United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0190
Issued: February 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 4, 2016 appellant, through counsel, filed a timely appeal from a June 27,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a left knee condition
causally related to the accepted factors of his federal employment.

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.

FACTUAL HISTORY
On November 12, 2014 appellant, then a 53-year-old postal police officer, filed a
recurrence claim (Form CA-2a) alleging that, on November 12, 2014, he sustained left knee pain,
swelling, and difficulty walking as a result of prolonged standing and walking at work. He noted
an original date of injury of June 4, 2013. Appellant stopped work on November 12, 2014.3
Dr. Drew Stein, a Board-certified orthopedic surgeon specializing in sports medicine,
initially treated appellant. In narrative reports dated October 9 and November 11, 2014, he
related that on June 4, 2013 appellant was involved in a motor vehicle accident at work and
complained of bilateral knee pain. Dr. Stein indicated that appellant currently complained of
increasing left knee pain. Upon physical examination of appellant’s right knee, he observed
medial joint line tenderness and no effusion. Sensation was intact and strength was 5/5.
Dr. Stein reported that examination of appellant’s left knee revealed lateral joint line tenderness
and positive patella compression. He noted that a magnetic resonance imaging (MRI) scan of the
left knee dated June 12, 2013 revealed contusion of the anterior medial tibial plateau and patella
without fracture, small ganglion cysts along the superior aspect of the anterior cruciate ligament
(ACL) and within the anterior intercondylar notch, chronic osteochondral lesions of the
patellofemoral compartment, and minimal effusion. In the November 11, 2014 report, Dr. Stein
related that a recent MRI scan of the left knee dated October 31, 2014 showed partial ACL tear,
mild-to-moderate degenerative joint disease, lateral meniscus tear, and small joint effusion. He
diagnosed bilateral knee contusions, right knee nondisplaced medial tibial plateau fracture,
medial meniscus tear, ACL tear, and left knee patellofemoral osteochondritis dissecans (OCD),
lateral meniscus tear.4 Dr. Stein reported that appellant’s complaints and injuries were related to
the described accident on June 4, 2013.
By letter dated February 18, 2015, OWCP informed appellant that while he initially filed
a Form CA-2a alleging a recurrence of a June 4, 2013 employment injury, a review of the
evidence demonstrated that he was alleging a new occupational disease due to repetitive work
over the course of more than one work shift. It advised him that it was administratively creating
a new occupational disease claim using his Form CA-2a. OWCP requested that appellant
respond to an attached development questionnaire in order to substantiate the factual elements of
his claim and provide a medical report from a physician which established a medical diagnosis
causally related to his employment. Appellant was afforded 30 days to submit the additional
evidence. A similar letter was sent to the employing establishment.

3

Appellant previously filed a traumatic injury claim (Form CA-1) for a June 4, 2013 employment injury under
OWCP File No. xxxxxx900. OWCP accepted that claim for a contusion of the left wrist, tear of the medial
meniscus of the right knee, hemothesis of the right knee, sprain of the right knee and contusion of the left knee.
Appellant underwent arthoscopic repair of the right knee on August 7, 2013 and returned to work on
November 4, 2013. Appellant also has a traumatic injury claim accepted for a March 15, 2006 employment injury
under OWCP File No. xxxxxx464.
4

In an October 31, 2014 MRI scan report of appellant’s left knee, an unknown provider informed Dr. Stein that
the MRI scan revealed moderate intrasubstance partial tear diffusely involving the ACL with mild cystic changes
proximally, a small horizontal tear of the body of the lateral meniscus, and small joint effusion. The unknown
provider also noted mild-to-moderate degenerative joint disease of the lateral joint compartment.

2

In a March 3, 2015 report, Dr. Stein described the June 4, 2013 work injury and indicated
that appellant currently complained of increasing left knee pain. He reviewed appellant’s
history, including appellant’s June 12, 2013 and October 31, 2014 MRI scan reports. Upon
physical examination, Dr. Stein observed positive lateral joint line tenderness and patella
compression of appellant’s left knee. He also reported intact sensation and 5/5 strength.
Dr. Stein diagnosed bilateral knee contusions, right knee nondisplaced medial tibial plateau
fracture, medial meniscus tear, ACL tear, and left knee patellofemoral OCD, lateral meniscus
tear. He opined that appellant’s complaints and injuries of bilateral knees were related to the
described accident on June 4, 2013.
On March 23, 2015 appellant also resubmitted Dr. Stein’s March 3, 2015 narrative report
with an addendum. Dr. Stein opined:
“The condition in [appellant’s] left knee is the result of an occupational disease.
[He] stands on his feet for the majority of the day and began experiencing
increasing left knee pain following his right knee arthroscopy as he was favoring
his left knee while in recovery. [Appellant’s] occupation, which requires
extensive standing, has exacerbated his left knee ailment.”
Dr. Stein noted that the most recent MRI scan findings of the left knee dated October 31,
2014 showed degenerative joint disease and a lateral meniscus tear. He concluded that
appellant’s complaints and injury of the left knee were related to the described accident reported
on October 1, 2014.
On March 11, 2015 OWCP received appellant’s response to its development
questionnaire. He attributed his left knee condition to prolonged standing and foot patrols since
July 1999. Appellant noted that he stood for six to seven hours per shift for three to four days
per week. He related that he originally filed a recurrence claim of his June 4, 2013 employment
injury, but OWCP’s claims examiner determined that his recurrence was actually a new
occupational disease claim.
In a March 11, 2015 statement, the employing establishment concurred with appellant’s
allegations. It was noted that all postal police officers were required to perform intermittent
patrols, standing, driving, and administrative work. It was also noted that once the employing
establishment was made aware of appellant’s pain and discomfort, he was placed to a limited
assignment, which minimized the amount of standing.
By decision dated April 10, 2015, OWCP denied appellant’s occupational disease claim.
It accepted his employment duties as a postal police officer and that he had been diagnosed with
a left knee condition, but denied his claim because the medical evidence of record was
insufficient to establish causal relationship between appellant’s left knee condition and his
employment. OWCP determined that Dr. Stein merely provided generalized statements of causal
relationship without sound medical rationale explaining how prolonged standing at work caused
or aggravated his left knee condition.
On April 4, 2016 appellant requested reconsideration. Counsel reviewed appellant’s
history of injury, including his previously accepted June 4, 2013 employment injury. He related
that appellant had returned to work following the June 4, 2013 employment injury, but had to

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stop on November 10, 2014 due to prolonged standing and performing foot patrols. Counsel
alleged that the factual and medical evidence submitted clearly established that appellant’s
medical conditions were compensable under FECA. He asserted that appellant had met his
burden of proof to establish that his injuries were sustained in the performance of his federal
duties and that such injuries and disability were causally related to the employment injury.
Counsel indicated that he was providing a new November 12, 2015 report by Dr. Stein, which
clearly constituted rationalized medical opinion evidence to establish causal relationship.
Appellant submitted a November 12, 2015 narrative report by Dr. Stein, which was
substantially similar to his March 3, 2015 report and addendum. Dr. Stein accurately described
appellant’s previous June 4, 2013 employment injury and related appellant’s complaints of
increasing left knee pain. He provided the dates that he evaluated appellant in his office.
Dr. Stein reviewed appellant’s history, including the June 12, 2013 and October 31, 2014 MRI
scan reports of appellant’s left knee. He provided physical examination findings similar to his
previous reports. Dr. Stein diagnosed bilateral knee contusion, right knee nondisplaced medial
tibial plateau fracture, medial meniscus tear, and ACL tear post arthroscopy, and left knee
patellofemoral OCD, lateral meniscus tear. He concluded that appellant’s employment, which
required extensive standing, exacerbated his left knee condition.
By decision dated June 27, 2016, OWCP denied modification of its April 10, 2015 denial
decision. It found that the medical evidence failed to establish a causal relationship between
appellant’s left knee condition and his federal employment. OWCP determined that appellant’s
treating physician failed to provide a rationalized medical opinion based on an accurate history
of appellant’s left knee condition explaining how his employment duties aggravated his
preexisting left knee condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 including that an injury occurred 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.7 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.8

5

Supra note 2.

6

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

7

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
8

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

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10
ANALYSIS
The record reflects that appellant had a prior work injury on June 4, 2013 which was
accepted for contusion of the left knee. The June 4, 2013 injury was also accepted for right knee
conditions, including a tear of the right medial meniscus. Appellant underwent arthroscopy of
the right knee on August 7, 2013 and returned to work in November 2013. On November 11,
2014 he alleged various left knee conditions had developed, including a partial ACL tear, as a
result of prolonged standing and foot patrols as part of his employment duties as a postal police
officer. OWCP accepted appellant’s alleged factors of employment and that he sustained a
diagnosed left knee condition. However, it denied his claim finding insufficient medical
evidence to establish that his left knee condition was causally related to the accepted factors of
employment.
The Board finds that appellant has not met his burden of proof.
Appellant narrative reports by Dr. Stein dated October 9, 2014 to November 12, 2015,
which provided a history of the June 4, 2013 employment injury and the treatment that appellant
received thereafter. Dr. Stein related that appellant currently complained of increasing left knee
pain. He reviewed appellant’s June 12, 2013 MRI scan report of the left knee and noted that a
more recent MRI scan dated October 31, 2014 showed partial ACL tear, mild-to-moderate
degenerative joint disease, lateral meniscus tear, and small joint effusion. Dr. Stein diagnosed
bilateral knee contusions, right knee nondisplaced medial tibial plateau fracture, medial meniscus
tear, ACL tear, and left knee patellofemoral OCD, lateral meniscus tear.
Although Dr. Stein initially reported that appellant’s left knee complaints were related to
the described accident on June 4, 2013, for which OWCP had accepted a left knee contusion, he
opined in his March 3, 2015 report that appellant’s left knee condition was exacerbated by his
occupation, which required extensive standing. He noted that the new MRI scan findings of the
left knee dated October 31, 2014 showed degenerative joint disease and a lateral meniscus tear,
which was not present in his previous MRI scans. Dr. Stein explained: “[appellant] stands on
his feet for the majority of the day and began experiencing increasing left knee pain following
his right knee arthroscopy as he was favoring his left knee while in recovery.” He concluded that
appellant’s complaints and injury of the left knee was related to the occupational injury as
reported on October 1, 2014.
However, Dr. Stein failed to explain how the specific activity of standing caused or
aggravated appellant’s left knee condition conditions, which included lateral meniscal tear and
degenerative joint disease. Without explaining how physiologically the act of standing caused or
9

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

10

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

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contributed to the diagnosed conditions, Dr. Stein’s opinion is of limited probative value.11 A
mere conclusion without the necessary rationale explaining how and why the physician believes
that a claimant’s accepted exposure resulted in the diagnosed condition is insufficient to meet
appellant’s burden of proof.12 Furthermore, the mere fact that a disease or condition manifests
itself during a period of employment, nor the belief that the left knee condition had been caused
by the identified employment factor, is sufficient to establish causal relationship.13
While Dr. Stein suggested that appellant favored his left knee following his right knee
arthroscopy, Dr. Stein also noted in his reports that appellant had no effusion of the right knee,
intact sensation, and strength. He offered no rationalized medical explanation as to why
appellant’s essentially normal right knee findings would have caused the deterioration of
appellant’s left knee.14
While Dr. Stein opined that appellant’s condition occurred at work, such generalized
statements do not establish causal relationship because they merely repeat appellant’s allegations
and are unsupported by adequate medical rationale explaining how his physical activity at work
actually caused or aggravated the diagnosed conditions.15 His reports are therefore insufficient
to meet appellant’s burden of proof.
Appellant may submit additional evidence, together with a formal written request for
reconsideration, to OWCP within one year of the Board’s merit decision pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to factors of his federal employment.

11

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

12

G.M., Docket No. 14-2057 (issued May 12, 2015); Cecelia M. Corley, 56 ECAB 662 (2005).

13

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

14
In so far as Dr. Stein is suggesting a consequential injury from the accepted June 4, 2013 injury, the basic rule
is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable
if it is the direct and natural result of a compensable primary injury. In L.T., Docket No. 11-0147 (issued
September 8, 2011). Appellant stated that he favored his right knee that led to his left knee condition. However, he
did not submit sufficient medical opinion from a physician who, on the basis of a complete and accurate factual and
medical history, concluded that his left knee condition was caused or aggravated by residuals of his accepted injury.
15

See K.W., Docket No. 10-0098 (issued September 10, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the June 27, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDITH NOURSE ROGERS MEMORIAL
VETERANS HOSPITAL, Bedford, MA,
Employer
__________________________________________

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Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1277
Issued: January 3, 2020

Case Submitted on the Record

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

JURISDICTION
On May 20, 2019 appellant, through counsel, filed a timely appeal from a December 7,
2018 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.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish lumbar conditions
causally related to accepted factors of her federal employment.
FACTUAL HISTORY
On August 7, 2017 appellant, then a 62-year-old medical assistant, filed an occupational
disease claim (Form CA-2) alleging that her lumbar conditions had been aggravated by factors of
her federal employment, including continuous walking and standing and various patient care
duties.3 She noted that she first became aware of her condition and its relationship to her federal
employment on November 4, 2013. Appellant did not stop work.
In a development letter dated August 29, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her regarding the medical
and factual evidence required to establish her claim. OWCP afforded appellant 30 days to provide
the requested information.
OWCP thereafter received a May 16, 2017 report from Dr. John W. Ellis, a Board-certified
family medicine physician. Dr. Ellis detailed appellant’s history of injury on November 4, 2013
summarized medical reports and diagnostic tests he had reviewed, and provided examination
findings. He reported that on November 4, 2013 her right foot was caught in a nursing monitor
strip, which caused her to fall on both hands and knees. Dr. Ellis noted that appellant’s current
symptoms included difficulty walking and that she was stiff in the morning. Appellant’s physical
examination revealed decreased L5 and S1 sensation to light touch and pin prick, right foot
dorsiflexion weakness, straight leg raising and Bragard’s sign positive in the right leg and negative
in the left leg, mild bilateral patella crepitation, restricted bilateral hip range of motion, mild right
ankle lateral talofibular ligament swelling, and weakness on toe and heel walking. Dr. Ellis
diagnosed sciatica, right L5 and S1 nerve impingement, lumbar intervertebral disc degeneration,
spondylolisthesis, and lumbar stenosis. He concluded that appellant’s employment caused,
contributed to, and/or aggravated the diagnosed conditions. In support of his opinion, Dr. Ellis
explained that she tripped and fell forward which caused her low back sprain and that the jerking
caused a slippage of her lower back vertebrae resulting in spondylolisthesis and impingement of
the spinal nerves down the legs. He also opined that appellant’s continued employment following
her November 4, 2013 fall aggravated her low back.
By decision dated November 20, 2017, OWCP denied appellant’s claim finding that the
medical evidence submitted was insufficient to establish causal relationship between the diagnosed

3

OWCP assigned the current claim assigned OWCP File No. xxxxxx132. On November 4, 2013 appellant filed a
traumatic injury claim (Form CA-1) alleging that on that date she sustained left leg, hip, and elbow pain when she fell
on her left side after her right foot got caught in a strip cord and she fell on her left side. OWCP assigned OWCP File
No. xxxxxx800 to this claim, which was denied by decision dated February 14, 2014 as no medical evidence with a
diagnosis had been submitted. By decision dated February 13, 2015, it modified its prior decision finding the medical
evidence submitted contained a diagnosis, but affirmed as modified as causal relationship between the accepted
November 4, 2013 employment incident and the diagnosed conditions had not been established. OWCP
administratively combined OWCP File Nos. xxxxxx132 and xxxxxx800, with the latter designated as the master file.

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low back conditions and the identified employment duties. It concluded that she had not met the
requirements to establish an employment-related injury or condition.
On October 16, 2018 appellant, through counsel, requested reconsideration and submitted
an October 3, 2018 report from Dr. Ellis.
In the October 3, 2018 report, Dr. Ellis again described appellant’s November 4, 2013
employment incident, summarized medical reports and diagnostic tests he reviewed, and provided
examination findings. He noted that her back pain was aggravated by lifting patients and bending
and twisting while filing charts. Dr. Ellis noted that appellant’s job duties included lifting patients,
making beds, helping patients to shower, and bending. He indicated that each time she performed
her job duties she sustained repetitive strains of her lower back ligaments and muscles. Dr. Ellis
diagnosed back muscle tendon unit strain, back deranged discs, spondylolisthesis, and bilateral L5
and S1 spinal nerve impingement. He indicated that appellant’s hip pain was in the sacroiliac joint
rather than the hip joint. Dr. Ellis indicated that she had physical impairments prior to starting
work for the employing establishment, including back problems and radiculopathy from a 2009
injury. Dr. Ellis concluded that appellant’s employment duties aggravated her preexisting low
back condition.
By decision dated December 7, 2018, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;8
(2) medical evidence establishing the presence or existence of the disease or condition for which

4

Supra note 2.

5

S.H., Docket No, 19-0631 (issued September 5, 2019); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

A.P., Docket No. 19-1158 (issued October 29, 2019); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine
Pendleton, 40 ECAB 1143 (1989).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB
345 (1989).
8

S.C., id.; Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

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compensation is claimed;9 and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.10
Causal relationship is a medical issue and the medical evidence required to causal
relationship is rationalized medical evidence.11 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.12
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish causal relationship.13
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish lumbar
conditions causally related to the accepted factors of her federal employment.
Appellant submitted reports by Dr. Ellis in support of his claim. In his May 16, 2017 and
October 3, 2018 reports, Dr. Ellis noted her employment history, her claimed November 4, 2013
employment-related injury under OWCP File No. xxxxxx800, and her preexisting conditions, and
he reviewed medical records and presented examination findings. In his May 16, 2017 report, he
diagnosed sciatica, right L5 and S1 nerve impingement, lumbar intervertebral disc degeneration,
spondylolisthesis, and lumbar stenosis, all of which he attributed to appellant’s November 4, 2013
employment incident and to her employment duties. In his October 3, 2018 report, Dr. Ellis
diagnosed back muscle unit tendon strain, deranged back discs, bilateral L5 and S1 spinal nerve
impingement, and spondylolisthesis, all of which he opined had been aggravated by her
employment duties.

9

B.K., Docket No. 19-0829 (issued September 25, 2019); Michael R. Shaffer, 55 ECAB 386 (2004).

10
V.G., Docket No. 19-0908 (issued October 25, 2019); C.M., Docket No. 18-1516 (issued May 8,
2019); P.D., Docket No. 17-1885 (issued September 17, 2018); Beverly A. Spencer, 55 ECAB 501 (2004).
11

V.G., id.; L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB
140 (2000).
12

V.G., supra note 10; L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB
365 (1994).
13

Id.

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013);
P.J., Docket No. 18-1738 (issued May 17, 2019); G.G., Docket No. 18-0550 (issued October 1, 2018).

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In his May 16, 2017 report, Dr. Ellis explained that the jerking caused by appellant’s
November 4, 2013 trip and falling forward caused a slippage of her lower back, resulting in spinal
nerve impingement down her legs and spondylolisthesis. He opined that the diagnosed conditions
had been aggravated by her employment following her slip and fall on November 4, 2013. In his
October 3, 2018 report, Dr. Ellis opined that appellant’s preexisting back conditions had been
aggravated by both her prior November 4, 2013 employment incident and her work duties.
Specifically, he explained that her duties of lifting patients and bending and twisting while filing
charts aggravated her back pain, shoulders, caused her lower back muscles, and ligaments to be
repetitively strained. While Dr. Ellis generally supported causal relationship, his opinion was
insufficiently rationalized. The Board has previously held that mere conclusory statements, not
fortified by explanation, are insufficient to establish causal relationship between employment
factors and diagnosed conditions.15 Without further explanation as to how, physiologically, the
movements involved in appellant’s employment duties caused or contributed to the diagnosed
lumbar conditions, these opinions on causal relationship are of limited probative value.16 A
rationalized medical opinion is especially necessary in light of appellant’s preexisting lumbar
conditions.17 Without medical rationale explaining how the accepted employment factors caused,
contributed to, or aggravated the diagnosed conditions, Dr. Ellis’ reports are insufficient to
establish her claim.18
On appeal counsel asserts that Dr. Ellis’ reports are sufficient to establish entitlement or to
require referral to a second opinion physician. For the reasons set forth above, the Board finds the
reports of Dr. Ellis are insufficiently rationalized to warrant either acceptance of her claim or
further development of the medical opinion evidence by referral for a second opinion.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish lumbar
conditions causally related to accepted factors of her federal employment.

15
V.S., Docket No. 19-0936 (issued October 7, 2019); M.S., Docket No. 19-0587 (issued July 22, 2019); B.C.,
Docket No. 18-1735 (issued April 23, 2019); N.M., Docket No. 010-0283 (issued August 19, 2010).
16

Id.

17

J.H., Docket No. 19-0838 (issued October 1, 2019); D.M., Docket No. 19-0389 (issued July 16, 2019).

18

Id.

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ORDER
IT IS HEREBY ORDERED THAT the December 7, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
_________________________________________

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

Docket No. 11-1489
Issued: February 22, 2012

Case Submitted on the Record

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

JURISDICTION
On June 8, 2011 appellant filed a timely appeal of a January 10, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) denying her request for reconsideration
because it was not timely filed and failed to establish clear evidence of error. Since more than
one year elapsed between the most recent merit decision dated July 16, 2003 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On April 19, 1969 appellant, then a 25-year-old mail carrier, filed an occupational disease
claim alleging that carrying mail placed excessive weight on her shoulder. OWCP accepted an
aggravation of a preexisting postural complex condition. On August 30, 1970 appellant
sustained an employment-related strain of her right trapezius muscle, reaggravation of the
preexisting postural condition and an emotional condition, accepted for paranoid reaction. She
received wage-loss compensation beginning September 1, 1970. In a March 24, 1980 decision,
OWCP denied the claim for compensation after January 4, 1980. Appellant returned to work
briefly in 1981 but stopped on April 9, 1981. OWCP denied wage-loss compensation.
Appellant returned to work again on October 2, 1982 but stopped on October 8, 1982.
She claimed compensation beginning October 8, 1982 due to right shoulder pain. In an April 9,
1984 decision, OWCP denied appellant’s claim for compensation based on the opinion of an
impartial medical examiner, Dr. Gordon Clark, a Board-certified orthopedic surgeon. On
November 9, 1983 Dr. Clark found that she was not disabled as a result of any work-related
injury and that her continuing restrictions were not work related. OWCP affirmed this decision
on November 7, 1984 and August 2, 1985. In a July 16, 2003 merit decision, it denied
modification of its prior decisions. OWCP found that the opinion of Dr. Clark was due special
weight.
The claim was thereafter dormant until 2010. In a letter dated July 7, 2010, appellant
noted that she was sending medical evidence to OWCP to establish that her medical condition
was an ongoing and permanent injury. She also advised that she was experiencing stress.
On October 7, 2010 appellant requested reconsideration and submitted an April 28, 2010
report from Dr. James V. Luck, Jr., a Board-certified orthopedic surgeon, who noted that she was
a 67-year-old woman who complained of pain in both shoulders which began when she was
carrying mail between 1969 through the 1980s. Dr. Luck advised that appellant was requesting
“an evaluation as part of her application to reopen her claim” and that he did not have access to
her medical records. Appellant related that she sustained several injuries while working
“between 1969 through the 1980’s, all involving her shoulders and related to carrying mail.” On
examination, she had pain radiating out the upper trapezius bilaterally and radiating up to the
occiput without numbness or tingling of her upper extremities and no radiculopathy. Appellant
noted that she slept with a cervical pillow in order to reduce the pain and was currently attending
physical therapy. Dr. Luck found a full range of motion of both shoulders, tight trapezius
muscles bilaterally and limited range of motion of the cervical spine. He diagnosed upper
trapezius myalgia, early osteoarthritis of the glenohumeral joint, left shoulder and moderate to
moderately advanced osteoarthritis of the acromioclavicular joint, right shoulder. Dr. Luck
recommended that appellant avoid heavy lifting or anything strenuous regarding her right
shoulder. He opined that her “problem of upper trapezius myalgia and osteoarthritis of the
acromioclavicular joint could easily relate to her history of carrying a heavy mail sack over the
right shoulder.” Dr. Luck recommended physical therapy.
In a June 24, 2010 disability certificate, a physician whose signature is illegible, advised
that appellant was disabled due to chronic neck and shoulder pain exacerbated by her work at the
employing establishment.

2

In a January 10, 2011 decision, OWCP denied appellant’s request for reconsideration for
the reason that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA3 vests OWCP with discretionary authority to determine
whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”4
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.5
The imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).6 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8128(a).

5

20 C.F.R. § 10.607(a).

6

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

Id. at § 10.607(b).

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whether the new evidence demonstrates clear error on the part of OWCP.8 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision. The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that OWCP abused its discretion in denying merit review in the face of such evidence.9
ANALYSIS
In its January 10, 2011 decision, OWCP properly determined that appellant failed to file a
timely application for review. It issued its most recent merit decision on July 16, 2003.
Appellant’s October 7, 2010 letter requesting reconsideration was submitted more than one year
after the July 16, 2003 merit decision and was untimely.
In accordance with internal guidelines and with the Board precedent, OWCP properly
performed a limited review to determine whether appellant’s application for review established
clear evidence of error, which would warrant reopening her case for merit review,
notwithstanding the untimeliness of her application. It reviewed the evidence submitted by
appellant in support of her application for review, but found that it did not clearly show that
OWCP’s prior decision was in error.
The Board finds that the evidence submitted by appellant does not raise a substantial
question as to the correctness of OWCP’s decision and is insufficient to demonstrate clear
evidence of error. The underlying issue is whether OWCP properly found that appellant no
longer had any disabling conditions causally related to her employment factors.
The April 28, 2010 report of Dr. Luck, related appellant’s history and provided an
opinion that her “problem of upper trapezius myalgia and osteoarthritis of the acromioclavicular
joint could easily relate to her history of carrying a heavy mail sack over the right shoulder.”
The Board notes that his report is not sufficient to establish clear evidence of error as his opinion
is speculative and not well reasoned with regard to why her current condition and disability are
attributable to her work injuries. It is noted that even a well-reasoned opinion supporting causal
relationship would be insufficient to establish clear evidence of error. The Board has held that
the term “clear evidence of error” is intended to represent a difficult standard. The claimant
must present evidence which on its face shows that OWCP made an error (for example, proof of
a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to OWCP’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of a case.10

8

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

9

Id.

10

Annie L. Billingsley, 50 ECAB 210 (1998).

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Other evidence submitted is also insufficient to establish clear evidence of error. A
June 24, 2010 disability certificate is of no probative medical value as it cannot be determined
that it is from a physician.11 Likewise, reports from appellant’s physical therapists do not
constitute probative medical evidence. A physical therapist is not defined as a physician under
FECA.12 Evidence that is not germane to the issue on which the claim was denied is insufficient
to demonstrate clear evidence of error.13
The Board finds that this evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that OWCP erred in its determination
that appellant no longer had any conditions which were causally related to employment factors.14
The Board finds that she has not presented clear evidence of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

11

C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may not be considered as probative medical
evidence if there is no indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2); reports lacking proper identification do not constitute probative medical evidence).
12

See David P. Sawchuk, 57 ECAB 316 (2006). See 5 U.S.C. § 8101(2).

13

F.R., Docket No. 09-575 (issued January 4, 2010).

14

John Crawford, 52 ECAB 395 (2001); Linda K. Cela, 52 ECAB 288 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the January 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2012
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, DAYTON
INTERNATIONAL AIRPORT, Vandalia, OH,
Employer
__________________________________________

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

Docket No. 07-1320
Issued: September 26, 2007

Case Submitted on the Record

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

JURISDICTION
On April 16, 2007 appellant filed a timely appeal from the December 18, 2006 merit
decision of the Office of Workers’ Compensation Programs which denied her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the Office’s decision to deny a reopening of her case.
ISSUE
The issue is whether the Office properly denied appellant’s June 5, 2006 request for
reconsideration.
FACTUAL HISTORY
On June 13, 2003 appellant, then a 42-year-old stakeholder liaison, filed an occupational
disease claim alleging that her severe generalized anxiety was a result of a hostile work

environment, demeaning comments, sexual harassment and threats in the course of her federal
employment. The Office accepted her claim for major depressive disorder and post-traumatic
stress disorder. It found that the evidence established three compensable factors of employment
and that the medical opinion evidence sufficiently connected at least one of these compensable
factors to appellant’s diagnosed emotional condition.
Appellant thereafter claimed compensation for wage loss beginning June 4, 2003. The
Office denied that claim on March 9, 2006. It found that the opinion of the attending clinical
psychologist, Dr. H. Owen Ward, Jr., was insufficient to establish injury-related disability
beginning June 4, 2003. The Office noted that Dr. Ward who began treating appellant on
July 12, 2004, more than a year after the start of the claimed disability, derived his opinion from
the earlier reports of a family physician and a licensed social worker, both of whom lacked the
professional expertise to address appellant’s emotional condition.
On June 5, 2006 appellant requested reconsideration. She submitted, among other things,
an April 25, 2006 report from Dr. Joseph Smith, her family physician:
“I am [appellant’s] family physician. I am [B]oard[-]certified in family medicine,
and I am licensed in the state of Ohio to diagnose and treat medical and mental
conditions. I can provide work releases when deemed necessary. I have read
Dr. Ward’s report and I concur [with] his findings concerning [appellant]. I
diagnosed [appellant] with mental illness on her initial presentation to my office
on April 14, 2003. On that date she was diagnosed with generalized anxiety
disorder and major depressive disorder and started on psychotropic medication. I
subsequently, followed [appellant] and treated her for these disorders. I also
referred her to a psychologist and comanaged her mental illness with Dr. Ward,
when she began seeing him. At the time of my initial diagnosis and initiation of
her treatment, [appellant] was employed with the Safety Administration.”
In a decision dated December 18, 2006, the Office denied appellant’s request for
reconsideration. It found that the evidence submitted was insufficient to warrant a merit review
of her case. The Office found that Dr. Smith’s April 25, 2006 report had no bearing because he
provided no credentials to substantiate his claim that he was a psychiatrist or licensed
psychologist.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.1 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the “application for
reconsideration.”2

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.605 (1999).

2

An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.3
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.4 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.5
ANALYSIS
The reason the Office denied appellant’s claim for wage loss beginning June 4, 2003 was
that Dr. Ward, her clinical psychologist, based his opinion on the reports of professionals who
were not found competent to address the issue of emotional disability for work, including
Dr. Smith, appellant’s family physician. In his April 25, 2006 report, Dr. Smith responded
directly to the Office’s finding. He explained that he was Board-certified in family medicine and
licensed in the state of Ohio to diagnose and treat medical and mental conditions.6 The Office
abused its discretion by disregarding relevant medical evidence submitted in support of
appellant’s claim. While a physician’s qualifications may have a bearing on the probative value
of the medical opinion expressed, it does not mean that the report may be disregarded by the
Office.7 The evidence submitted on reconsideration shows that Dr. Smith had the professional
expertise to address appellant’s mental condition, something the Office determined he did not
possess as a family physician. It establishes, in turn, that the Office could not fault Dr. Ward for
his reliance on Dr. Smith’s findings.
Because this evidence is new and goes directly to the basis of the Office’s March 9, 2006
merit denial, the Board finds that appellant’s June 5, 2006 request for reconsideration satisfies
the third standard for obtaining a merit review of her claim. The Board will set aside the
Office’s decision denying reconsideration and remand the case for an appropriate final decision
on the merits of appellant’s claim for wage loss beginning June 4, 2003.
3

Id. at § 10.606.

4

Id. at § 10.607(a).

5

Id. at § 10.608.

6

Dr. Smith did not claim, as the Office asserted, that he was a psychiatrist or licensed psychologist.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.3 (October 1994).

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CONCLUSION
The Board finds that the Office abused its discretion by denying appellant’s June 5, 2006
request for reconsideration. She submitted relevant and pertinent new evidence not previously
considered by the Office and is therefore entitled to a merit review of her claim.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2006 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for further action
consistent with this opinion.
Issued: September 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, GARY PLANT,
Gary, IN, Employer
__________________________________________

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

Docket No. 10-825
Issued: October 20, 2010

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 February 2, 2010 appellant, through his representative, filed a timely appeal from the
August 26, 2009 nonmerit decision of the Office of Workers’ Compensation Programs’ denying
her request for reconsideration. The last merit decision of the Office was an August 3, 2009
decision denying appellant’s occupational disease claim. Because more than 180 days elapsed
between the most recent merit decision to the filing of this appeal, the Board lacks jurisdiction to
review the merits of this claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review pursuant to 5 U.S.C. § 8128(a).
1

Under the Board’s Rules of Procedure, in computing the date of filing of an appeal, he 180 days begins to run on
the day following the date of the Office decision. 20 C.F.R. § 501.3(f)(2). The time began to run from the
August 3, 2009 Office decision on August 4, 2009 from which 180 days fell on Sunday, January 31, 2010.
Appellant had until the close of the next business day, February 1, 2010, to timely submit an appeal; however, the
postmark of the appeal was February 2, 2020. See 20 C.F.R. § 501.3(F)(1).

FACTUAL HISTORY
On April 8, 2009 appellant, then a 49-year-old automation clerk, filed an occupational
disease claim alleging her right shoulder bursitis and tendinitis, left shoulder pain and upper back
pain and spasm were employment related.2 She first became aware of these conditions on
January 20, 2007, but did not realize they were employment related until January 23, 2009.
In an April 21, 2009 attending physician’s report (Form CA-20), Dr. Mark O. Carter, a
treating Board-certified family practitioner, diagnosed bilateral shoulder tendinitis. He checked
“yes” to the question of whether the condition was employment related.
By letter dated May 7, 2009, the Office informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised as to the medical and factual
evidence needed to support her claim, which was to be submitted within 30 days.
In a June 2, 2009 note, Dr. Carter stated that appellant had chronic bilateral shoulder pain
as a result of work activities, which resulted in bilateral shoulder surgery. He related that
appellant recovered and returned to work in another position as an automation clerk in
May 2008. Dr. Carter stated that appellant’s current conditions included acromioclavicular joint
arthritis with prominent spurs, subacromial impingement with cystic changes to humeral head
and tendinitis of rotator cuff. He attributed her chronic pain to the repetitive use of upper arms
required by her automation clerk position.
By decision dated August 3, 2009, the Office denied appellant’s claim. (RD 8/3/2009) It
found the medical evidence of record insufficient to establish a causal relationship between her
employment duties as an automation clerk and the bilateral shoulder and back conditions she
claimed.
On August 17, 2009 appellant requested reconsideration. (RD 8/20/2009) No evidence
was submitted with her request.
By decision dated August 26, 2009, the Office denied appellant’s request for further
merit review.3

2

The Office noted that appellant had prior accepted claims. Appellant’s September 27, 2000 traumatic injury
claim was accepted for a laceration/contusion of the right thumb. A May 13, 2003 occupational disease claim was
accepted for a left shoulder tendinitis/sprain; chronic impingement and partial tear rotator cuff tendon; impingement
and partial tear rotator cuff tendon. The Office accepted a January 20, 2007 occupational disease claim for a right
shoulder impingement syndrome with labral and cartilage tear with surgery performed in June 2007 and aggravation
of the left shoulder tendinitis/sprain, chronic impingement and partial tear rotator cuff with surgery performed in
July 2007.
3

The Board notes that, following the August 26, 2009 decision, the Office received additional evidence.
However, the Board may not consider new evidence for the first time on appeal. See 20 C.F.R. §§ 501.2(c); M.B.,
60 ECAB ___ (Docket No. 09-176, issued September 23, 2009); J.T., 59 ECAB ___ (Docket No. 07-1898, issued
January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54
ECAB 373 (2003).

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) submit relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
Appellant’s August 17, 2009 request for reconsideration did not allege or demonstrate
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Appellant did
not submit any evidence with her request for reconsideration. Consequently, she not entitled to a
review of the merits of her claim based on the above-noted requirements under section
10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to
further consideration of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(2), and thus the Office properly denied her August 17, 2009 request for
reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

4

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.
5

20 C.F.R. § 10.606(b)(2). See J.M., 60 ECAB ___ (Docket No. 09-218, issued July 24, 2009); Susan A. Filkins,
57 ECAB 630 (2006).
6

20 C.F.R. § 10.607(a). See S.J., 60 ECAB ___ (Docket No. 08-2048, issued July 9, 2009); Robert G. Burns, 57
ECAB 657 (2006).
7

20 C.F.R. § 10.608(b). See Y.S., 60 ECAB ___ (Docket No. 08-440, issued March 16, 2009); Tina M. ParrelliBall, 57 ECAB 598 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 26, 2009 is affirmed.
Issued: October 20, 2010
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Princeton, NJ, Employer
__________________________________________

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

Docket No. 14-36
Issued: March 6, 2014

Case Submitted on the Record

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

JURISDICTION
On October 15, 2013 appellant, through his attorney, filed a timely appeal from the
May 1 and July 17, 2013 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained right carpal tunnel syndrome in the performance
of duty causally related to factors of his federal employment.
On appeal, counsel contends that the factual and medical evidence of record is sufficient
to establish that appellant sustained employment-related right carpal tunnel syndrome.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 11, 2012 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim alleging that on May 5, 2010 he first became aware of his carpal tunnel syndrome
and realized that his condition was caused by the repetitive motion of his right hand while casing
mail.
In a January 26, 2012 medical report, Dr. Laura E. Ross, a Board-certified orthopedic
surgeon, noted appellant’s right wrist, arm, leg, foot and neck symptoms. She listed findings on
physical examination and diagnosed cervical and lumbar sprain/strain and right leg pain.
In a February 1, 2012 report, Dr. Craig S. Kimmel, a Board-certified family practitioner,
advised that appellant had complex regional pain syndrome in his right foot and ankle resulting
from an injury and subsequent surgery in 2007. Appellant had progressive hyperesthesia and
sweating and swelling with loss of preprioception and balance which caused an inability to
concentrate, severely impaired judgment, memory and sleep loss, and severe anxiety and
depression. He had multiple falls and it was not safe for him to stand or walk any distance
without aid. Dr. Kimmel opined that appellant was permanently and totally disabled due to his
condition. He stated that appellant’s multiple falls led to his neck injury with right cervical
radiculopathy. This condition caused burning pain and numbness down his right arm into his
fingers. Appellant also had numbness in his face and back. Dr. Kimmel stated that this made it
difficult for him to work. Appellant’s cervical radiculopathy was compounded by carpal tunnel
syndrome in the right hand which had not responded to treatment and may require surgery.
Dr. Kimmel advised that the area of his complex regional pain syndrome had spread up his right
leg and affected his thigh and lower back. He concluded that appellant had problems with
sciatica which further complicated his clinical picture.
By letter dated May 21, 2012, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested factual and medical evidence, including a
rationalized medical opinion from an attending physician explaining the causal relationship
between his claimed medical condition and his federal employment.
In a May 13, 2010 report, Dr. Arun Kachroo, a Board-certified neurologist, stated that an
electromyogram/nerve conduction (EMG/NCV) study showed mild right carpal tunnel
syndrome. There was no evidence of an ulnar nerve injury or cervical radiculopathy on the right.
In a May 1, 2012 report, Dr. Gary Buck, a Board-certified anesthesiologist, noted
appellant’s neck, right arm and leg and back symptoms. He obtained a history of his medical
treatment and reviewed prior diagnostic test results. Dr. Buck listed findings on physical
examination and diagnosed lumbar and cervical radiculopathy. He stated, however, that reflex
sympathetic dystrophy was hard to rule out. Dr. Buck ordered additional diagnostic testing.
In a June 11, 2012 report, Dr. Scott F. Garberman, a surgeon, listed findings on physical
examination. He advised that appellant had right carpal tunnel syndrome and inflammatory
flexor tenosynovitis.
By decision dated August 14, 2012, OWCP denied appellant’s occupational disease claim
finding that the evidence did not establish the claimed work factor.
2

By letter dated September 12, 2012, appellant, through his attorney, requested an oral
hearing before an OWCP hearing representative.
In a January 13, 2012 report, Dr. Garberman reviewed appellant’s job description and
advised that his carpal tunnel syndrome was closely related to his 15 years of working as a letter
carrier.
During a December 27, 2012 oral hearing appellant described his work duties. He sorted,
bundled and cased mail. Appellant prepared the mail for delivery. He carried and moved mail
trays loading them into his delivery truck. Appellant walked up and down steps, and carried and
delivered mail into boxes.2
In a May 1, 2013 decision, an OWCP hearing representative found that appellant
submitted sufficient evidence to establish the claimed employment factors, but he submitted
insufficient rationalized medical evidence to establish that the accepted employment factors
caused the claimed carpal tunnel syndrome condition.
By letter dated June 11, 2013, appellant, through his attorney, requested reconsideration.
In an August 10, 2011 report, Dr. Hillard C. Sharf, Board-certified in internal medicine
and neurology, obtained a history of appellant’s July 27, 2011 employment injuries, medical
treatment, family and social background. He provided findings on physical and neurological
examination and reviewed emergency room records. Dr. Sharf advised that appellant had mild
postconcussion syndrome and cervical strain. It was also likely that appellant had a
temporomandibular joint problem. Dr. Sharf recommended diagnostic testing. In an October 11,
2011 report, he advised, after conducting a physical examination, that appellant continued to
have complaints related to his postconcussion syndrome. Dr. Sharf further advised that appellant
was unable to perform his letter carrier duties.
In a report dated January 26, 2012, Dr. Kimmel obtained a history of appellant’s medical
treatment and family background. He advised that appellant’s complex regional pain syndrome
with severe pain caused his secondary depression and cognitive problems. His condition was
worsened by his lack of strength and balance in the right leg. Appellant could not safely drive to
work. Dr. Kimmel reiterated his prior opinion that he was totally and permanently disabled.
In reports dated February 10 and March 9, 2012, Dr. Max Shenin, a Board-certified
internist, obtained a history that in September 2007 appellant fractured his right heel and
received medical treatment. Dr. Shenin also obtained a history of the July 27, 2011 employment
injuries and appellant’s medical treatment. He listed findings on physical examination and
diagnosed reflex sympathetic dystrophy of the lower limb and disturbance of skin sensation.

2

Appellant testified at the hearing that he retired from the employing establishment in July 2011 following an
injury he sustained during that month. He filed a claim for his July 27, 2011 injury under File No. xxxxxx188 which
OWCP accepted for left postconcussion syndrome, neck sprain and left eye/eyelid contusion. In decisions dated
July 12, 2012 and February 19, 2013, OWCP terminated appellant’s wage-loss compensation on the grounds that he
no longer had any employment-related residuals or disability. The weight of the medical evidence established that
he could return to his date-of-injury letter carrier position and that his cervical herniated nucleus pulposus,
radiculopathy and emotional conditions were not causally related to the July 27, 2011 employment injuries.

3

An unsigned report dated April 20, 2012 stated that a cervical magnetic resonance
imaging (MRI) scan revealed disc dissection of the C5-6 disc with rather well-maintained disc
height and prominent signal changes in the adjacent endplates showing moderate degenerative
changes with narrowing of the right C5-6 neural foramen, the left appeared adequate. There was
a central protrusion of the C5-6 disc. There was also a disc bulge without mass effect of the
C4-5 and C3-4 discs. There was no stenosis. The cervical cord was normal throughout. An
unsigned MRI scan report dated January 11, 2012 stated that the cervical spine had small disc
herniations at C3-4 and C5-6 without narrowing of the spinal canal and neural foramina. There
was straightening of the cervical spine without fracture, listhesis or facet misalignment.
In a May 24, 2013 report, Dr. Garberman reviewed appellant’s medical records and work
activities. He believed there was causal relationship between his carpal tunnel syndrome and job
based on his length of work as a letter carrier and the well-documented repetitive nature of his
job. Dr. Garberman stated that appellant had no other predisposing factors that could have gone
into this constellation of symptoms. The EMG study was conclusive and ruled out any other
secondary findings. Dr. Garberman concluded that appellant’s consistent positive clinical
responses to cortisone injections strictly in the carpal tunnel confirmed his opinion.
In a July 17, 2013 decision, OWCP denied modification of its prior decision. It found the
medical evidence insufficient to establish that the accepted employment factors caused
appellant’s claimed carpal tunnel syndrome.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
3

5 U.S.C. §§ 8101-8193.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

4

medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his belief that the condition was
caused by his employment is sufficient to establish a causal relationship.7
ANALYSIS
OWCP accepted as factual that appellant performed repetitive duties while working as a
letter carrier. While the work duties are established, the Board finds that he failed to establish a
causal relationship between his claimed right carpal tunnel syndrome and the established factors
of his employment.
Dr. Garberman’s reports found that appellant had right carpal tunnel syndrome and
inflammatory flexor tenosynovitis related to his letter carrier work duties. He conducted a
physical examination and reviewed appellant’s job description. Dr. Garberman stated that
appellant had no other predisposing factors as the cause of his symptoms. While he opined that
appellant’s right carpal tunnel syndrome and inflammatory flexor tenosynovitis were the result of
his work duties, he failed to adequately explain how the established employment factors caused
or contributed to these conditions other than offering a generalized opinion that such work
factors contributed to right carpal tunnel syndrome and inflammatory flexor tenosynovitis. As
Dr. Garberman failed to provide a sufficient explanation as to the mechanism of injury, his
general statement that appellant sustained a work-related injury is of limited probative value.8
The reports from Drs. Ross, Kimmel, Kachroo, Buck, Sharf and Shenin addressed
appellant’s physical and emotional conditions, including right carpal tunnel syndrome.
Drs. Kimmel and Sharf opined that he was permanently and totally disabled from work as a letter
carrier. However, the physicians did not provide a medical opinion addressing whether the
established employment factors caused or aggravated appellant’s conditions and resultant
disability. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.9 The Board finds, therefore, that the reports
of Drs. Kimmel, Kachroo, Buck, Sharf and Shenin are insufficient to establish appellant’s claim.
The unsigned diagnostic test reports have no probative medical value in establishing that
appellant sustained right carpal tunnel syndrome causally related to the established employment
factors as the author cannot be identified as a physician.10
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained right carpal tunnel syndrome causally related to the accepted
employment factors. Appellant did not meet his burden of proof.
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5 at 351-52.

7

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

8

S.W., Docket 08-2538 (issued May 21, 2009).

9

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
10

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

5

On appeal, appellant’s attorney contended that the factual and medical evidence of record
is sufficient to establish that appellant sustained employment-related right carpal tunnel
syndrome. For reasons stated above, the Board finds that the weight of the medical evidence
does not establish that appellant sustained right carpal tunnel syndrome causally related to the
established employment factors.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained right carpal tunnel
syndrome in the performance of duty causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 17 and May 1, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 6, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Washington, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2185
Issued: May 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 18, 2010 appellant, through his attorney, filed a timely appeal of an August 4,
2010 merit decision of the Office of Workers’ Compensation Programs which denied his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his cervical
radiculopathy and C6 and C7 disc disease were causally related to the October 16, 2008
employment incident.
FACTUAL HISTORY
This case has previously been before the Board. In an April 21, 2010 decision, the Board
affirmed the Office decisions dated March 12 and July 21, 2009, finding that appellant had not
1

5 U.S.C. § 8101 et seq.

established that he sustained a traumatic injury on October 16, 2008. The facts of the case are set
forth in the Board’s prior decision and incorporated herein by reference.2
On July 20, 2010 appellant, through his representative, filed a petition for reconsideration
and provided a June 18, 2010 medical report by Dr. Philip B. Bovell, an orthopedic surgeon, who
stated that appellant’s diagnosed cervical condition developed from his repetitive work duties
that were performed prior to the October 16, 2008 date of injury. Dr. Bovell explained that
appellant’s work duties consisted of repeated use of the right upper extremity while casing and
carrying mail and that these duties, along with appellant’s failure to recognize his problem,
peaked on the October 16, 2008 date of injury. He further opined that appellant’s daily work
activities aggravated the preexisting underlying condition. Dr. Bovell ultimately concluded that
the gradual development of appellant’s cervical condition, which he diagnosed as cervical
radiculopathy and compression, as well as disc syndrome at C6-7, resulted from the repeated use
of excessive function on walking, standing, carrying mail on shoulder repeatedly, over lifting at
work and the overuse of shoulders on casing.
By decision dated August 4, 2010, the Office denied modification of the Board’s
April 21, 2010 decision and found that appellant failed to establish that his cervical condition
was causally related to the October 16, 2008 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Act3 has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative, and substantial evidence4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
2

Docket No. 09-2043 (issued April 21, 2010).

3

5 U.S.C. §§ 8101-8193.

4

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

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
6

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

7

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

8

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

2

employment incident occurred as alleged but fail to show that his disability or condition relates
to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.10 Rationalized medical opinion evidence is medical evidence which includes
a physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incidents.11 The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the employee.12
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a neck and back injury on October 16, 2008, as alleged. The Office accepted that on
October 16, 2008 his right arm muscles and wrist were extremely sore and tender when he pulled
down his route and loaded his truck. The record further supports that appellant sustained a
diagnosed cervical condition, but it does not contain a rationalized medical opinion establishing
that this condition resulted from the October 16, 2008 employment incident.
Following the Board’s last review of this case, appellant submitted a medical report by
Dr. Bovell who noted appellant’s date of injury as October 16, 2008 and diagnosed his cervical
condition as cervical radiculopathy with compression and disc syndrome at C6-7. While an
accurate date of injury is reported, Dr. Bovell ultimately concludes that appellant’s diagnosed
cervical conditions resulted from repeatedly carrying mail on his shoulder, overlifting and the
overuse of shoulder on casing at work. He further explains that appellant’s condition was
brought on by repeatedly performing his work duties, which started before the October 16, 2008
date of injury, and that these daily work activities aggravated a preexisting underlying condition.
Dr. Bovell’s history of injury remains deficient because, while referencing repetitive job duties,
he did not actually describe the frequency of any specific work activity. Also, while he
acknowledges the October 16, 2008 incident, Dr. Bovell ultimately attributes the cause of
appellant’s cervical condition to a gradual development that reached its peak on
October 16, 2008.
The medical evidence of record is ultimately insufficient to establish appellant’s claim
because Dr. Bovell’s reports fail to provide a rationalized medical opinion explaining how

9

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

10

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

11

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

12

B.B., 59 ECAB 234 (2007); Woodhams, id. at 345, 352. D.S., Docket No. 09-860 (issued November 2, 2009).

3

appellant’s specific work duties on the date alleged physiologically caused the diagnosed
conditions.13
The issue of causal relationship is a medical question that must be established by
probative medical opinion from a physician.14 As appellant did not submit probative medical
evidence establishing that his cervical condition is causally related to the October 16, 2008 work
event, he did not meet his burden of proof to establish a traumatic injury on October 16, 2008.15
Appellant may submit additional evidence, together with a formal written request for
reconsideration, to the Office within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an injury on October 16, 2008, as alleged.

13

Paul Foster, 56 ECAB 208 (2004); J.F., Docket No. 09-1061 (issued November 17, 2009).

14

Apgar, supra note 8. W.W., Docket No. 09-1619 (issued June 2, 2010).

15

To the extent that medical evidence of record refers to appellant’s repetitive lifting, carrying mail and casing
mail at work that caused an overuse of his shoulder occurring over more than one shift, rather than a single incident,
the medical evidence implicates an occupational disease claim.

4

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5