newsletter provides that the maximum permanent impairment for impairment associated
with a single nerve is 13 percent. The appropriate tables for rating spinal nerve extremity
impairment are incorporated in OWCP’s procedures.20
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 3
percent permanent impairment of the right lower extremity and 11 percent permanent impairment
of the left lower extremity for which he previously received schedule award compensation.
OWCP referred appellant to Dr. Nwakama and then to Dr. Ayres for second opinion
examinations to evaluate the extent of any permanent impairment of his lower extremities resulting
from his accepted L5-S1 herniated disc and nonunion fracture at L3-4 in accordance with The
Guides Newsletter. However, both Dr. Nwakama and Dr. Ayres failed to utilize The Guides
Newsletter in rendering evaluation of appellant’s permanent impairment.21 The proper mechanism
for rating impairments of the upper or lower extremities caused by a spinal injury is provided in
section 3.700 of OWCP’s procedures, which references proposed Table 2 from The Guides
Newsletter.22
On March 5, 2020 the DMA reviewed Dr. Ayres’ report and explained why it did not
comport with the A.M.A., Guides, as noted above. He advised that he was, however, able to utilize
Dr. Ayres’ findings to rate appellant’s permanent impairment. The DMA noted that appellant had
no permanent impairment due to motor loss of the lower extremities as Dr. Ayres reported 5/5
strength of each lower extremity and no motor weakness.
The DMA also found that he could rate appellant’s sensory loss from Dr. Ayres’ findings.
He determined that appellant had three percent permanent impairment of the right lower extremity,
due to mild sensory deficit at L5 and S1, and five percent permanent impairment of the left lower
extremity, due to sensory deficits at L4, L5, and S1, according to the net adjustment formula . 23
The Board has reviewed the DMA’s rating and finds that he properly applied the net adjustment
formula to the findings from Dr. Ayres’ report, pursuant to The Guides Newsletter. The DMA’s
report does not support that appellant had greater than 3 percent permanent impairment of the right
lower extremity and 11 percent permanent impairment of the left lower extremity. The record

20

Supra note 12 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

21
See D.L., Docket No. 20-0059 (issued July 8, 2020); see A.W., Docket No. 17-1350 (issued December 12, 2018);
M.M., Docket No. 17-0197 (issued May 1, 2018).
22

Supra note 20; see T.K., Docket No. 19-1222 (issued December 2, 2019); see also C.K., Docket No. 16-1294
(issued January 13, 2017).
23

See supra note 16.

7

contains no medical evidence in accordance with The Guides Newsletter demonstrating a greater
percentage impairment of the right or left lower extremity.24
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 3
percent permanent impairment of the right lower extremity and 11 percent permanent impairment
of the left lower extremity for which he previously received schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 28, 2021
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

24

See E.G., Docket No. 19-1081 (issued September 24, 2020); T.K., Docket No. 19-1222 (issued December 2,
2019); C.S., Docket No. 18-0920 (issued September 23, 2019).

8


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1833
Issued: October 29, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 15, 2016 appellant filed a timely appeal from an April 8, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish lumbar or upper
extremity conditions causally related to factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On August 21, 2011 appellant, then a 42-year-old markup clerk, filed an occupational
disease claim (Form CA-2) alleging that he developed various medical conditions as a result of his
daily, repetitive employment duties.3 He noted that he first became aware of his claimed
conditions and realized their relationship to his federal employment on November 30, 2009.
Appellant stopped work on March 2, 2011. He separated from federal employment effective
March 4, 2011.
In a letter dated February 8, 2012, a health and resource manager for the employing
establishment controverted appellant’s claim. He contended that appellant did not provide a
detailed statement explaining the nature or relationship between the medical conditions and his
employment and did not submit any medical documentation to establish that he sustained a
diagnosed condition causally related to factors of his employment. The health and resource
manager also noted that appellant had been separated from the employing establishment since
March 4, 2011 and had only worked a total of five days over the past five years.
By development letter dated March 14, 2012, OWCP advised appellant that the evidence
submitted was insufficient to establish his claim. It requested that he respond to an attached
questionnaire in order to substantiate the factual elements of his claim and provide a detailed
medical report, which explained how he sustained the diagnosed medical conditions as a result of
his federal employment. Appellant was afforded 30 days to submit the additional information.
Appellant responded to OWCP’s development letter in a statement dated March 21, 2012.
He explained that he no longer participated in any recreational activities due to his injuries.
Appellant related that he watched television in a recliner and socialized on the phone through
hands-free or speaker methods because holding his phone irritated his wrist and fingers.
By decision dated May 2, 2012, OWCP denied appellant’s claim. It accepted his federal
employment duties as a markup clerk, but found that the medical evidence of record was
insufficient to establish that he sustained a diagnosed condition as a result of his accepted
employment duties.
By letter dated May 31, 2012, received by OWCP on June 6, 2012, appellant requested a
review of the written record by an OWCP hearing representative.
Appellant submitted medical reports dated November 30, 2009 and May 21, 2012 from
Dr. John W. Ellis, Board-certified in environmental and family medicine. Dr. Ellis recounted that
appellant began employment as a markup clerk in October 1999 and noted that the employment
2

Order Remanding Case, Docket No. 13-1111 (issued July 15, 2013).

3

The present claim was assigned OWCP File No. xxxxxx723. Appellant also has a claim under OWCP File No.
xxxxxx293, in which OWCP accepted that on June 19, 2004 appellant sustained a lumbar sprain as a result of cleaning
up and shutting down of operational duties.

2

duties required repetitive work activities, including reaching out, bending, twisting, rotating,
squatting, and walking. He noted appellant’s history regarding his accepted back injury and
provided a description of his medical records. Appellant had related that he began to seek medical
treatment for his back symptoms in 2001 after he noticed pain in his back, particularly at the end
of each day and the end of each week. He had also related a June 19, 2004 work event when he
closed the postcon by himself and experienced significant back pain the next morning, which
continued for several weeks. Dr. Ellis noted appellant’s current complaints of low back pain at
the iliolumbar and sacroiliac levels and shooting pain down the left leg into the lateral aspect of
the foot. He diagnosed muscle tendon unit strain of the back, deranged discs in the back at L4 and
S1, traumatic arthritis in the back, bilateral L5 spinal nerve root impairment, bilateral S1 spinal
nerve root impairment due to his previously accepted employment injury. Dr. Ellis explained that
appellant’s work, which required lifting, bending, and twisting, caused multiple strains of the
muscles and tendons in his back and iliolumbar and sacroiliac ligaments. These were subclinical
microstrains that caused acute injuries and straining of his iliolumbar and sacroiliac ligaments and
injuries to the discs in his back. Once the discs and the annular rings and fibers around the discs
were injured, they continued to tear and fibers would spread, causing herniation of the discs with
subsequent impingement of the L5 and S1 spinal nerve root, subsequently now down both legs.
Dr. Ellis reported that “but for” the work at the employing establishment on June 19, 2004 and
subsequent work at the employing establishment, appellant would not have had the deranged discs
and the L5 and S1 spinal nerve root impingement down both legs. He further noted that appellant’s
sedentary work also caused aggravation of appellant’s back symptoms. Dr. Ellis explained that
sitting at a 90 degree angle put greater pressure on the discs anteriorly, which put more pressure
on the posterior parts of the already injured discs that occurred on June 19, 2004, causing more
impairment of the spinal nerves down his legs.
Regarding appellant’s upper extremity conditions, Dr. Ellis reported his physical
examination findings. He also explained that repetitive work of gripping, twisting, and moving
his hands and elbows frequently caused multiple microstrains and tears of the tendons in his elbows
and wrists. These tendons then became hypertrophied and began to impinge upon the ulnar nerve,
which is cubital tunnel syndrome, the median nerve at the wrists, which is carpal tunnel syndrome,
and the ulnar nerve at the wrists, which is Guyon’s canal syndrome.
Dr. Ellis opined that appellant’s injuries, impairments, and disabilities were caused by
factors of his employment. He concluded that appellant had been temporarily totally disabled as
a result of the injury from July 9, 2004 until January 29, 2006 and was disabled again beginning
February 5, 2007.4
By decision dated September 24, 2012, an OWCP hearing representative affirmed
OWCP’s May 2, 2012 denial decision. She found that Dr. Ellis’ opinion, as stated in his May 21,
2012 report, was speculative because Dr. Ellis’ diagnoses and opinion on causal relationship was
provided years after appellant had stopped work in 2007. The hearing representative determined

4

Appellant also submitted various documents relating to his claim under OWCP File No. xxxxxx293, which
included various diagnostic examination reports dated July 16 and December 7, 2004 and a statement dated
August 23, 2011.

3

that Dr. Ellis’ medical reports were of insufficient probative value to establish that appellant
sustained a medical condition in connection with his federal employment.
Appellant subsequently appealed to the Board. By order dated July 15, 2013, the Board
remanded the case for OWCP to administratively combine File Nos. xxxxxx723 and xxxxxx293
followed by an appropriate decision based on the entire case record.5
OWCP subsequently combined File Nos. xxxxxx293 and xxxxxx723, with the latter
serving as the master file.
By de novo decision dated November 21, 2013, OWCP again denied appellant’s claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed medical
conditions were causally related to his federal employment.
On November 5, 2014 appellant requested reconsideration. In a statement dated
October 27, 2014, he indicated that he was attaching new medical evidence from Dr. Ellis.
Appellant asserted that his previous recurrence of disability claim under OWCP File No.
xxxxxx293 should not be considered a factor in the determination of his current case. He explained
that, after that decision, he immediately sought out a new treating physician with the credentials
and expertise to clearly explain the cause of his injuries. Appellant noted that after consulting with
his treating physician he filed this present occupational disease claim. He contended that OWCP’s
hearing representative did not base her decision on any deficiency within the medical reports, but
on the dates of the medical documentation to bolster her opinion that the medical reports were
speculative.
Appellant submitted an August 27, 2014 report from Dr. Ellis, which reviewed appellant’s
medical records and provided a history of injury. Dr. Ellis related that in 2003 appellant began to
experience numbness, tingling, and decreased strength in his hands. He noted that although
appellant’s symptoms improved when he was off work from July 9, 2004 to January 29, 2006 and
beginning February 14, 2007, his symptoms had not gone away. Dr. Ellis related that appellant
continued to experience a lot of tightness between his shoulders, especially his low back iliolumbar
and sacroiliac ligaments, pain in his buttocks that radiated to the back of his thighs, weakness in
both legs, and pain, numbness, and tingling in his wrists, hands, and elbows.
Dr. Ellis reported examination findings similar to his previous examinations. He diagnosed
muscle tendon unit strain of the back, deranged discs in the back at L4 and S1, bilateral L5 spinal
nerve root impairment, and bilateral S1 spinal nerve root impairment due to OWCP File No.
xxxxxx293. Dr. Ellis also diagnosed bilateral tendinitis of the wrists, bilateral carpal tunnel
syndrome with median nerve impingement, bilateral Guyon’s canal syndrome with ulnar nerve
impingement, bilateral medial epicondylitis, bilateral cubital tunnel syndrome, and resolved
bilateral radial tunnel syndrome. He reiterated that appellant’s injuries, impairments, and
disabilities arose out of and in the course of his employment and that employment factors and work
duties contributed to appellant’s said injuries, disabilities, and impairments as set forth in this
report. Dr. Ellis repeated his detailed explanation from his previous May 21, 2012 report. He

5

Supra note 2.

4

indicated that appellant had been temporarily totally disabled as a result of the injury from July 9,
2004 until January 29, 2006 and was disabled again beginning February 5, 2007.
By decision dated January 12, 2015, OWCP denied modification of its November 21, 2013
decision. It noted that there was no objective evidence which confirmed the numerous medical
conditions that Dr. Ellis had diagnosed. OWCP explained that, without such objective evidence,
Dr. Ellis’ medical reports were speculative and insufficient to establish appellant’s claim.
On January 11, 2016 appellant requested reconsideration. He provided a January 4, 2016
statement and that diagnostic studies had now been completed which confirmed the upper
extremity diagnoses made by Dr. Ellis.
Appellant submitted various examination records dated July 1 to December 2, 2015 from
Dr. Ignatius D. Roger, a Board-certified plastic and hand surgeon. Dr. Roger indicated that
appellant was a retired postal worker with paresthesias of both hands onset in 2004. He noted that,
although appellant stopped work in 2007, his hand and wrist symptoms persisted. Dr. Roger
related that a March 14, 2015 electromyography (EMG) study showed right carpal tunnel
syndrome. He conducted an examination and observed positive Tinel’s and Phalen’s tests in the
bilateral wrists. Dr. Roger noted minimal crepitus at the right thumb flexor and tenderness over
the right thumb. He reported that sensation was diminished in the median distribution of the right
hand. In a December 2, 2015 record, Dr. Roger related that an October 1, 2015 EMG study
showed left medial and ulnar axonal motor neuropathy and provided a copy of the EMG study.
He diagnosed carpal tunnel syndrome and trigger finger.
In a January 4, 2016 report, Dr. Ellis noted his reexamination of appellant and reiterated
appellant’s history. He indicated that, although appellant’s symptoms had improved when he was
off work, the tingling in his hands had not gone away. Dr. Ellis indicated that appellant continued
to complain of pain in his back, between his shoulders, low back, and buttocks and weakness of
both feet. He related that since his last examination on August 27, 2014 appellant began to
experience pain in the metacarpophalangeal joint. Dr. Ellis provided physical and sensory
examination findings of appellant’s back and bilateral elbows, wrists, hips, and knees similar to
his previous reports. He diagnosed muscle tendon unit strain of the back, deranged discs in the
back at L4 and S1, bilateral L5 spinal nerve root impairment, and bilateral S1 spinal nerve root
impairment due to OWCP File No. xxxxxx293.
Regarding causal relationship, Dr. Ellis again repeated that appellant’s work as markup
clerk required lifting, bending, and twisting, caused multiple subclinical microstrains of the
muscles and tendons in his back and iliolumbar and sacroiliac ligaments. The work appellant
performed on June 19, 2004 caused acute straining of his low back muscles and ligaments. The
straining of his low back, muscles, and ligaments have caused intermittent muscle spasms and
tightness in his back. The tightness in his back caused increased pressure on the discs in the lower
back.
Dr. Ellis further opined that “but for” the subsequent work at the employing establishment,
appellant would not have had the deranged discs and the bilateral L5 and S1 spinal nerve root
impingement down both legs. He reiterated that appellant’s modified-duty sedentary work also
caused aggravation of appellant’s back by putting more pressure on his already injured discs.

5

Dr. Ellis indicated that, although a March 14, 2015 EMG study was negative for radiculopathic or
myopathic process in the lower extremities, it did not mean that appellant did not have myelopathy
and radiculopathy down his lower legs. He explained that it meant that appellant’s radiculopathy
was not severe enough to appear on the EMG/nerve conduction velocity (NCV) study. Dr. Ellis
pointed out that appellant’s physical findings were certainly and definitely positive for bilateral L5
and S1 spinal nerve impairment. He included a copy of the March 14, 2015 EMG/NCV study.
Dr. Ellis concluded that appellant’s repetitive work at the employing establishment would have
caused the muscles, tendons, and joints in his upper extremities to be overused.
By decision dated April 8, 2016, OWCP modified its prior decision to find that appellant
had established various diagnosed upper extremity conditions based on Dr. Ellis’ January 4, 2016
medical report. However, the claim remained denied because the medical evidence of record was
insufficient to establish that appellant’s medical conditions were causally related to factors of his
federal employment. It noted that there was a huge gap in time from when appellant stopped work
and his current diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence7 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.8
In an occupational disease claim, appellant’s burden requires submission of the following:
(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 issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 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

6

Supra note 1.

7

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

8

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
9

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

10

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

6

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.11
ANALYSIS
The Board finds that the appellant has not met his burden of proof to establish lumbar or
upper extremity conditions causally related to factors of his federal employment.
Appellant filed his claim on August 23, 2011, noting that he first became aware of his
claimed conditions and of their relation to his federal employment approximately two years prior
on November 30, 2009. He stopped work on March 2, 2011 and separated from federal
employment several days later on March 4, 2011.
Appellant initially explained that, due to his injuries, he no longer participated in any
recreational activities and related that he watched television in a recliner and socialized on the
phone through hands-free or speaker methods because holding his phone irritated his wrist and
fingers.
In his initial treatment note of November 30, 2011, Dr. Ellis recounted appellant’s general
work history since his employment as a markup clerk in 1998. He provided a history of injury and
related that appellant’s employment duties included reaching out, bending, twisting, rotating,
squatting, and walking. Dr. Ellis referenced a specific instance seven years prior when appellant
was closing a postcon on June 19, 2004. He recounted that appellant finished his shift without
report of pain. The next morning appellant awoke with back pain radiating down his buttocks and
legs. The pain subsided and he continued to work until 2009 when he felt similar symptoms down
his right leg. Dr. Ellis indicated that the work as a markup clerk, caused multiple subclinical
microstrains in the muscles and tendons. He repeated his findings in a substantially similar report
of May 21, 2012 diagnosing low back and bilateral upper extremity maladies. In an April 27, 2014
report, Dr. Ellis again recounted the June 19, 2004 incident and attributed it as the cause of
appellant’s back complaints. He also further opined that the sedentary nature of the job aggravated
his back. As well, Dr. Ellis indicated that the repetitive nature of the job caused appellant’s upper
extremity issues of which appellant was unaware when Dr. Ellis initially examined him in 2009.
In his January 4, 2016 report, he again repeated the findings of his earlier reports.
The Board finds that Dr. Ellis did not explain how appellant’s work duties years prior
would have caused or aggravated the diagnosed conditions, or why such conditions would have
worsened after he stopped work.12 Dr. Ellis made no reference to the time periods between when
the appellant separated from his employment in March 2011 and his findings in May 2012, August,
2014 and later in January 2016. Moreover, he failed to address the fact that appellant only worked
a total of five days over a five-year period and how such little exposure to the employment factors
could have caused or aggravated his claimed conditions.

11

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

12
Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

7

Dr. Ellis further failed to reference with a degree and level of specificity appellant’s
employment activities, specific duties, and length of duration over the extended time period. He
described various activities that appellant allegedly performed over prolonged periods of time and
associated those general duties with work-related diagnoses. Such general findings superimposed
on a generic history are insufficient to meet appellant’s burden of proof. 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 his
condition was caused, precipitated or aggravated by her employment, is sufficient to establish
causal relationship. Causal relationship must be established by rationalized medical opinion
evidence.13
Dr. Ellis opined that appellant’s injuries arose out of and in the course of employment. He
concluded that, “but for” the accepted June 19, 2004 employment injury and appellant’s
subsequent work, appellant would not have suffered these injuries. However, the fact that a
condition manifests itself during a period of employment is not sufficient to establish causal
relationship.14 Temporal relationship alone will not suffice.15
Dr. Ellis based his conclusions on an incomplete and unsubstantiated factual history on
how the incident on June 19, 2004 and subsequent work duties caused or aggravated appellant’s
lower back and upper extremity conditions. For these reasons, the Board finds that Dr. Ellis’
reports are insufficient to establish that appellant sustained an employment-related injury.
Dr. Roger related that a March 14, 2015 EMG study showed right carpal tunnel syndrome.
He diagnosed carpal tunnel syndrome and trigger finger. Dr. Roger did not offer a rationalized
opinion as to the causal nature of the claimed conditions. The Board has held that where causal
relationship is not addressed, the reports are of no probative value.16 Therefore, Dr. Roger’s
reports are also insufficient to establish the claim.
Thus, the Board finds that appellant has not met his 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.

13

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

14

20 C.F.R. § 10.115(e).

15

See D.I., 59 ECAB 158, 162 (2007).

16

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

8

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish lumbar or upper
extremity conditions causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.17
Issued: October 29, 2018
Washington, DC

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

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

17
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

9