United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF AGRICULTURE, SOIL
CONSERVATION SERVICE, Orono, ME,
Employer
__________________________________________

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

Docket No. 17-1040
Issued: January 8, 2018

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 April 13, 2017 appellant filed a timely appeal from a November 4, 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.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 26, 2016.

1
2

5 U.S.C. § 8101 et seq.

On appeal appellant inquired as to why he could not submit further evidence to the Board. The Board is
precluded by regulation from considering evidence that was not in the case record at the time OWCP issued its final
decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 29, 1989 appellant, then a 39-year-old biologist, filed a traumatic injury claim
(Form CA-1) alleging that, while carrying gear around a waterfall on August 24, 1989, he
slipped on a branch and sprained his ankle. OWCP accepted his claim for right calcaneal spur,
right plantar fasciitis, anxiety, and prolonged depressive reaction.
On January 8, 1993 appellant underwent surgery to remove a bone spur, and he returned
to limited-duty work on March 2, 1993. However, he sustained a recurrence of his injury on
April 8, 2003, stopped work on August 24, 2003 and has not worked since that date. OWCP
accepted appellant’s recurrence claim by decision dated July 17, 2003.
In a March 31, 2015 report, Dr. Michael Bruehl, a Board-certified family practitioner,
noted that appellant had severe bilateral pes planus with loss of mobility both of the arch of the
foot and of the ankles. He opined that appellant was incapable of standing more than a few
minutes at a time. Dr. Bruehl further noted that appellant was also losing his capacity to climb
stairs. He noted that appellant required narcotic analgesics and gabapentin. With regard to
diagnosis of the work-related injury and causal relationship between appellant’s current findings
on examination and the accepted employment-related injury, Dr. Bruehl referred to the reports of
Dr. Gregory Pomeroy, a Board-certified orthopedic surgeon, and Dr. Ray Corbin, a podiatrist.
In a July 19, 2002 report, Dr. Pomeroy noted that appellant complained of bilateral hind
foot pain, worse on the left, which started after numerous sprains while working in the field as a
biologist. He diagnosed grade 2 posterior tibial tendon insufficiency, which he attributed to
multiple sprains in the field. Dr. Corbin, in a March 3, 2003 report, diagnosed posterior tibial
tendinitis and dysfunction as well as sinus tarsal impingement and pes planus, bilateral. He
indicated that appellant noted several ankle inversion injuries while working as a biologist.
Dr. Corbin noted that appellant did have extremely flat feet and this may have predisposed him
to being more susceptible to these injuries. He restricted appellant to standing and ambulation 15
to 30 minutes at a time, and noted that this was a permanent restriction.
On October 28, 2015 OWCP referred appellant to Dr. Philip R. Kimball, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In an October 28, 2015 report,
Dr. Kimball listed appellant’s diagnoses as chronic pain disorder, chronic anxiety and depression
(under treatment since 2003), planovalgus deformity and pes planus (flat feet) advanced,
bilateral, with pain, limited motion, and altered gait. He noted appellant’s history of multiple
sprains of both feet and ankles, and that, according to the statement of accepted facts (SOAF),
appellant’s accepted August 24, 1989 employment injury caused an aggravation of his right
plantar fasciitis. Dr. Kimball also noted that appellant had undergone right plantar fasciotomy
with spur excision on January 8, 1993. He noted that appellant had a long history of feet and
ankle pain. Dr. Kimball opined that appellant’s right heel spur and plantar fasciotomy condition
on the right side more likely than not resolved within a year of the January 8, 1993 surgery. He
related that it was unknown whether appellant’s long-term flat feet condition was aggravated by
his employment or whether it was related in any manner to his work as a biologist. Dr. Kimball
concluded that it was reasonable to expect that appellant’s right plantar fasciitis on the right side
recovered without additional treatment at some point in late 2003. He also noted that appellant’s
current complaints were to the left foot and ankle, which were not listed on the SOAF.

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Dr. Kimball did opine that appellant was unable to return to work full time as a biologist due to
the advanced planovalgus deformities with recognized degenerative changes in both feet.
However, he noted that there was no indication that his accepted plantar fasciitis contributed in
any manner to his incapacity to return to his full duties as a biologist, as he probably recovered
from the effects of plantar fasciitis in late 2003 or early 2004. Dr. Kimball noted that no specific
treatment was recommended for appellant’s planovalgus feet at this time except for the proper
wearing of footwear and using assists in ambulation as necessary. He also noted that appellant
continued to be treated for anxiety and depression, which he did not see listed in the SOAF.
On November 4, 2015 Dr. Mitchell Pulver, a Board-certified psychiatrist, conducted a
second opinion evaluation. In a report dated November 16, 2015, he diagnosed major
depression, single episode, moderate-to-severe, bilateral ankle injuries and left hand injury, and
occupational stress. Dr. Pulver opined that appellant’s depression was the direct result of the
injuries he sustained while working for the employing establishment, which had resulted in
physical limitations and pain and in turn caused his depression. He did not expect appellant’s
depression to improve unless his pain and physical limitations markedly decreased. Dr. Pulver
opined that appellant was not capable of working at this time due to ankle injuries and resulting
pain and limited function, as well as subsequent depression. He noted that appellant’s prognosis
for recovery from depression was dependent on recovery from his ankle injuries, as the
depression was a direct result of the pain and limited functioning due to his ankle injuries. In a
November 15, 2015 work capacity evaluation, psychiatric/psychological conditions (OWCP-5a),
Dr. Pulver determined that appellant was unable to work due to a combination of medical
problems -- bilateral ankle injuries as well as major depression with low energy, impaired
concentration.
In an April 3, 2016 report, Dr. Pulver noted that, while Dr. Kimball had related that
appellant was currently suffering from planovalgus deformities and not bilateral ankle injuries,
Dr. Kimball’s report did not alter his opinion that appellant’s psychological condition was due to
his foot pain and the functional limitation of his feet. He related that it did not matter what exact
medical diagnosis or cause was responsible for appellant’s foot pain and functional limitation.
In an April 15, 2016 report, Dr. Bruehl reiterated the statements set forth in his prior
reports.
On April 27, 2016 OWCP proposed terminating appellant’s wage-loss compensation and
medical benefits as the medical evidence of record established that appellant no longer had any
residuals or continued disability from work as a result of the accepted August 24, 1989
employment injury. Appellant was afforded 30 days to submit additional evidence in support of
his claim.
By letter dated May 13, 2016, appellant requested an additional 30 days to reply to the
proposed termination of benefits in order to schedule needed medical appointments. He also
resubmitted evidence already in the record.
On June 2, 2016 OWCP finalized the termination of appellant’s wage-loss compensation
and medical benefits. It found that the weight of the medical evidence rested with the opinion of
Dr. Kimball and that, effective June 26, 2016, appellant’s compensation would be terminated as

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he no longer had any residuals related to his employment-related medical condition. OWCP
noted that Dr. Pulver’s report failed to establish that appellant’s diagnosed psychological
condition was the direct result of his accepted employment injury, as he noted that appellant’s
symptoms were entirely due to the unrelated medical condition of planovalgus deformities of
both feet.
Appellant requested reconsideration on June 8, 2016. He related that his right foot and
ankle conditions had become more limiting and were the main reason for his incapacity and need
for additional pain management and psychological treatment. Appellant contended that the
relationship of the development of the right heel spur and plantar fasciitis to the original foot
injury was well documented.
Appellant submitted multiple documents that were already of record, including a copy of
his claim form, a duplicate statement dated July 23, 1992 from his supervisor, and his own
April 28, 1993 statement. He also submitted medical evidence previously of record.
By decision dated November 4, 2016, OWCP denied modification of its June 2, 2016
decision. It noted that appellant had not established that OWCP improperly relied on the report
of the second opinion physician to terminate compensation benefits.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.3 Having determined that an employee has a
disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7

3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Roger G. Payne, 55 ECAB 535 (2004).

6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

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ANALYSIS
OWCP accepted appellant’s claim for right calcaneal spur, right plantar fasciitis, anxiety,
and prolonged depressive reaction.
On April 27, 2016 OWCP proposed terminating appellant’s wage-loss compensation and
medical benefits because the medical evidence of record established that he no longer had any
continued disability or residuals of his accepted employment-related conditions. By decision
dated June 2, 2016, it finalized the termination of wage-loss compensation and medical benefits,
effective June 26, 2016. OWCP denied modification of the June 2, 2016 decision on
November 4, 2016.
The Board finds that OWCP properly terminated appellant’s medical benefits with regard
to appellant’s accepted right calcaneal spur and right plantar fasciitis conditions. However, the
Board further finds that OWCP improperly terminated appellant’s wage-loss compensation and
medical benefits with regard to the accepted emotional conditions of anxiety and prolonged
depressive condition.
With regard to appellant’s physical conditions, Dr. Bruehl, appellant’s treating physician,
opined in reports dated March 31 and April 15, 2015 that appellant was incapable of returning to
work as he had severe bilateral pes planus with loss of mobility both of the arch of the foot and
ankles and was unable to stand for more than a few minutes at a time. With regard to the causal
relationship of appellant’s condition, he referred to a July 19, 2002 report by Dr. Pomeroy and a
March 3, 2003 report by Dr. Corbin. Dr. Bruehl’s opinion is of diminished probative value. He
never offered his own opinion as to whether appellant’s current right foot condition in March and
April 2015 was still causally related to appellant’s accepted employment injury. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.8 Instead, Dr. Bruehl referenced
opinions from Drs. Pomeroy and Corbin, which were over a decade old, and did not address
appellant’s condition in 2015.
The weight of the medical evidence rests with the opinion of Dr. Kimball, the second
opinion physician, who opined that appellant’s right heel spur and plantar fasciitis more likely
than not resolved within a year of his January 8, 1993 right plantar fasciotomy and heel spur
surgery. Dr. Kimball explained that appellant’s current complaints were to the left foot and
ankle.
However, appellant also had advanced bilateral planovalgus deformities with
degenerative changes, which limited his ability to return to full-time work. Dr. Kimball further
explained that there was no evidence that appellant’s accepted plantar fasciitis contributed in any
way to his inability to return to full duties. The Board finds that the second opinion of
Dr. Kimball was sufficiently rationalized to establish that appellant’s accepted conditions of right
calcaneal heel spur and plantar fasciitis had resolved.9 Because appellant no longer had residuals
causally related to his accepted conditions of right calcaneal bone spur and right plantar fasciitis,

8

See O.L., Docket No. 16-0616 (issued October 24, 2016).

9

A.H., Docket No. 16-1828 (issued August 17, 2017).

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the Board finds that OWCP properly terminated appellant’s entitlement to medical benefits for
these conditions.
The Board further finds, however, that OWCP did not properly terminate appellant’s
wage-loss compensation and medical benefits with regard to the accepted emotional conditions
of anxiety and prolonged depressive reaction.
Dr. Kimball related that appellant continued to be treated for anxiety and depression,
which were conditions not noted in the SOAF.
Appellant was then referred for a second opinion evaluation by Dr. Pulver, a Boardcertified psychiatrist. In a report dated November 16, 2015, Dr. Pulver concluded that
appellant’s depression was the direct result of the injuries he sustained while working for the
employing establishment which resulted in his physical limitations and pain which in turn caused
his depression. He concluded that appellant was incapable of working due to his ankle injuries
and attendant pain and limited function, as well depression. In terminating appellant’s benefits
OWCP determined, however, that Dr. Pulver’s report failed to establish that appellant’s
diagnosed psychological condition was the direct result of his accepted work injury. However, it
had already accepted appellant’s condition for anxiety and prolonged depressive condition.
Once OWCP accepts appellant’s claim for a particular condition, it may not terminate
wage-loss compensation without establishing that the disability has ceased or is no longer related
to appellant’s employment.10 To terminate medical treatment, OWCP must establish that
appellant no longer has residuals of the stated medical condition which requires further
treatment.11 Its burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.12
Dr. Pulver did not opine that appellant’s accepted anxiety and depression conditions had
in fact resolved. There is no rationalized medical opinion evidence of record establishing that
appellant’s accepted emotional conditions had ceased or were no longer related to appellant’s
employment.
Accordingly, the Board finds that OWCP properly terminated appellant’s medical
benefits with regard to the accepted physical conditions of right calcaneal spur and right plantar
fasciitis. The Board further finds that OWCP improperly terminated appellant’s wage-loss
compensation and medical benefits with regard to the accepted emotional conditions of anxiety
and prolonged depressive condition.
CONCLUSION
OWCP met its burden of proof to terminate appellant’s medical benefits, effective
June 26, 2016, with regard to his right calcaneal spur and right plantar fasciitis. However, it did
10

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

11

Pamela K. Guesford, 53 ECAB 726 (2002).

12

Jaja K. Asaramo, 55 ECAB 200 (2004).

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not meet its burden of proof to terminate appellant’s wage-loss compensation and medical
benefits with regard to his anxiety and prolonged depression.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 4, 2016 is affirmed in part and reversed in part.
Issued: January 8, 2018
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 07-2019
Issued: January 11, 2008

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 July 31, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 22, 2007 merit decision concerning his entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a nine percent permanent impairment of his right arm, for which he received a schedule award.
FACTUAL HISTORY
The Office accepted that on February 1, 2003 appellant, then a 48-year-old mail carrier,
sustained a sprain/strain of his right shoulder and upper arm due to opening the door of his
delivery vehicle while seated. Appellant did not stop work but began working in a limited-duty
position for the employing establishment. He participated in regular physical therapy sessions.

In March 2003, Dr. Olayinka Ogunro, an attending Board-certified orthopedic surgeon,
diagnosed impingement syndrome of the right shoulder and carpal tunnel syndrome of the right
wrist.1 The findings of a February 27, 2003 magnetic resonance imaging scan of the right
shoulder showed moderate supraspinatus tendinitis associated with a partial articular surface tear.
The findings of a July 17, 2003 electromyogram and nerve conduction testing of both arms
showed bilateral median nerve mononeuropathies.
On October 23, 2003 Dr. Ogunro noted that appellant reported that he had no right
shoulder pain and felt that he had good right shoulder mobility. He indicated that appellant had a
negative Tinel’s sign and Phalen’s test bilaterally but diagnosed bilateral carpal tunnel syndrome.
On February 12, 2004 Dr. Ogunro noted that appellant reported that he had no right shoulder
pain and indicated that the examination showed that right shoulder motion was normal.
On August 3, 2006 Dr. Ogunro indicated that appellant complained of bilateral shoulder
tendinitis with restricted motion. He indicated that range of motion testing showed that appellant
had a two percent permanent impairment due to 150 degrees of flexion, a two percent
impairment due to 20 degrees of extension, a one percent impairment due to 20 degrees of
adduction, a two percent impairment due to 140 degrees of abduction, a two percent impairment
due to 50 degrees of internal rotation and a zero percent impairment due to 60 degrees of
external rotation.2
On March 6, 2007 Dr. Henry Mobley, an Office medical adviser and Board-certified
internist, reviewed the medical evidence of record, including the evaluations of Dr. Ogunro and
determined that appellant sustained a nine percent permanent impairment of his right shoulder
due to limited motion under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001). He indicated that the date of maximum medical
improvement was August 3, 2006.
In a May 22, 2007 decision, the Office granted appellant a schedule award for a nine
percent permanent impairment of his right arm. The award ran for 28.08 weeks from August 3,
2006 to February 15, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 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
1

Dr. Ogunro indicated that appellant had a positive Tinel’s sign on the right and diminished sensation to light
touch over the median innervated digits, but that two-point discrimination testing was normal.
2

Dr. Ogunro also provided impairment calculations for appellant’s left shoulder and right knee. On December 4,
2006 he diagnosed bilateral carpal tunnel syndrome and indicated that appellant had a 10 percent permanent
impairment of each arm due to sensory loss associated with the median nerve.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

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the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5 It is well
established that in determining the amount of a schedule award for a member of the body that
sustained an employment-related permanent impairment, preexisting impairments of the body are
to be included.6
ANALYSIS
The Office accepted that on February 1, 2003 appellant sustained a sprain/strain of his
right shoulder and upper arm due to opening the door of his delivery vehicle while seated. In a
May 22, 2007decision, it granted appellant a schedule award for a nine percent permanent
impairment of his right arm.
On March 6, 2007 Dr. Mobley, an Office medical adviser and Board-certified internist,
reviewed the medical evidence of record, including the evaluations of Dr. Ogunro, an attending
Board-certified orthopedic surgeon. The Board finds that Dr. Mobley properly determined that
appellant had a nine percent permanent impairment of his right arm which was comprised of a
two percent permanent impairment due to 150 degrees of flexion, a two percent impairment due
to 20 degrees of extension, a one percent impairment due to 20 degrees of adduction, a two
percent impairment due to 140 degrees of abduction and a two percent impairment due to 50
degrees of internal rotation.7 Dr. Mobley indicated that the date of maximum medical
improvement was August 3, 2006, the date of Dr. Ogunro’s evaluation.
Dr. Ogunro also provided impairment calculations for appellant’s left shoulder and right
knee on August 3, 2006. However, the Office has not accepted that appellant sustained an
employment-related left shoulder or right knee injury. On December 4, 2006 Dr. Ogunro
diagnosed bilateral carpal tunnel syndrome and indicated that appellant had a 10 percent
permanent impairment of each arm due to sensory loss associated with the median nerve. It also
has not been accepted that appellant sustained employment-related carpal tunnel syndrome. The
record does not contain any claim by appellant that he sustained an employment-related right
knee, left shoulder or carpal tunnel condition. Moreover, there is no evidence in the record that
he had an impairment due to a right carpal tunnel condition which preexisted his February 1,
2003 employment injury.8 There is no basis to include these conditions in an assessment of
appellant’s entitlement to schedule award compensation.
5

Id.

6

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b. (June 1993). This portion of Office procedure provides that the impairment rating of a
given scheduled member should include, “any preexisting permanent impairment of the same member or function.”
7

See A.M.A., Guides 476-77, 479, Figures 16-40, 16-43 and 16-46. Dr. Mobley properly added these values to
yield a nine percent impairment.

8

See supra note 6 and accompanying text.

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Appellant has not submitted any medical evidence showing that he has more than a nine
percent permanent impairment of his right arm. Therefore, the Office properly granted him
schedule award compensation for a nine percent permanent impairment of his right arm.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a nine percent permanent impairment of his right arm, for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 22, 2007 decision is affirmed.
Issued: January 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Columbus, OH, Employer
__________________________________________

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

Docket No. 11-1296
Issued: March 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 2, 2011 appellant filed a timely appeal from a February 3, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
cardiac condition in the performance of duty on November 23, 2010.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its February 3, 2011
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

FACTUAL HISTORY
On December 20, 2010 appellant, then a 47-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on November 23, 2010 he sustained a heart attack when
he experienced chest pains while walking from the flight line to the hangar after grounding
aircraft. A witness to the incident stated that appellant complained of chest pain when walking
from the flight line to the hangar. Appellant received medical care and stopped work that same
date. He notified his supervisor on December 20, 2010.
By letter dated December 28, 2010, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
In a January 21, 2011 narrative statement, appellant reported that on November 23, 2010
at 2:00 p.m. he was moving an aircraft to the flight line area and disconnecting a tow bar when
he experienced tightness in his chest and upper back. He stated that his cardiologist advised that
the mental stress and physical requirements of his employment, such as climbing, lifting and
operating in confined areas with extreme temperatures, played a major role in causing his heart
attack. Appellant previously suffered a heart attack in July 2008 from which he made a full
recovery. He stated that he did not have any prior symptoms leading up to his heart attack on
November 23, 2010.
In reports dated December 7, 2009 to August 11, 2010, Dr. Amjad Iqbal, Board-certified
in cardiovascular disease, diagnosed appellant with coronary artery disease, hyperlipidemia and
mild to moderate degree of inferior ischemia.
A November 23, 2010 radiology examination, by Dr. William Murphy, a Board-certified
diagnostic radiologist, noted that appellant’s chest images showed that the heart appeared normal
in size with no acute infiltrates or congestion.
In a November 25, 2010 report, Dr. A. El Ghamry Sabe, a treating physician, stated that
appellant experienced chest pain over the last three days which had resolved with sublingual
nitroglycerin. Appellant was admitted to the emergency room on November 25, 2010 after he
woke up at 12:30 a.m. with retrosternal chest pain that radiated to his neck and jaw which was
not resolved by nitroglycerin. Dr. Sabe noted that appellant had a history of coronary artery
disease and an inferior myocardial infarction on July 26, 2008 which resulted in an emergency
cardiac catheterization and angioplasty of the totally occluded right coronary artery. Appellant
also experienced recurrent chest pain in December 2009. Dr. Sabe performed a left cardiac
catheterization, stent to the left anterior descending artery and placement of an intra-aortic
balloon pump. He diagnosed acute anterior myocardial infarction and single vessel occlusive
coronary artery disease.
In a November 25, 2010 electrocardiogram (ECG) report, Dr. Sabe noted sinus
bradycardia and segment (ST) elevation. He reported that appellant’s ECG was abnormal when
compared with his November 23, 2010 ECG and that significant changes had occurred.

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In a November 25, 2010 medical report, Dr. Jody Wozniak, a physician of osteopathic
medicine, reported that appellant was admitted to the emergency room with a history of coronary
artery disease and myocardial infarction. She noted a past surgical history of right and left knee
arthroscopy and cardiac cath with angioplasty done in July 2008. Dr. Wozniak diagnosed acute
ST elevated myocardial infarction.
In a November 28, 2010 medical report, Dr. Joseph Surmitis, Board-certified in internal
medicine, reported that appellant was admitted to the emergency room on November 25, 2010
with a history of right coronary artery stenting, anterior wall myocardial infarction and
hypercholesterolemia. He noted that appellant quit smoking two years ago. Dr. Surmitis
diagnosed anterior wall myocardial infarction, hypercholesterolemia, bare metal stenting of the
mid left anterior descending, 60 percent residual right coronary artery stenosis, cardiomyopathy
and remote tobaccoism. He stated that appellant could return to work on January 3, 2011.
In a November 30, 2010 progress note, Dr. Iqbal reported that appellant had markedly
aggressive coronary artery disease and mild hyperlipidemia.
On January 3, 2011 appellant submitted a claim for compensation Form CA-7
documenting leave buyback for the period November 25 to December 30, 2010.
In a January 5, 2011 attending physician’s report (Form CA-20), Dr. Iqbal reported that
appellant presented with angio symptoms, myocardial infarction and coronary artery disease. He
checked the box marked “yes” when asked if he believed that appellant’s condition was caused
or aggravated by his employment activity and noted that the condition was caused by stress and
physical labor. Dr. Iqbal further stated that cardiac episodes can be exacerbated by stress and
physical labor and that he expected long-term cardiac disease as a result of appellant’s condition.
He noted that appellant was totally disabled from November 23, 2010 to January 3, 2011 and
stated that he had been treating appellant since July 26, 2008.
In a January 5, 2011 Duty Status Report (Form CA-17), Dr. Iqbal reported that appellant
experienced chest pain, shortness of breath and a heart attack after he ground a moving aircraft.
He diagnosed progressive coronary disease.
By decision dated February 3, 2011, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that the injury was related to the established November 23,
2010 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 or specific condition for which compensation is claimed are causally related to the

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that the November 23, 2010 incident occurred as alleged. The issue is
whether appellant established that the incident caused a cardiac condition. After careful
consideration, the Board finds that he did not submit sufficient medical evidence to support that
his cardiac condition is causally related to the November 23, 2010 employment incident.8
Appellant submitted medical reports from Dr. Iqbal dated December 7, 2009 to
August 11, 2010, which diagnosed coronary artery disease, hyperlipidemia and mild to moderate
degree of inferior ischemia. These medical reports are of no probative value in establishing
causation because they predate the November 23, 2010 employment incident. They only show
appellant’s preexisting cardiac condition.

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton supra note 3 at 1143 (1989).

6

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

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

4

In a November 30, 2010 progress note, Dr. Iqbal reported that appellant had markedly
aggressive coronary artery disease and mild hyperlipidemia. In a January 5, 2011 attending
physician’s report and duty status report, he reported that appellant experienced chest pain,
shortness of breath and a heart attack while walking to the hangar. Dr. Iqbal diagnosed angio
symptoms, myocardial infarction and coronary artery disease. He checked the box marked “yes”
when asked if he believed that appellant’s condition was caused or aggravated by his
employment activity and noted that the condition was caused by stress and physical labor.
Dr. Iqbal further stated that cardiac episodes can be exacerbated by stress and physical labor and
that he expected long-term cardiac disease as a result of appellant’s condition.
The Board finds that the opinion of Dr. Iqbal is not well rationalized. Dr. Iqbal did not
provide a detailed history of the November 23, 2010 employment incident and merely repeated
appellant’s factual assertions. While his reports provide a medical history of preexisting
coronary artery disease, he failed to adequately explain how the November 23, 2010 employment
incident caused or aggravated appellant’s cardiac condition. Though Dr. Iqbal concluded that
causal connection exists between appellant’s injury and his job duties, his reports provide no
support for that conclusion. He only generally stated that stress and physical labor were the
cause of appellant’s condition. Dr. Iqbal failed to specifically describe what kind of physical
labor and stress appellant engaged in on November 23, 2010 and how this caused or aggravated
his cardiac condition. His assertion that cardiac episodes can be exacerbated by stress and
physical labor is speculative in nature and of limited probative value.9 Medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet an
employee’s burden of proof.10 The opinion of a physician supporting causal relationship must
rest on a complete factual and medical background supported by affirmative evidence, address
the specific factual and medical evidence of record and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of
employment.11 Dr. Iqbal’s reports do not meet that standard and are insufficient to meet
appellant’s burden of proof.
In a November 23, 2010 radiology examination, Dr. Murphy reported that appellant’s
chest images showed that the heart appeared normal in size with no acute infiltrates or
congestion. The Board finds this medical evidence to be of little probative value. Appellant
alleges that his cardiac condition occurred on November 23, 2010 while in the performance of
duty. Dr. Murphy’s report, however, states that appellant’s chest x-ray appeared normal on that
date and thus provides no diagnoses that can be causally connected to the November 23, 2010
employment incident.
The remaining medical evidence of record is also insufficient to establish causal
relationship. In a November 25, 2010 medical report, Dr. Sabe reported that appellant was
admitted to the emergency room that same date when he woke with retrosternal chest pain. He
noted that appellant had experienced chest pain over the last three days and that his ECG was
9

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

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

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

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abnormal and showed significant changes when compared to his November 23, 2010 ECG.
Dr. Sabe noted a history of coronary artery disease, an inferior myocardial infarction on July 26,
2008 with an emergency cardiac catheterization and angioplasty of the totally occluded right
coronary artery. He diagnosed acute anterior myocardial infarction and single vessel occlusive
coronary artery disease. In a November 25, 2010 medical report, Dr. Wozniak reported that
appellant was admitted to the emergency room with a history of coronary artery disease and
myocardial infarction. She diagnosed acute ST elevated myocardial infarction. In a
November 28, 2010 medical report, Dr. Surmitis diagnosed anterior wall myocardial infarction,
hypercholesterolemia, bare metal stenting of the mid left anterior descending, 60 percent residual
right coronary artery stenosis, cardiomyopathy and remote tobaccoism.
While the above medical records address appellant’s treatment and injury, the physicians
failed to state any opinion on causal relationship between his cardiac condition and the
November 23, 2010 employment incident. Appellant’s physicians provided a detailed history of
coronary artery disease and myocardial infarction but did not explain how appellant’s condition
was caused or aggravated by the employment incident. Further, none of appellant’s physician’s
specifically stated that his coronary artery disease or myocardial infarction occurred on
November 23, 2010. Appellant reported chest pain on that date but that, by itself, is not a
medical diagnosis. While Dr. Sabe addressed a November 23, 2010 ECG report, the record
before the Board does not contain this report or any other medical evidence establishing a
cardiac condition from the date of the employment incident. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.12 Without medical reasoning
explaining how the accepted employment incident caused his cardiac condition, the reports are
not sufficient to meet appellant’s burden of proof.13
On appeal, appellant contends that the mental stress and physical requirements of his
employment caused his cardiac condition on November 23, 2010. His honest belief that work
caused his medical problem is not in question. But that belief, however, sincerely held, does not
constitute the medical evidence necessary to establish causal relationship. In the instant case, the
record is without rationalized medical evidence establishing that the diagnosed medical condition
is causally related to the accepted November 23, 2010 employment incident.
Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.14 Appellant may submit additional evidence,
together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

12

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

13

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

14

20 C.F.R. § 501.2(c)(1).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained coronary artery disease and myocardial infarction on November 23, 2010 in the
performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 3, 2011 is affirmed.
Issued: March 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Lincoln, NE, Employer
__________________________________________

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

Docket No. 09-1806
Issued: May 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 7, 2009 appellant filed a timely appeal from the June 29, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied modification of her September 2,
2008 schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant has more than a 22 percent impairment of her left lower
extremity or more than a 9 percent impairment of her right lower extremity.
FACTUAL HISTORY
On July 24, 1992 appellant, then a 39-year-old fiscal accounts clerk, sustained an injury
in the performance of duty when she slipped and fell on a wet floor. The Office accepted her
claim for bilateral knee contusions and bilateral meniscal tears. Appellant underwent a partial

medial meniscectomy on both knees. The Office found that she had preexisting bilateral mild
chondromalacia.
On October 17, 1995 appellant received a schedule award for a six percent impairment of
her left lower extremity and a five percent impairment of her right lower extremity.
On January 17, 2007 appellant underwent additional left knee surgery, including a partial
medial meniscectomy, patellofemoral chondroplasty, medial femoral chondroplasty and lateral
femoral-tibial chondroplasty. She filed a claim for an increased schedule award.
On December 3, 2007 Dr. Donald J. Walla, appellant’s orthopedic surgeon, reviewed
x-rays taken on August 21, 2007 and found a 37 percent impairment of each lower extremity due
to a 1 millimeter (mm) medial compartment joint space, a 2 mm patellofemoral joint space on
the merchant view and a partial medial meniscectomy. He noted that her most recent physical
examination on August 21, 2007 showed her to have full range of motion of both knees.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Andrew S. Lee, a physiatrist, for a second opinion. On April 2, 2008
Dr. Lee noted that no x-ray reports were available for review; however, appellant provided a
CD-ROM with standing bilateral knee x-rays dated August 21, 2007. “Using the software the
medial joint spaces were able to be measured and confirmed in the radiology department. The
right knee measured 3 [mm], resulting in a seven percent lower extremity impairment rating.
The left measured 2 [mm], resulting in a 20 percent impairment rating.” Dr. Lee combined
impairment due to arthritic changes with the diagnosis-based estimate of 2 percent bilaterally for
partial medial meniscectomy and concluded that appellant had a 22 percent impairment of the
left lower extremity and a 9 percent impairment of the right lower extremity.
On June 13, 2008 Dr. Lee offered a supplemental report:
“Repeat bilateral weight bearing x-rays were obtained. They were obtained with
a film [to] camera distance of 90 cm [centimeters] with the beam level to the joint
space and parallel to the joint surface. The x-rays were reviewed on the computer
screen. The software was used to measure the joint space. That is to say the
mouse was used to click between the margins of the joint space. A line
intersecting these two points shows up on the screen. The computer calculates the
distance of this joint space. Therefore, the computer would give the same joint
space measurement whether it is on a 13 inch or a 30 inch screen. The
measurements were 0.3 cm on the right and 0.24 cm on the left, which is rounded
to the nearest mm which would be 2 mm. Thus, the same lower extremity
impairment ratings would be obtained as in the reports dated April 2, 2008.”
Dr. Lee reported that he documented full range of knee motion with extension to 179
degrees on the right and 180 degrees on the left.
On July 6, 2008 the Office medical adviser found that Dr. Lee’s impairment ratings were
acceptable. On September 2, 2008 the Office issued a schedule award for an additional
16 percent impairment of the left lower extremity (total 22 percent) and an additional 4 percent
impairment of the right lower extremity (total 9 percent).
2

On November 10, 2008 Dr. Walla reported that the August 12, 2008 x-rays of the left
knee showed a complete loss of the medial joint space compartment to 0 mm, a 50 percent
impairment of the extremity. They also showed a 2 mm narrowing at the patellofemoral space
on the merchant view, a 10 percent impairment of the extremity. Appellant’s partial medial
meniscectomy added two percent. Dr. Walla concluded that appellant had a 62 percent
impairment of the left lower extremity.
Dr. Walla reported that x-rays of the right knee showed a 1 mm joint space of the medial
compartment, a 25 percent impairment of the extremity. They showed a 2 mm space of the
patellofemoral joint on the merchant view, a 10 percent impairment of the extremity.
Appellant’s partial medial meniscectomy added two percent. Dr. Walla concluded that appellant
had a 37 percent impairment of the right lower extremity.
Appellant requested reconsideration and submitted CD-ROMs of the x-rays obtained on
June 12 and August 12, 2008. She argued that the x-rays obtained by Dr. Lee on June 12, 2008
were not weight bearing, as reported.
On February 16, 2009 the Office medical adviser noted a conflict. A radiologist
described arthritis in the June 12, 2008 x-rays as mild, while Dr. Walla’s measurements from the
August 12, 2008 x-rays -- only two months later -- showed nearly end-stage joint-space
narrowing. The medical adviser recommended referral to an evaluator who would measure the
x-rayed joint-space intervals with a ruler and who could also use a goniometer to consider the
reported varus alignment. He volunteered to review the x-rays himself, if that were permissible.
If not, the medical adviser stated that both sets “must be reviewed” by a local radiologist who
would make the required measurements. “Until this conflictive issue is resolved, a decision
regarding possible increases in the schedule awards due to right and left knee conditions cannot
be made.”
In a decision dated February 20, 2009, the Office reviewed the merits of appellant’s claim
and denied modification of its prior decision. It explained that no modification of the previous
schedule award was possible using the evidence appellant submitted with her request for
reconsideration.
Appellant again requested reconsideration. She stated that she was giving the Office
medical adviser permission to measure both sets of x-rays. Appellant noted that the Office
already had the CD-ROMs of the x-rays. She reminded the Office that the June 2008 x-rays
were not weight bearing.
On April 3, 2009 the Office medical adviser stated that the submitted CD-ROMs could
not be used to fulfill the requirements for evaluating impairment due to arthritis. “This input
permits no revision of the impairment ratings for either lower extremity.”
In a decision dated June 29, 2009, the Office reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that Dr. Walla’s November 10, 2008 report
was duplicative of a report previously considered. The Office further found that the CD-ROMs
submitted were not standard x-ray films and could not be used to evaluate impairment due to
arthritis.

3

On appeal, appellant points out that the Office medical adviser misreported one of
Dr. Walla’s measurements. She again argues that the June 12, 2008 x-rays were not weight
bearing:
“As stated in my reconsideration letters, one of the x-ray machines was down
because of the humidity from rains in June of 2008. My x-rays were taken with
the use of a portable x-ray machine and I was lying down while the x-rays were
completed in Omaha on June 12, 2008.”
Appellant notes that the Office disregarded Dr. Walla’s October 3, 2007 rating because
he reported no range of motion, but he did, in fact, report full range of motion bilaterally. She
indicates that she gave the Office medical adviser everything he needed, including her release, to
compare the two sets of x-rays, only to find that the CD-ROMs could not be used. Appellant
asks that her schedule award be based on Dr. Walla’s rating, either his original rating of
37 percent bilaterally or his later rating of 62 percent on the left and 37 percent on the right.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.3
ANALYSIS
The attending physician and the Office referral physician disagreed on the extent of
appellant’s permanent impairment. Dr. Walla, the attending orthopedic surgeon, reviewed x-rays
obtained on August 21, 2007 and found a 37 percent impairment of each lower extremity due to
loss of joint space and partial medial meniscectomies.4 Later, he reviewed x-rays obtained on

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8123(a).

4

A 1 mm joint space of the medial compartment is a 25 percent impairment of the lower extremity. A 2 mm
narrowing in the patellofemoral joint is a 10 percent impairment. The A.M.A., Guides 544 (5th ed. 2001) (Table 1731). A partial medial meniscectomy is a two percent impairment. Id. at 546 (Table 17-33).

4

August 12, 2008 and found a 62 percent impairment of the left knee and the same 37 percent
impairment of the right.5
Dr. Lee, the Office referral physiatrist, disagreed. He reviewed a CD-ROM of the
August 21, 2007 x-rays and found a 22 percent impairment of the left lower extremity and a
9 percent impairment of the right lower extremity. He later obtained actual x-ray films on
June 12, 2008 and reported the same cartilage intervals and the same impairments.6
The Office medical adviser reviewed the evidence and noted the conflict. He correctly
observed that no decision could be made on a possible schedule award increase until the conflict
was resolved.
The Board finds that a conflict in medical opinion exists between Dr. Walla and Dr. Lee
on the extent of appellant’s permanent impairment. This conflict does not stem from different or
incorrect applications of the A.M.A., Guides. Both physicians applied the same tables and
applied them correctly. The conflict arises from their measurements of the x-ray cartilage
intervals in appellant’s knees. Pursuant to section 8123(a) of the Act, the Office shall refer
appellant to an impartial medical specialist to resolve this conflict. The impartial specialist shall
obtain standard x-ray films strictly adhering to the specifications on page 544 of the A.M.A.,
Guides. If possible, the radiology report should confirm those specifications. The specialist
shall measure the cartilage intervals in both the knee and patellofemoral joints and shall
determine appellant’s bilateral lower extremity impairment using Table 17-31. The Office shall
then combine the arthritis impairments with the two percent diagnosis-based estimate bilaterally
for partial medial meniscectomy from Table 17-33.7 After such further development as may be
required, the Office shall issue an appropriate final decision on appellant’s claim for an increased
schedule award.
It makes no difference whether, as appellant notes on appeal, the Office medical adviser
misreported one of Dr. Walla’s measurements. A conflict still exists between Dr. Walla and
Dr. Lee on the extent of her permanent impairment. It also makes no difference if the June 12,
2008 x-rays obtained for Dr. Lee were not standing x-rays of the knee joint, as the A.M.A.,
Guides requires. Both physicians reviewed the images obtained on August 21, 2007 and
reported different measurements for the cartilage interval in the knee joint.8 An impartial
medical specialist will obtain standard x-ray films satisfying Office requirements by strictly
adhering to the protocols of the A.M.A., Guides and will resolve the extent of appellant’s
permanent impairment due to the cartilage interval in both the knee (tibiofemoral) and
5

A 0 mm joint space of the left medial compartment is a 50 percent impairment of the lower extremity. Id. at 544
(Table 17-31).
6

A 2 mm joint space of the left medial compartment is a 20 percent impairment of the lower extremity. A 3 mm
joint space on the right is a seven percent impairment. Id. Impairments due to partial medial meniscectomies
increase the ratings to 22 and 9 percent respectively.
7

See id. at 526 (Table 17-2, allowing arthritis impairments to be combined with diagnosis-based estimates).

8

Dr. Lee did not rate impairment due to the cartilage interval in the patellofemoral joints, and Dr. Walla based his
patellofemoral ratings on merchant views. The A.M.A., Guides requires a sunrise or true lateral view for the
patellofemoral joint.

5

patellofemoral joints of her lower extremities. Section 8123(a) of the Act requires such a referral
to resolve the conflict.
CONCLUSION
The Board finds that this case is not in posture for decision. There is an unresolved
conflict on the extent of appellant’s permanent impairment. Section 8123(a) of the Act requires
further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: May 5, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, SANDHILLS POST
OFFICE, Columbia, SC, Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0236
Issued: August 22, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
On November 9, 2018 appellant, through counsel, filed a timely appeal from a May 29,
2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 19-0236.
On August 27, 2014 appellant, then a 60-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that her hip and back problems were caused by her
employment duties.
By decision dated December 1, 2014, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish causal relationship between the diagnosed
medical conditions and the accepted employment factors. On January 21, 2015 it received
appellant’s January 7, 2015 request for an oral hearing. OWCP, by decision dated February 23,
2015, denied appellant’s request for an oral hearing as it found her request to be untimely. It noted

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.

that the issues in the case could equally well be addressed by requesting reconsideration and
submitting evidence not previously considered in support of her claim.
Appellant requested reconsideration on April 14, 2015. OWCP, by decision dated
April 29, 2015, denied modification finding the evidence she submitted was irrelevant to the
underlying issue of causal relationship.
On July 1, 2015 appellant again requested reconsideration. By decision dated
December 14, 2015, it denied modification finding that the weight of the medical opinion evidence
rested with the well-rationalized opinion of Dr. Chason S. Hayes, a second opinion Board-certified
orthopedic surgeon. Appellant again filed a request for reconsideration on March 15, 2016. By
decision dated April 5, 2016 OWCP reviewed the merits of her claim, but denied modification of
the December 14, 2015 decision.
Appellant again filed a request for reconsideration on September 28, 2016. By decision
dated January 20, 2017, OWCP denied modification finding that the additional evidence she had
submitted was of insufficient probative value to warrant modification.
On May 9, 2018 OWCP received appellant’s request for reconsideration. By decision
dated May 29, 2018, it denied reconsideration finding that she had failed to submit medical
evidence with her request or raise a new or relevant argument.
Section 10.607(a) of the implementing regulations provides that an application for
reconsideration must be received within one year of the date of OWCP’s last merit decision for
which review is sought.2 Timeliness is determined by the document receipt date of the request for
reconsideration as indicated by the received date in the Integrated Federal Employees’
Compensation System (iFECS).3 The Board has duly considered the matter and finds that
appellant’s request for reconsideration was untimely filed as it was not received until May 9, 2018,
which is more than one year from the January 20, 2017 merit decision.
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of its most recent decision. The application must establish, on its
face, that such decision was erroneous.4 The standard utilized by OWCP in its May 29, 2018
decision is appropriate only for timely reconsideration requests. Because appellant filed an
untimely reconsideration request, the case will be remanded to OWCP for application of the correct
standard for reviewing untimely reconsideration requests, the clear evidence of error standard.5
After such further development as OWCP deems necessary, it shall issue an appropriate decision.
Accordingly,

2

20 C.F.R. § 10.607(a).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

4

Id. at § 10.607. See also C.B., Docket No. 17-0933 (issued July 17, 2017); A.B., Docket No. 15-0521 (issued
June 13, 2016).
5

Id. at § 10.606(b).

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IT IS HEREBY ORDERED THAT the May 29, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: August 22, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Kinston, NC, Employer
__________________________________________

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

Docket No. 19-0319
Issued: October 26, 2020

Case Submitted on the Record

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

JURISDICTION
On November 26, 2018 appellant filed a timely appeal from a September 5, 2018 merit
decision and October 26 and November 2, 2018 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP).1 Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
this case.3

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated April 16, 2020,
the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately be
addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-0319 (issued
April 16, 2020).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 2, 2018 decision, OWCP received additional evidence. 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained renal failure and post-traumatic stress disorder (PTSD) as a consequence of his accepted
bilateral upper extremity conditions; and (2) whether OWCP properly denied appellant’s
October 2, 2018 requests for reconsideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
This case has been previously before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On May 15, 2012 appellant, then a 30-year-old food inspector, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral carpal tunnel syndrome, bilateral
cubital tunnel syndrome, and a right trigger thumb while inspecting poultry in the performance of
duty. OWCP accepted the claim for bilateral carpal tunnel syndrome. It subsequently expanded
acceptance of the claim to include the additional conditions of bilateral cubital tunnel syndrome
and right trigger finger.5
On April 19, 2015 appellant filed an occupational disease claim (Form CA-2) alleging that,
on or before June 27, 2014, he sustained renal failure and PTSD as a consequence of the accepted
bilateral upper extremity conditions. He contended that medications he took for his accepted
conditions had worsened his preexisting kidney condition.
Following initial development of the claim, by decision dated November 3, 2015, OWCP
denied appellant’s claim for consequential PTSD and renal failure finding that the medical
evidence of record did not contain sufficient medical rationale to establish causal relationship
between those conditions and the accepted employment injury.
On October 24, 2016 appellant requested reconsideration. He submitted reports dated from
February 4, 2015 to November 18, 2016 by Dr. Graham V. Bynum, an attending Board-certified
internist specializing in nephrology. Dr. Bynum opined that appellant’s long-term use of
nonsteroidal anti-inflammatory drugs (NSAIDs) to treat accepted carpal tunnel syndrome could
accelerate the progression of appellant’s underlying chronic kidney disease and cause interstitial
nephritis.

4

Docket No. 17-1084 (issued April 2, 2018).

5

Appellant underwent the following OWCP-authorized procedures: right carpal tunnel release on January 31,
2013; left carpal tunnel release and left ulnar nerve transposition on April 18, 2013; right carpal tunnel release, right
ulnar nerve artery repair, and right ulnar nerve release at the wrist on May 22, 2014; right anterior ulnar nerve
transposition at the elbow on July 16, 2015; right ulnar nerve neurolysis at the elbow and releases of the right middle,
ring, and little fingers on July 13, 2017; and left carpal tunnel release and revision of left ulnar nerve decompression
at the wrist on November 16, 2017. OWCP granted his schedule award compensation totaling 10 percent permanent
impairment of the right upper extremity and 20 percent permanent impairment of the left upper extremity.

2

By decision dated December 2, 2016, OWCP denied modification.
appealed to the Board.6

Appellant then

By decision issued April 2, 2018,7 the Board affirmed OWCP’s December 2, 2016 decision
finding that appellant had not established that he sustained renal failure and PTSD consequential
to his accepted bilateral upper extremity conditions. The Board explained that the medical
evidence of record was insufficient to establish a causal relationship between the use of NSAID
medication for his accepted carpal tunnel syndrome and the development of renal failure. The
Board noted that appellant had not submitted medical evidence addressing the additional claimed
condition of PTSD.
On April 11, 2018 appellant requested reconsideration of the April 2, 2018 decision,
contending that NSAID use following eight authorized upper extremity surgeries had caused renal
failure. He submitted a February 15, 2018 report by Dr. Harrison G. Tuttle, a Board-certified
orthopedic surgeon, who recommended additional evaluation of appellant’s right shoulder. In a
May 17, 2018 reports, Dr. Semaan El-Khoury, an internist, opined that appellant’s end-stage renal
disease was “multifactorial and in part can be related to the use of NSAID over the years for
[appellant’s] pain.” He found appellant permanently and totally disabled from work. Appellant
also provided a report by Margaret Ann Dillon, a nurse practitioner.
By decision dated June 26, 2018, OWCP denied modification of its prior decision finding
that the reports of Dr. El-Khoury and Ms. Dillon were insufficient to establish causal relationship
between the claimed conditions of renal failure and PTSD to the accepted bilateral upper extremity
conditions, “including the NSAIDs taken during treatment of the accepted conditions.”8
On July 2, 2018 appellant requested reconsideration of the June 26, 2018 decision. In an
August 22, 2018 statement, he noted that his physicians had opined that the NSAIDs he had taken
to treat the accepted upper extremity conditions had caused kidney failure. Appellant submitted
additional evidence.
In a July 10, 2018 report, Dr. Bruce D. Wilhelmsen, a Board-certified orthopedic surgeon,
noted that appellant had a dialysis port in his left upper extremity. He obtained x-rays showing a
normal right shoulder. In reports dated August 7 and 8, 2018, Dr. Lawrence N. Larabee, Jr., an
attending Board-certified orthopedic surgeon, diagnosed right ulnar neuropathy at the elbow, right
6
During the pendency of the prior appeal, appellant claimed a consequential right shoulder condition, denied by
OWCP in decisions dated August 8, 2016 and January 5, 2017. By decision dated February 23, 2017, OWCP denied
his schedule award claim for additional upper extremity permanent impairment, and subsequently denied
reconsideration by decision dated April 13, 2017. On March 14, 2018 appellant requested reconsideration of OWCP’s
January 5, 2017 decision. By decision dated June 8, 2018, OWCP denied reconsideration as the request was untimely
filed and failed to demonstrate clear evidence of error.
7

Supra note 4.

8

OWCP actually referred to the Board’s April 2, 2018 decision. However, it has no jurisdiction to review a Board
decision. The decisions and orders of the Board are final as to the subject matter appealed and such decisions and
orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d). Appellant had 30 days from the date
of the Board’s April 2, 2018 decision to file a petition for reconsideration with this Board of its decision. Id. at § 501.7.
See also C.M., Docket No. 19-1211 (issued August 5, 2020). Therefore, the reconsideration shall be considered to be
from OWCP’s December 2, 2016 merit decision.

3

scapular winging, and right shoulder impingement. Appellant also provided a December 8, 2016
electrodiagnostic study and a July 31, 2018 report by Penny Brown, a nurse practitioner
By decision dated August 29, 2018, OWCP granted appellant a schedule award for an
additional 9 percent permanent impairment of the right upper extremity in addition to the 10
percent previously paid,9 for a total of 19 percent.
By decision dated September 5, 2018, OWCP denied modification of it June 26, 2018
decision.
On October 2, 2018 appellant requested reconsideration of the September 5, 2018 decision.
On that same date he also requested reconsideration from the August 29, 2018 decision that
granted a schedule award. In support thereof, appellant submitted a March 6, 2018 report by
Ms. Dillon, a nurse practitioner, and a September 5, 2018 report by Ms. Brown. He also provided
copies of reports previously of record.
By decision dated October 26, 2018, OWCP denied appellant’s October 2, 2018 request
for reconsideration of the August 29, 2018 merit decision pursuant to 5 U.S.C. § 8128(a).
Appellant submitted a Social Security Administration (SSA) benefits statement dated
October 27, 2018.
By decision dated November 2, 2018, OWCP denied appellant’s request for
reconsideration of the September 5, 2018 merit decision pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The claimant bears the burden of proof to establish a claim for a consequential injury.10 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.11
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.12 Neither the mere fact that a disease or condition
9

See supra note 4. On June 27, 2018 OWCP obtained a second opinion regarding the appropriate percentage of
bilateral upper extremity impairment from Dr. Arthur W. Wardell, a Board-certified orthopedic surgeon, who found
20 percent permanent impairment of the right upper extremity and 18 percent permanent impairment of the left upper
extremity. In a July 12, 2018 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a DMA,
reviewed Dr. Wardell’s report and found 19 percent permanent impairment of the right upper extremity and 14 percent
permanent impairment of the left upper extremity.
10
V.K., Docket No. 19-0422 (issued June 10, 2020); A.H., Docket No. 18-1632 (issued June 1, 2020); I.S., Docket
No. 19-1461 (issued April 30, 2020).
11

K.W., Docket No. 18-0991 (issued December 11, 2018).

12

G.R., Docket No. 18-0735 (issued November 15, 2018).

4

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 discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary 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.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that he sustained
renal failure and PTSD as a consequence of his accepted bilateral upper extremity conditions.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 2, 2016 merit decision. The Board
considered evidence in its April 2, 2018 decision and found that it was insufficient to establish that
he sustained renal failure and PTSD as a consequence of accepted upper extremity conditions.
Findings made in prior Board decisions are res judicata absent any further review by OWCP under
section 8128 of FECA.15
In support of his claim appellant provided a May 17, 2018 report by Dr. El-Khoury,
opining that appellant’s end-stage renal disease was possibly related, in part, to NSAID use over a
period of years. While Dr. El-Khoury provided an affirmative opinion that supported causal
relationship, he did not offer a rationalized medical explanation to support his opinion. Medical
evidence that provides a conclusion, but does not offer a rationalized medical explanation
regarding the cause of an employee’s condition, is of limited probative value on the issue of causal
relationship.16 Thus, Dr. El-Khoury’s opinion is insufficient to meet appellant’s burden of proof.
Appellant also submitted reports from Dr. Tuttle, Dr. Larabee, and Dr. Wilhelmsen
addressing right upper extremity conditions. As this evidence does not address the claimed
conditions of PTSD and renal failure, they are of no probative value in establishing causal
relationship as to those conditions. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.17 These reports, therefore, are insufficient to establish appellant’s claim.

13

Id.

14

K.S., Docket No. 17-1583 (issued May 10, 2018).

15

A.H., supra note 10; I.S., supra note 10.

16

A.H., supra note 10.

17

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

5

The Board finds, additionally, that, as appellant submitted no medical evidence regarding
PTSD, he has thus failed to meet his burden of proof to establish this condition.18
Appellant also submitted reports by Ms. Brown and Ms. Dillon, nurse practitioners. As
nurse practitioners are not considered physicians as defined under FECA, their medical findings
and opinions are insufficient to establish entitlement to compensation benefits.19
Appellant also submitted a December 8, 2016 electrodiagnostic study. The Board has held,
however, that diagnostic reports, standing alone, lack probative value on the issue of causal
relationship as they do not address whether the employment injury caused any of the diagnosed
conditions.20
On appeal, appellant asserts that the medical evidence of record was sufficient to meet his
burden of proof to establish consequential renal failure and PTSD. As explained above, he
submitted no medical evidence regarding PTSD, and insufficient medical opinion evidence to
establish the causal relationship asserted between NSAID use and renal failure. As such, 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.21
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.22

18

Id.

19

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8101(2); 20 C.F.R. § 10.5(t); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); M.J., Docket No. 19-1287 (issued January 13, 2020); P.H., Docket No. 19-0119
(issued July 5, 2019); T.K., Docket No. 19-0055 (issued May 2, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11
(2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render a
medical opinion under FECA). See W.Z., Docket No. 20-0191 (issued July 31, 2020) (a nurse practitioner is not
considered a physician under FECA).
20

M.C., Docket No. 19-1074 (issued June 12, 2020); N.B., Docket No. 19-0221 (issued July 15, 2019).

21

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

22

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).

6

A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.23 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.24 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On October 2, 2018 appellant requested reconsideration of OWCP’s August 29, 2018
schedule award determination and September 5, 2018 decision denying expansion of the claim.
He has not contended that OWCP erroneously applied or interpreted a specific point of law, nor
has he advanced a new and relevant legal argument not previously considered. Thus, appellant is
not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
In support of his reconsideration requests appellant provided additional evidence including
reports by Ms. Brown and Ms. Dillon, nurse practitioners, and copies of reports previously of
record. The nurse practitioner reports are not relevant to the issue of his claim for consequential
PTSD and renal failure as they are not medical evidence.26 In support of reconsideration of the
September 5, 2018 decision, appellant also submitted an SSA benefits statement. The SSA
benefits statement is irrelevant to the issue of causal relationship of the consequential conditions
as it does not address the etiology of those conditions. The Board notes that the submission of
evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.27
Appellant also submitted copies of evidence previously of record. The Board has held that
the submission of evidence or argument which repeats or duplicates evidence or argument already
in the case record does not constitute a basis for reopening a case.28 As appellant failed to provide
relevant and pertinent new evidence related to the underlying issue of expansion, he was not
entitled to a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).
23

Id. at § 10.607(a). The one-year period begins on the next day after the date of the originally contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
24

Id. at § 10.608(a); see also J.T., Docket No. 19-1829 (issued August 21, 2020); M.S., 59 ECAB 231 (2007).

25

Id. at § 10.608(b); L.C., Docket No. 18-0787 (issued September 26, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
26

See supra note 19.

27

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECB 140 (2000); L.C., supra note 25.

28

L.C., Docket No. 19-0503 (issued February 7, 2020); J.B., Docket No. 18-1531 (issued April 11, 2019); see L.R.,
Docket No. 18-0400 (issued August 24, 2018); Candace A. Karkoff, 56 ECAB 622 (2005).

7

The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.29
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he sustained
renal failure and PTSD as a consequence of his accepted bilateral upper extremity conditions. The
Board further finds that OWCP properly denied his requests for reconsideration of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).

29
L.C., supra note 25 A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued
April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b), OWCP will deny the request for
reconsideration without reopening the case for a review on the merits).

8

ORDER
IT IS HEREBY ORDERED THAT the November 2, October 26 and September 5, 2018,
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 26, 2020
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OLIN E. TEAGUE VETERANS CENTER,
Temple, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0079
Issued: June 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On October 15, 2018 appellant filed a timely appeal from a May 7, 2018 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 to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that her diagnosed
dermatitis is causally related to accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On January 24, 2018 appellant, then a 45-year-old surgical technician, filed an
occupational disease claim (Form CA-2) alleging that she developed contact dermatitis due to
exposure to substances while in the performance of her federal employment duties. She noted that
both hands itched and that her skin was painful with open sores. Appellant indicated that she first
became aware of her disease or illness and of its relation to her federal employment duties on
December 5, 2017. She did not stop work.
In a development letter dated February 12, 2018, OWCP informed appellant of the
deficiencies of her occupational disease claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. In a separate letter of even date,
OWCP requested comments from the employing establishment regarding substances to which
appellant had been exposed while at work. Both parties were afforded 30 days to submit additional
evidence.
A February 8, 2018 duty status report (Form-CA-17) provided work restrictions precluding
use of appellant’s right hand and right wrist.
By decision dated April 11, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish a diagnosed condition in connection with the
accepted factors of her federal employment.
On April 27, 2018 appellant requested reconsideration.
In a December 5, 2017 note, Dr. David F. Butler, a Board-certified dermatologist, noted
that appellant, a scrub technician, had an itchy rash on her hands. He noted that at work she used
betadine and antiseptic cleanser throughout the day. On January 9 and 22, 2018 Dr. Butler
diagnosed eczematous dermatitis on the dorsum of both hands with no specific aggravation or
triggering factor.
On January 26, 2018 Dr. Lisa Shirley-Williams, a Board-certified dermatologist, found
that appellant’s chronic hand dermatitis was due to an allergic reaction to p-Phenylenediamine
(PPDA) or hair dye. She recommended the use of latex-free gloves, hand moisturizer, and
medicated ointment. On February 5, 2018 Dr. Butler attributed appellant’s hand dermatitis to an
exacerbation with scrubbing and possible recent triggering event of dyeing her hair in
November 2017.
In a February 26, 2018 report, Dr. Butler described appellant’s job requirements of
scrubbing her hands and wrists with antiseptics several times a day. He noted that she believed
that this duty was causing or aggravating the rash on her hands. Dr. Butler found hyperpigmented
scaly eczematous patches on the dorsum of both hands and wrists. He recommended avoidance
of scrubbing as well as application of ointment and application of moisturizing ointment.
Dr. Butler noted that appellant first reported her itchy rash on her hands and chest on
August 7, 2017. On January 9, 2018 appellant returned for treatment because of an acute
exacerbation following return to work after a vacation. She noted that while on vacation her rash
had cleared completely, but that after she returned to work and to scrubbing her hands, an eruption
quickly returned. Dr. Butler reviewed appellant’s allergy testing and concluded that her PPDA or

2

hair dye allergy was not applicable in playing a direct role in her hand dermatitis. He found
appellant had severe irritant dermatitis of the hands and wrists caused or aggravated by scrubbing
her hands with antiseptics as part of her employment as an operating room technician. Dr. Butler
concluded that the act of scrubbing with antiseptics on a daily basis as required for her job had
definitely caused or made manifest irritant eczematous dermatitis. He determined that appellant
could not scrub her hands at work and should perform light-duty work.
By decision dated May 7, 2018, OWCP modified the April 11, 2018 decision to reflect that
appellant had established a diagnosed medical condition. However, the claim remained denied as
the medical evidence of record was not sufficiently rationalized to establish causal relationship
between the accepted factors of her federal employment and her diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”6 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 diagnosed condition is causally related to the identified
employment factors.
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based upon a
complete factual and medical background.8 Additionally, his or her opinion must be expressed in
3

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

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

20 C.F.R. § 10.5(q).

7

E.V., Docket No. 18-1617 (issued February 26, 2019).

8

Id.

3

terms of a reasonable degree of medical certainly, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and the claimant’s
specific employment factors.9 The belief of a claimant that a condition was caused or aggravated
by the employment is not sufficient to establish causal relation.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed dermatitis is causally related to the accepted factors of her federal employment.
On January 26, 2018 Dr. Shirley-Williams diagnosed chronic hand dermatitis. She
attributed appellant’s condition to an allergic reaction to PPDA or hair dye. Dr. Shirley-Williams
did not attribute appellant’s dermatitis to her employment. In a series of notes dated December 5,
2017, and January 9 and 22, 2018, Dr. Butler diagnosed eczematous dermatitis on the dorsum of
both hands with no specific aggravation or triggering factor. On February 5, 2018 he attributed
appellant’s hand dermatitis to a possible recent triggering event of dyeing her hair in
November 2017. These reports did not attribute appellant’s dermatitis to her accepted employment
exposures or duties. Instead both Drs. Butler and Shirley-Williams indicated that appellant’s
dermatitis was either idiopathic or due to an allergy to hair dye. As these reports did not attribute
the diagnosed condition to appellant’s employment, they have no probative value on the issue of
causal relationship and are insufficient to meet appellant’s burden of proof in her occupational
disease claim.11
On February 26, 2018 Dr. Butler reviewed appellant’s allergy testing and concluded that
her PPDA or hair dye allergy was not playing a direct role in her hand dermatitis. He found that
she had severe irritant dermatitis of the hands and wrists caused or aggravated by scrubbing her
hands with antiseptics as part of her employment as an operating room technician. Dr. Butler
concluded that the act of scrubbing with antiseptics on a daily basis as required for appellant’s job
had definitely caused or made manifest irritant eczematous dermatitis. While Dr. Butler opined
that appellant’s job duties caused or contributed to her diagnosed dermatitis, he did not offer
medical rationale explaining how the accepted job duty caused the diagnosed condition.12 He did
not explain how the mechanism of injury would have physiologically caused the diagnosed
condition.13 Thus, Dr. Butler’s reports are insufficient to establish appellant’s burden of proof.
The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship. Temporal relationship alone will not suffice. Entitlement to FECA
benefits may not be based on surmise, conjecture, speculation, or on the employee’s own belief of
a causal relationship.14 The Board finds that the record lacks rationalized medical evidence
9

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

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

11

T.H., Docket No. 18-1736 (issued March 13, 2019).

12

Id.

13

Id.

14

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

4

establishing causal relationship between the implicated job duties and her diagnosed dermatitis.15
Thus, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed dermatitis is causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 14, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

15

Id.; J.S., Docket No. 17-0507 (issued August 11, 2017).

5