United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
_________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0372
Issued: April 6, 2016

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 December 22, 2015 appellant, through counsel, filed a timely appeal from a
September 10, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury causally related to factors of her
federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 19, 20152 appellant, then a 62-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed plantar fasciitis due to her employment
duties. She first became aware of her condition on January 30, 2015, she notified her supervisor
on March 26, 2015, and she stopped work on February 27, 2015. Appellant has not returned to
work.
By letter dated March 30, 2015, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was afforded 30 days to submit this evidence.
In an April 21, 2015 narrative statement, appellant responded to OWCP’s development
letter stating that her duties as a letter carrier included walking, stair climbing, lifting, and pulling
on a daily basis in all kinds of weather and conditions. She noted working six days per week for
8 to 12 hours a day. Appellant reported no other outdoor activities.
In medical reports and notes dated January 30 to April 24, 2015, Dr. Laura E. Linde, a
doctor of podiatric medicine, reported that appellant sought treatment beginning January 30,
2015 for bilateral pain at the bottom of her feet and left heel. Appellant reported experiencing
pain for the past few years which had progressively worsened in the last few months. She noted
a history of bilateral frostbite of the toes in 1994 for which she experienced tingling, pain, and at
times numbness in her toes since the onset of injury. Dr. Linde provided findings on physical
examination, reviewed x-rays of the feet, and diagnosed plantar fasciitis, pain in soft tissues of
limb, peripheral neuropathy, hammer digit syndrome, and acquired equinus deformity of foot.
She noted that appellant’s frostbite from 20 years prior made it highly possible that she had nerve
damage despite negative findings in an electromyography (EMG) study.
An April 6, 2015 magnetic resonance imaging (MRI) scan report from Dr. John
Doumanian, a Board-certified diagnostic radiologist, reflected left foot findings which were
likely sequelae of plantar fasciitis. In an April 24, 2015 report, Dr. Linde reviewed this
diagnostic study and provided the additional diagnoses of Achilles bursitis and tibialis tendinitis
of the lower left extremity. Appellant was restricted from returning to work.
In duty status reports (Forms CA-17) and an attending physician’s report (Form CA-20)
dated March 4 to April 22, 2015, Dr. Linde diagnosed plantar fasciitis and checked the box
marked “yes” when asked if the condition was caused or aggravated by the employment activity.
In an April 28, 2015 narrative report, Dr. Linde reported that appellant was being treated
for bilateral Achilles tendinitis, plantar fasciitis, and posterior tibialis tendinitis. She noted
significant soft tissue involvement and review of a recent MRI scan revealed interstitial partial
tearing along the anterior aspect of the Achilles tendon. Dr. Linde further noted mild-tomoderate enthesopathy of the calcaneus, evidence of tibialis posterior tendinopathy, and some
arthritic changes in the left lower extremity. She reported bilateral involvement with the
2

The Form CA-2 was signed by appellant, but appears to bear a date of signing of March 19, 2016. As the form
was received by OWCP on March 27, 2015, the date of signature is merely a scrivener’s error.

2

Achilles tendinitis and plantar fasciitis, left worse than right. Dr. Linde explained that
appellant’s employment as a postal employee involved a strenuous and labor intensive job where
she was on her feet for extensive hours and had to endure the elements outside, often walking up
and down stairs, carrying heavy loads, and dealing with elements of heavy snow, slush, and ice.
She opined that these duties probably aggravated appellant’s condition causing a strain on her
tendons in the lower extremities which had become even more involved on a higher level with
strenuous work in such extreme environments on a day-to-day, perpetual basis. Dr. Linde noted
that appellant’s employment duties contributed to her condition and while it was not the only
contributing factor, it was the primary one. She concluded that the demands of appellant’s job
likely aggravated her condition and restricted her from returning to work.
By decision dated May 12, 2015, OWCP denied appellant’s claim finding that the
medical evidence failed to establish that her diagnosed conditions were causally related to her
accepted federal employment duties.
On June 9, 2015 appellant requested reconsideration of OWCP’s decision. In support of
her claim, she submitted a May 29, 2015 medical report from Dr. Linde which she argued
established causal relationship.
In the May 29, 2015 medical narrative, Dr. Linde repeated the findings made in her
April 28, 2015 narrative. She again explained that appellant’s employment as a postal employee
involved a strenuous and labor intensive job where she was on her feet for extensive hours and
had to endure the elements outside, often walking up and down stairs, carrying heavy loads, and
dealing with the elements of heavy snow, slush, and ice. Dr. Linde opined that all of these
environmental conditions, along with the responsibilities of the heavy loads of the job, most
definitely aggravated appellant’s pathological condition of Achilles tendinitis, plantar fasciitis,
and posterior tibial tendinitis. Appellant’s employment duties aggravated her condition by
placing a strain on her tendons in the lower extremities which had become even more involved
on a higher level with strenuous work in such extreme environments on a day-to-day, perpetual
basis. Dr. Linde noted that appellant’s employment duties contributed to her condition and while
it was not the only contributing factor, it was the primary one. She concluded that the demands
of appellant’s job aggravated her condition and restricted her from returning to work.
By decision dated September 10, 2015, OWCP affirmed the May 12, 2015 decision
finding that the medical evidence failed to establish that her diagnosed conditions were causally
related to her accepted federal employment duties.
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 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 is causally related to the

3

employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an 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 that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
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.7 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the 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.8
ANALYSIS
OWCP accepted that appellant engaged in extensive walking activities in her
employment duties as a city carrier. It denied her claim, however, as the evidence failed to
establish a causal relationship between those activities and her bilateral foot injuries. The Board
finds that the medical evidence of record is insufficient to establish that appellant developed
bilateral Achilles tendinitis, plantar fasciitis, and posterior tibial tendinitis causally related to
factors of her federal employment as a city carrier.
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.

6

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

7

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

8

James Mack, 43 ECAB 321 (1991).

4

In support of her claim, appellant submitted medical reports and narratives dated
January 30 through May 28, 2015 from Dr. Linde, her treating physician. The Board finds that
the opinion of Dr. Linde is not well rationalized.
In medical reports dated January 30 to April 24, 2015, Dr. Linde provided a medical
history, findings on examination, and review of diagnostic testing. These reports are insufficient
to establish appellant’s claim as the physician provided no opinion regarding the cause of
appellant’s lower extremity injuries. 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.9 Dr. Linde’s March 4, 2015 Form CA-20 is also insufficient to
establish appellant’s claim as the only opinion provided on causal relationship entailed checking
a box marked “yes.” A report that addresses causal relationship with a checkmark, without
medical rationale explaining how the work condition caused the alleged injury, is of diminished
probative value and is insufficient to establish causal relationship.10
Dr. Linde’s April 28 and May 29, 2015 narrative reports, provided an opinion regarding
the cause of appellant’s conditions, but they are also insufficient to establish appellant’s
occupational disease claim. She reported that appellant was being treated for bilateral Achilles
tendinitis, plantar fasciitis, and posterior tibialis tendinitis of the lower extremity and opined that
her postal employment duties aggravated her lower extremity injuries. The Board notes that
Dr. Linde’s prior medical reports noted a history of bilateral frostbite of the toes in 1994 which
caused appellant tingling, pain, and occasional numbness since the onset of injury. She reported
that it was highly possible that appellant had nerve damage resulting from the frostbite 20 years
prior. While Dr. Linde opined that appellant’s conditions were aggravated by her employment
duties, she did not address why appellant’s complaints were not caused by her preexisting injury,
nor did she discuss whether her preexisting injury had progressed beyond what might be
expected from the natural progression of that condition.11 A well-rationalized opinion is
particularly warranted when there is a history of a preexisting condition.12 Dr. Linde further
noted that a recent MRI scan revealed some arthritic changes in the left lower extremity. Her
opinion on causation is further deficient as she failed to explain why appellant’s lower extremity
complaints were not caused by a preexisting degenerative arthritic condition.13
Dr. Linde explained that appellant’s employment as a postal employee involved a
strenuous and labor intensive job where she was on her feet for extensive hours and had to
endure the elements outside, often walking up and down stairs, carrying heavy loads, and dealing
with the elements of heavy snow, slush, and ice. She opined that all of these environmental
conditions, along with the responsibilities of the heavy loads of the job, most definitely
aggravated appellant’s pathological condition of Achilles tendinitis, plantar fasciitis, and
9

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

10

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

11

R.E., Docket No. 14-868 (issued September 24, 2014).

12

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13

P.O., Docket No. 14-1675 (issued December 3, 2015).

5

posterior tibial tendinitis. While Dr. Linde had an understanding of appellant’s employment
duties, her statement on causation nonetheless fails to adequately describe appellant’s work
duties, fails to specify how long she worked as a city carrier, fails to report how many hours she
walked and climbed stairs, and failed to specify the frequency of other physical movements and
tasks which she attributes as the primary aggravating factor of appellant’s injuries.
Dr. Linde explained that appellant’s employment duties aggravated her condition by
placing a strain on her tendons in the lower extremities. Her explanation is vague as the
mechanism of injury only generally notes strain on the tendons without specifically addressing
how this aggravated the three different diagnoses of Achilles tendinitis, plantar fasciitis, and
posterior tibial tendinitis.
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.14 As Dr. Linde
failed to provide a well-rationalized opinion that appellant’s bilateral Achilles tendinitis, plantar
fasciitis, and posterior tibial tendinitis were caused or aggravated by her occupational
employment duties, her medical reports fail to establish that appellant’s injuries are a result of a
work-related occupational exposure.15
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. Dr. Doumanian’s April 6, 2015 report interpreted diagnostic imaging studies and
provided no opinion on the cause of appellant’s injury.16 Without any mention of the repetitive
employment duties, any findings in these reports fail to establish causal relationship.17
The Board therefore finds that appellant has failed to meet her burden of proof to
establish an injury.
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.
CONCLUSION
The Board finds that appellant did establish an injury causally related to factors of her
federal employment as a city carrier.

14

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

15

S.R., Docket No. 12-1098 (issued September 19, 2012).

16

D.H., Docket No. 11-1739 (issued April 18, 2012).

17

S.Y., Docket No. 11-1816 (issued March 16, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 10, 2015 is affirmed.
Issued: April 6, 2016
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
__________________________________________
P.P., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
ANIMAL PARISITOLOGY INSTITUTE,
Beltsville, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 07-286
Issued: June 21, 2007

Case Submitted on the Record

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

JURISDICTION
On November 13, 2006 appellant filed an appeal of an October 31, 2006 decision of the
Office of Workers’ Compensation Programs denying modification of a loss of wage-earning
capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s request to modify the wageearning capacity decision of January 28, 1998.
FACTUAL HISTORY
This is appellant’s second appeal before the Board. By decision dated February 15,
2005,1 the Board affirmed a February 19, 2002 decision of the Office denying his claim for a
1

Docket No. 02-2216 (issued February 15, 2005).

recurrence of disability commencing August 12, 1998. Appellant asserted that he sustained a
spontaneous worsening of an accepted July 16, 1995 lumbar strain and a herniated L4-5 disc.
However, the Board found that the medical evidence established that appellant’s lumbar
condition on and after August 12, 19982 was due to his private-sector employment from April to
August 1998 performing repetitive heavy lifting at a tire shop. The Board further found that this
private-sector employment constituted an intervening cause, breaking the legal chain of
causation from an accepted July 16, 1985 lumbar strain and herniated L4-5 disc. The Board
found that the Office failed to consider if a March 13, 2002 report from Dr. Divakar
Krishnareddy, an attending Board-certified orthopedic surgeon, was sufficient to require
modification of a January 28, 1998 wage-earning capacity determination. The Board remanded
the case to the Office for further development and issuance of an appropriate decision. The law
and the facts of the case as set forth in the Board’s prior decision are hereby incorporated by
reference.
On remand of the case, the Office reviewed the record to determine if the evidence
warranted modification of the January 28, 1998 wage-earning capacity determination.
By decision dated May 10, 2005, the Office denied modification of the January 28, 1998
wage-earning capacity determination. The Office found that Dr. Krishnareddy’s March 13, 2002
report established that appellant’s medical condition on and after August 12, 1998 was due to his
private-sector employment at a tire shop in 1998. The Office found that appellant had not met
the criteria to modify the January 28, 1998 wage-earning capacity determination as he had not
established a material change in his disability, that the original rating was in error or that he had
been vocationally rehabilitated.
In a February 16, 2006 letter, appellant requested reconsideration. He asserted that his
lumbar condition worsened spontaneously in August 1998 without any intervening injury.
Appellant submitted additional evidence.
In a June 16, 2005 report, Dr. Gurvinder Deol, an attending Board-certified orthopedic
surgeon, noted a history of 1985 lumbar injury and that appellant worked for five months in
1998. On examination, he observed lumbosacral tenderness with restricted range of motion.
Dr. Deol related appellant’s symptoms of lower extremity paresthesias. He diagnosed axial back
pain and probable degenerative lumbosacral disc disease. Dr. Deol obtained an August 4, 2005
lumbar magnetic resonance imaging (MRI) scan showing mild disc bulges at L4-5 and L5-S1
and degenerative facet changes at L5-S1 causing neural foraminal narrowing.
In a September 22, 2005 report, Dr. Robert J. Wilson, an attending Board-certified
physiatrist, noted reviewing medical records that were “somewhat incomplete.” He stated that in
1992 appellant worked for a “tire company for about four to five months with no recurrent injury
but difficulty keeping up with the pace and limitations because of his ongoing back pain and
discontinued after about five months.” Dr. Wilson stated that an impression of “[w]ork injury
1985 with ongoing nonspecific mechanical low back pain” and degenerative spondylosis at L4-5
and L5-S1. He opined that the lumbar spondylosis combined with facet degenerative arthritis
2

Appellant did not return to work. He received compensation for partial disability.

2

“probably contribute[d] to his mechanical back pain with components of possibly lumbar
radiculopathy bilaterally and referred leg symptoms.”
Dr. Wilson also diagnosed
“[p]sychosocial factors interfering with physical functioning with significant work disability and
issues since injury 1985.” He submitted chart notes through December 22, 2005.
In a January 19, 2006 report, Dr. Wilson opined that appellant’s original injury in 1985
“was the ultimate causation of his current back problems. The return to work issue, although
aggravating his pain, which caused him to discontinue working … was not a new injury. It was
aggravation of a preexisting problem and [appellant] continue[d] with the ongoing back pain as
related to injury of 1985.” Dr. Wilson submitted periodic chart notes.
In a March 1, 2006 note, Dr. Wilson diagnosed degenerative L4-5 and L5-S1 discs.3 He
opined that appellant’s condition appeared to be an ongoing problem from his work injury of
1985, based on the medical records and his limited time of treating appellant. Dr. Wilson
submitted chart notes through October 9, 2006 describing appellant’s continued lumbar
symptoms.
By decision dated October 31, 2006, the Office denied modification of the January 28,
1998 loss of wage-earning capacity determination.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
The Office’s procedure manual provides that, “[i]f a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance the CE [claims examiner] will
need to evaluate the request according to the customary criteria for modifying a formal loss of
wage-earning capacity.”5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

3

A January 25, 2006 discogram showed “[p]osterior annular tears with degenerative painful L4-5 and L5-S1
disc.”
4

See Sharon C. Clement, 55 ECAB 552 (2004).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).

3

rehabilitated, or the original determination was, in fact, erroneous.6 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.7
ANALYSIS
The Office accepted that appellant sustained a July 16, 1985 lumbar injury. By decision
dated January 28, 1998, the Office issued a wage-earning capacity determination. Appellant then
alleged a recurrence of total disability commencing August 12, 1998. The Office issued
September 7, 2000, May 30, 2001 and February 19, 2002 decisions finding that the wage-earning
capacity determination should remain undisturbed as the medical evidence did not establish a
spontaneous worsening of the accepted condition. These decisions appropriately adjudicated the
modification of wage-earning capacity issue.8 However, in its June 7, 2002 decision, the Office
improperly failed to review the wage-earning capacity determination.9 The Board remanded the
case for further development.
On remand of the case, appellant submitted medical evidence which he asserted
established that his accepted lumbar condition worsened spontaneously, thus diminishing his
wage-earning capacity. Such a worsening is one of the three criteria for modifying a standing
wage-earning capacity determination.10 Dr. Deol, an attending Board-certified orthopedic
surgeon, submitted a June 16, 2005 report noting the 1985 lumbar injury and that appellant
performed unspecified work for five months in 1998. He diagnosed back pain and probable
degenerative lumbosacral disc disease. However, Dr. Deol did not opine that there was a
material change in appellant’s accepted lumbar condition. Thus, his opinion is insufficient to
warrant modification of the wage-earning capacity determination.11
Dr. Wilson, an attending Board-certified physiatrist, noted in a September 22, 2005 report
that the medical records he reviewed were “somewhat incomplete.” He related that appellant
experienced back pain when working for a tire company in 1992. However, appellant worked
for the tire company in 1998, not 1992. The Board therefore finds that Dr. Wilson’s opinion is
of diminished probative value as it is based on an incomplete and inaccurate factual and medical
history.12 In a January 19, 2006 report, he opined that appellant’s private-sector employment
6

Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).

7

Sue A. Sedgwick, supra note 6.

8

Federal (FECA) Procedure Manual, Chapter 2.814.9(a), supra note 5.

9

See Sharon C. Clement, supra note 4. The Board notes that consideration of the modification issue does not
preclude the Office from acceptance of a limited period of employment-related disability, without a formal
modification of the wage-earning capacity determination. Id. at n.4; Cf. Elsie L. Price, 54 ECAB 734 (2003)
(acceptance of disability for an extended period was sufficient to establish that modification of the wage-earning
capacity determination was warranted).
10

Katherine T. Kreger, supra note 6 (to warrant modification of a standing wage-earning capacity determination,
a claimant must establish that the original determination was in error, that he has been rehabilitated, or that he
sustained a work-related worsening of the accepted injury or condition).
11

Id.

12

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

4

aggravated his preexisting lumbar condition. Dr. Wilson then changed his opinion in a March 1,
2006 note, stating that appellant’s lumbar condition was an “ongoing problem from his work
injury of 1985.” The Board finds that the contradictory nature of his opinion further diminishes
its probative quality.13
The Board finds that the medical evidence is insufficient to establish that appellant
sustained a worsening of the accepted lumbar injuries that would necessitate modification of the
January 28, 1998 wage-earning capacity determination. Therefore, the Office’s October 31,
2006 decision is proper under the law and the facts of the case.
CONCLUSION
The Board finds that the Office properly denied appellant’s request to modify the wageearning capacity decision of January 28, 1998.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 31, 2006 is affirmed.
Issued: June 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

13

Kathy A. Kelly, 55 ECAB 206 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, KIRKWOOD POST
OFFICE, St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0255
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On November 14, 2019 appellant, through counsel, filed a timely appeal from an
October 24, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the October 24, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a re currence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
FACTUAL HISTORY
On April 19, 2004 appellant, then a 34-year-old city mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed metatarsalgia and chondromalacia of the
patella due to factors of her federal employment, including continuous walking, standing, stair
climbing, and carrying a mail satchel. She noted that she first became aware of her condition and
its relation to her federal employment on February 6, 2004. On the reverse side of the claim form,
appellant’s supervisor noted that she was placed on limited duty on February 7, 2014 with
restrictions of three hours of continuous walking. On October 5, 2007 OWCP accepted her claim
for bilateral plantar fibromatosis and bilateral tarsal tunnel syndrome.
On August 19, 2014 Dr. Shari L. Kaminsky, a podiatrist, provided permanent work
restrictions for an eight-hour day consisting of intermittent walking for one hour, intermittent
standing for two hours, and operating a motor vehicle for one hou r. She also provided lifting
restrictions of no more than 10 pounds.
In a December 16, 2014 form report, Dr. Kaminsky diagnosed plantar fasciitis as well as
tarsal tunnel syndrome and opined that appellant was totally disabled from work from
September 25, 2014 through January 9, 2015. She indicated that appellant could resume regular
work on January 9, 2015.
On December 28, 2014 and January 9, 2015 appellant filed claims for compensation (Form
CA-7) for total disability beginning September 25, 2014 through January 9, 2015.
In a January 16, 2015 development letter, OWCP advised appellant of the deficiencies of
her claim. It requested that she submit additional factual and medical evidence supporting her
claim for total disability beginning September 25, 2014. OWCP further provided appellant with a
questionnaire for completion and requested a report from her physician addressing the relationship
between her disability and her employment injury. It afforded her 30 days to submit the necessary
evidence. No response was received.
By decision dated March 6, 2015, OWCP denied appellant’s claim for a recurrence of total
disability commencing September 25, 2014.
On February 29, 2016 appellant requested reconsideration of the March 6, 2015 decision
and submitted additional evidence in support of her claim.
An August 20, 2014 electromyogram and nerve conduction velocity (EMG/NCV) study
demonstrated bilateral tarsal tunnel syndrome, mild on the right, and moderate on the left.
In notes dated October 16 and November 18, 2014, Dr. Kaminsky found appellant totally
disabled and released her to work without restrictions on November 3, 2014 and December 12,
2014, respectively. On January 29, 2015 she found appellant disabled from work for the period
September 25, 2014 through March 2, 2015.
2

In a January 29, 2015 treatment note, Dr. Kaminsky diagnosed tarsal tunnel syndrome. She
related that appellant felt her foot pain was extreme, but that she was spending very little time on
her feet at work. Dr. Kaminsky noted pain with palpation of the base of the right second toe and
the second metatarsal head as well as the right second intermetatarsal space. She also reported a
positive Tinel’s sign at the tarsal tunnel bilaterally, as well as pain upon palpation of the medial
tarsal area, the flexor halluces brevis, and the arch. Dr. Kaminsky found that she was experiencing
chronic changes from her long-term tarsal tunnel syndrome and recommended a tarsal tunnel
decompression. She noted that appellant was no longer taking prescribed pain medication, which
had relieved some of her foot pain.
On February 13, 2015 Dr. Kaminsky completed a form report diagnosing tarsal tunnel
syndrome and indicating that appellant was totally disabled from work through June 25, 2015. On
March 2, 2015 she again found that appellant was totally disabled from work for the period
September 25, 2014 through June 25, 2015.
On February 13, 2015 appellant responded to OWCP’s development questionnaire and
submitted additional medical evidence. She attributed her recurrence of total disability on
September 25, 2014 to chronic changes from tarsal tunnel syndrome.
On May 6, 2015 Dr. Kaminsky performed a surgical right tarsal tunnel decompression.
Appellant provided notes beginning June 11, 2015 from Brian Harthill, a physical therapist.
On June 24, 2015 Dr. Kaminsky found that appellant was totally disabled from work for
the period September 25, 2014 through September 1, 2015. In a follow-up note dated July 13,
2015, she indicated that appellant could return to light-duty work. Dr. Kaminsky found that
appellant was totally disabled from work for the period September 25, 2014 through July 13, 2015.
Through a separate July 13, 2015 form report, she found that she could returned to light-duty work
with her prior restrictions.
On July 15, 2015 the employing establishment offered appellant a permanent light-duty
position as an accounting support technician. Appellant accepted the position on that date.
In a February 22, 2016 attending physician’s report (Form CA-20), Dr. Kaminsky
diagnosed chronic changes from long-term tarsal tunnel syndrome, including EMG findings, a
positive Tinel’s sign, and musculoskeletal swelling. She checked a box marked “Yes” indicating
that appellant’s condition was caused or aggravated by employment activities and listed walking,
standing, and weight-bearing of postal equipment. Dr. Kaminsky found that appellant was totally
disabled for the period September 25, 2014 through July 13, 2015.
By decision dated May 27, 2016, OWCP denied modification of the March 6, 2015
decision.
On May 23, 2017 appellant resubmitted her August 20, 2014 EMG study. She also
provided a January 22, 2015 right foot magnetic resonance imaging (MRI) scan which
demonstrated mild intermetatarsal bursitis situated between the heads of the second and third
metatarsals.
On December 9, 2016 appellant provided additional physical therapy notes from
Mr. Harthill.
3

In a note dated April 13, 2017, Dr. Kaminsky reviewed appellant’s medical treatment for
tarsal tunnel syndrome. She opined that tarsal tunnel syndrome was caused by overuse from
walking, standing, or pedaling of an automobile for long periods of time. Dr. Kaminsky reviewed
her MRI scan and noted that her symptoms of pain in the right second and third intermetatarsal
spaces was consistent with pain that could radiate from tarsal tunnel syndrome. She noted that
appellant did not have a neuroma or mass on MRI scan. Dr. Kaminsky provided her findings on
physical examination including positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon
palpation of the medial tarsal tunnel, flexor hallucis brevis, and the arch. She opined that appellant
was having chronic changes from the long-term tarsal tunnel syndrome and that she believed that
she had a neurological origin for her pain, which was why she recommended tarsal tunnel
decompression. Dr. Kaminsky noted that during the period of disability from September 25, 2014
through July 13, 2015 that she was unable to alleviate her foot pain and felt that keeping her off
work with rest and pain medication would help her functionally.
On May 24, 2017 appellant requested reconsideration of the May 27, 2016 decision.
By decision dated November 16, 2017, OWCP denied modification.
In an undated report, Dr. Kaminsky opined that appellant had experienced a spontaneous
worsening of her work-related tarsal tunnel syndrome due to chronic changes that rendered her
unable to work from September 25, 2014 until July 13, 2015. She noted that appellant had pain in
the right intermetatarsal space and the right third intermetatarsal space that was consistent with
radiating pain from tarsal tunnel syndrome. Dr. Kaminsky reported that on physical examination
she had symptoms consistent with chronic worsening of her tarsal tunnel syndrome including pain
upon palpation of the right second intermetatarsal space, and slightly to the right of the of the third
intermetatarsal space, positive Tinel’s sign of the tarsal tunnel, bilaterally, and pain upon palpation
of the tarsal tunnel, flexor hallucis brevis, and the arch.
On September 27, 2018 appellant, through counsel, requested reconsideration.
By decision dated February 25, 2019, OWCP denied modification.
OWCP continued to receive medical evidence. In a report dated April 16, 2019,
Dr. Kaminsky detailed appellant’s medical history, including her surgery on March 25, 2015. She
noted that appellant had persistent and worsening pain in her right foot. Dr. Kaminsky diagnosed
unspecified mononeuropathy of the right lower limb.
On August 26, 2019 appellant, through counsel, requested reconsideration of the
February 25, 2019 decision. She provided additional treatment notes from Dr. Kaminsky and
Dr. Jerry M. Liddell, a podiatrist and associate of Dr. Kaminsky, dated July 14 through
December 16, 2014. Counsel contended that Dr. Kaminsky’s notes were sufficient to meet
appellant’s burden of proof to establish a recurrence of total disability on September 25, 2014.
On July 24, 2014 Dr. Kaminsky noted appellant’s report of bilateral foot pain and that she
had not sought treatment for several years. She recounted that appellant reported throbbing,
shooting, radiating, burning, tingling, numbness, and stiffness in her feet, worse on the right.
Appellant’s pain continued to increase and was aggravated by walking and weight-bearing, but
noted that she continued performing light-duty work. On physical examination Dr. Kaminsky
noted no overt deformities and normal arch structure. She found pain upon compression of the
common peroneal nerve bilaterally, tarsal tunnel bilaterally, and under the metatarsal heads one
4

through five, bilaterally. Dr. Kaminsky also found pain upon palpation of the heels plantarly
bilaterally. She diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic
ankle and foot pain. Dr. Kaminsky noted that appellant’s physical examination was normal except
for reports of pain, that her foot structure was good, and that she did not exhibit fat pad atrophy.
She also reported that her neurological examination was normal, but recommended an EMG study.
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work lately because
of increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell found a negative Tinel’s sign over the tarsal tunnel bilaterally. He
reported tenderness with palpation in the intermetatarsal spaces centrally with the most intense
area being the second intermetatarsal space bilaterally.
In an October 16, 2014 treatment note, Dr. Kaminsky again recounted appellant’s
description of her foot pain. On physical examination, she found the same pain pattern as
demonstrated on July 24, 2014. Dr. Kaminsky noted that appellant’s EMG study showed tarsal
tunnel syndrome bilaterally. She again reported that, other than pain, appellant’s physical
examination seemed to be very normal. Dr. Kaminsky found that compression around the tarsal
tunnel was giving appellant pain at the ankle, heel, arch, and on the entire plantar service of the
feet bilaterally. She concluded that appellant had failed conservative care and needed to consider
surgical correction.
On November 18, 2014 Dr. Kaminsky reported that appellant had injured her right second
toe on a hard object one month earlier. She found that appellant had torn the dorsal ligament of
the distal interphalangeal joint of the right second toe. Dr. Kaminsky examined appellant on
December 16, 2014 and noted that she had traumatically torn a ligament in the dorsal capsule of
her right second toe. She opined that appellant’s problem was not caused by the injury to the right
second toe. Dr. Kaminsky recommended further electrodiagnostic testing to ensure that she was
not overlooking secondary signs of tarsal tunnel syndrome or capsular injury the right second
metatarsal phalangeal joint.
By decision dated October 24, 2019, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee ha s returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work when a light-duty assignment, made
specifically to accommodate an employee’s physical limitations due to work-related injury or
illness, is withdrawn or altered so that the assignment exceeds the employee ’s physical limitations.
A recurrence does not occur when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties, or a reduction-in-force.5

4

20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020).

5

Id.

5

When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury -related
condition or a change in the nature and extent of the limited-duty job requirements.6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. 7 Where no such rationale is present, the medical evidence is
of diminished probative value.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.
First, the Board notes that appellant did not allege, and the evidence does not establish, a
change in the nature and extent of appellant’s light-duty work requirements. Additionally, there
is no indication in the record that the employing establishment withdrew a light-duty work
assignment. The remaining issue is whether the medical evidence demonstrated a worsening of
appellant’s accepted bilateral foot conditions such that she could not perform limited -duty work.
After returning to part-time limited-duty work on May 22, 2010, appellant again sought
medical treatment from Dr. Kaminsky beginning on July 24, 2014. Thereafter, Dr. Kaminsky
diagnosed chronic tarsal tunnel syndrome, chronic plantar fasciitis, and chronic ankle and foot
pain. On August 19, 2014 she provided permanent work restrictions. Appellant also sought
treatment October through December 2014. In a December 16, 2014 form report, Dr. Kaminsky
diagnosed plantar fasciitis as well as tarsal tunnel syndrome and found that appellant was totally
disabled from September 25, 2014 through January 9, 2015. She did not, however, offer an
opinion on causal relationship between appellant’s claimed disability and factors of her federal
employment. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition or disability is of no probative value. 9 As such, these reports
are of no probative value and do not establish appellant’s disability claim.
In a series of reports, she attributed appellant’s disability from work to chronic changes
from her long-term tarsal tunnel syndrome. Dr. Kaminsky noted that appellant’s symptoms of
pain in the right second and third intermetatarsal spaces were consistent with pain that could radiate
from tarsal tunnel syndrome. She also listed appellant’s findings on physical examination
6

S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

7

J.M., Docket No. 19-1517 (issued January 29, 2020); Ronald A. Eldridge, 53 ECAB 218 (2001); Mary A. Ceglia,
Docket No. 04-0113 (issued July 22, 2004).
8

Id.

9

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

6

including positive Tinel’s sign of the tarsal tunnel bilaterally and pain upon palpation of the medial
tarsal tunnel, flexor hallucis brevis, and the arch. The Board notes that pain is a symptom, not a
compensable medical diagnosis. 10 Dr. Kaminsky did not provide medical rationale supporting an
objective worsening of the accepted conditions between September 25, 2014 and July 14, 2015
such that appellant could no longer perform her modified-duty position. The Board has held that
reports are of limited probative value regarding causal relationship if they do not contain medical
rationale explaining how a given medical condition/disability was related to the accepted
employment injuries.11
In a February 22, 2016 attending form report, Dr. Kaminsky diagnosed chronic changes
from long-term tarsal tunnel syndrome, including EMG findings, a positive Tinel’s sign, and
musculoskeletal swelling. She checked a box marked “Yes” indicating that appellant’s condition
was caused or aggravated by employment activities and listed walking, standing and weight bearing of postal equipment. Dr. Kaminsky found that she was totally disabled from
September 25, 2014 through July 13, 2015. The Board has held that a report that addresses causal
relationship with an affirmative checkmark, without medical rationale explaining how the
employment injuries resulted in the period of disability, is of diminished probative value and
insufficient to establish causal relationship.12
On August 5, 2014 Dr. Liddell noted that appellant had been unable to work because of
increased symptoms. On physical examination he found a positive Tinel’s sign on the dorsal of
her feet bilaterally which may be intermediate dorsal cutaneous nerve or deep peroneal nerve
distribution. Dr. Liddell also found a negative Tinel’s sign over the tarsal tunnel bilaterally.
However, he did not address whether appellant was disabled from work during the claimed period.
As Dr. Liddell did not address the claimed dates of disability, his opinion is insufficient to establish
her claim.13
Appellant also submitted diagnostic studies. The Board has held, however, that diagnostic
studies, standing alone, lack probative value as they do not address whether the employment injury
caused any period of disability. 14 These reports are therefore insufficient to establish the claim.

10

R.S., Docket No. 19-1131 (issued April 2, 2020).

11

G.R., Docket No. 19-0940 (issued December 20, 2019); D.L., Docket No. 19-0900 (issued October 28, 2019);
Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).
12

J.B., Docket No. 18-1751, 19-0793 (issued May 6, 2019); S.C., Docket No. 18-1242 (issued March 13, 2019);
Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).
13

M.L., Docket Nos. 18-1058, 18-1224 (issued November 21, 2019); T.L., Docket No. 18-0934 (issued May 8,
2019); Sandra D. Pruitt, 57 ECAB 126 (2005).
14

M.J., Docket No. 19-1287 (issued January 13, 2020); see J.S., Docket No. 17-1039 (issued October 6, 2017).

7

Appellant also submitted notes from Mr. Harthill, a physical therapist. As physical
therapists are not considered physicians under FECA, his reports are insufficient to establish
entitlement to compensation benefits. 15
As the medical evidence of record is insufficient to establish a recurrence of disability from
work for the period September 25, 2014 through July 14, 2015 causally related to the accepted
employment conditions, the Board finds that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability from work for the period September 25, 2014 through July 14, 2015 causally related to
the accepted employment conditions.

Section 8101(2) of FECA 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.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); J.B., supra note 12; 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).
15

8

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1793
Issued: April 24, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 24, 2018 appellant, through counsel, filed a timely appeal from an
August 28, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

1

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

Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated March 12, 2019, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 18-1793 (issued March 12, 2019).

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral hip and left
knee conditions causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 29, 2018 appellant, then a 60-year-old letter carrier, filed an occupational disease
claim (Form CA-2) for bilateral hip and left knee injuries resulting from the performance of his
federal duties. He claimed that he first became aware of his conditions and their relationship to
his federal employment on July 20, 2017. In an accompanying narrative statement dated June 1,
2017, appellant described his work duties, noting in detail the walking, climbing, lifting, carrying,
squatting, reaching, stooping, twisting, foot pivoting, pushing, and pulling he had to perform while
casing and delivering hundreds of pounds and mail and parcels on a daily basis. He also related
that he slipped and fell 372 times or more while on his route. Appellant noted that he performed
very little vigorous physical activity outside of work.
On the reverse side of the claim form appellant’s postmaster controverted the claim,
contending that appellant had told him many times that he was a marathon runner, but this was not
mentioned in a medical evaluation. He further contended that it had been 10 months since
appellant became aware of the alleged correlation, yet he never reported it to anyone and continued
to perform the duties that allegedly caused his conditions.
In support of his claim, appellant submitted a medical report dated November 6, 2014 from
Dr. Louis A. Maggio, a Board-certified internist, who diagnosed mild soreness versus early
bursitis and epicondylitis.
Appellant also submitted bilateral hip and left knee x-ray reports dated August 25, 2016
from Dr. Robert L. Gore, a Board-certified diagnostic radiologist. In the bilateral hip x-ray report,
Dr. Gore provided an impression that degenerative changes were present in both hips. He also
provided an impression of no acute fracture or dislocation of the right or left hip. In the left knee
x-ray, Dr. Gore provided an impression that degenerative changes were present. He also provided
an impression of no acute fracture or dislocation.
A letter dated September 5, 2016 by Dr. Justin W. Kung, a Board-certified diagnostic
radiologist, indicated that he had reviewed the August 25, 2016 bilateral knee and hip x-ray
reports. Dr. Kung found that overall there was mild degenerative change in the medial
3

5 U.S.C. § 8101 et seq.

4

Following the issuance of OWCP’s August 28, 2018 decision, appellant submitted new evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

compartment of the right knee and mild degenerative change in the right and left femoroacetabular
compartments.
In a report dated May 5, 2018, Dr. George P. Whitelaw, an attending Board-certified
orthopedic surgeon, noted that he examined appellant on July 20, 2017. He also noted that he had
reviewed medical records and appellant’s statement describing in detail his letter carrier work
activities. Dr. Whitelaw indicated that appellant worked as a letter carrier at the employing
establishment for 31 years. Appellant’s work duties included walking, lifting, carrying, standing,
bending, squatting, reaching, stooping, twisting, foot pivoting, reaching, pushing, and pulling
while casing and delivering 200 pounds of mail and parcels. During the winter months, he slipped,
tripped, stumbled, and fell at least a dozen times. Appellant performed very little other vigorous
physical activity outside of work.
Dr. Whitelaw reviewed an American Academy of Orthopaedic Surgeons (AAOS)
inventory form and Dr. King’s September 5, 2016 bilateral knee and hip x-rays. He noted
appellant’s medical history and diagnosed bilateral hip and left knee degenerative arthritis.
Dr. Whitelaw opined that appellant had reached maximum medical improvement (MMI) as of the
date of his examination. He further opined that his lower extremity osteoarthritis was causally
related to the cumulative work stresses “given the very lenient contribution standard for causal
relationship used by the Department of Labor (DOL), especially the deﬁnition of acceleration.”
Dr. Whitelaw maintained that these work stresses occurred over a period of years, resulting in the
breakdown of the weight-bearing articular cartilage in the lower extremities, which left appellant
in his current state. He noted the definition of arthritis and related that the condition was caused
by repetitive microtraumas associated with heavy impact loading activities of the kind and type
described by appellant’s statement describing his regular job responsibilities. Dr. Whitelaw
related that there was voluminous scientiﬁc evidence that factors contributing to progressive
degenerative changes within weight-bearing joints of the lower extremities included heavy impact
loading activities such as standing, walking, kneeling, stooping, bending, and twisting. He
specifically indicated medical science and biomechanics determined that climbing stairs loaded
the lower body joints three times the body weight and descending stairs loaded the lower body
joints six times the body weight. Dr. Whitelaw concluded, therefore, that a 35-pound mail satchel
of the type that appellant regularly carried would add 105 pounds of effective weight when
appellant ascended stairs and 210 pounds of effective weight when he descended stairs. He
indicated that medical science and biomechanics had also determined that greater weight caused
greater stresses on the lower extremity joints, thus, increasing inﬂammation and contributing to
the process that deteriorated articular cartilage, i.e., contributed to osteoarthritis. Dr. Whitelaw
maintained that there was no medical dispute that a letter carrier job over a long career aggravated
and accelerated arthritis due to continuous walking, stopping, squatting, stair climbing/descending,
and the like, which appellant experienced during his extensive career as a letter carrier. He
indicated that appellant was required to perform various impact loading activities on a regular basis
over a series of decades. Dr. Whitelaw related that, while his repetitive high-impact loading work
activities did not necessarily cause the arthritis in the ﬁrst instance, there was no doubt that they
contributed to the development, aggravation, exacerbation, acceleration, and progression of his
lower extremity arthritis. He opined that, based on what medical science knows about arthritis and
appellant’s medical history and job activities, the accumulative stresses of his work activities, at a
bare minimum, contributed to his arthritis and, thus, medical causation was established by DOL’s
own standards. Dr. Whitelaw advised that, by the very nature of arthritis, this progression,
3

aggravation, and acceleration was permanent in nature as cartilage never regrows or goes back to
its prior state after impact loading activities destroy it. While the symptoms of arthritis of the
lower extremities (pain, swelling, stiffness, aching, and loss of motion) may change from day to
day, the loss of the articular surface was permanent and irreversible.
Dr. Whitelaw related that, even after appellant stopped working, his work activities still
had a permanent effect as his arthritic condition would not cease simply because he had stopped
working since he would never regain the cartilage he had lost. He determined that appellant had
14 percent permanent impairment of the left lower extremity in accordance with the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
In a development letter dated June 26, 2018, OWCP requested that the employing
establishment respond to appellant’s allegations and provide a copy of his position description.
On July 9, 2018 OWCP received the employing establishment’s response to its June 26,
2018 development letter. In an undated letter, the postmaster again controverted the claim arguing
that appellant’s participation in marathons “may have” contributed to his claimed work-related
condition, that he failed to timely report his injury, and that he continued to participate in the
employment duties that allegedly caused his injury. He submitted an official description of
appellant’s carrier (city) position.
In a development letter dated July 26, 2018, OWCP notified appellant of the factual and
medical deficiencies of his claim. It provided a factual questionnaire for his completion. OWCP
also requested additional medical evidence, including a narrative medical report from his
physician, which contained a detailed description of findings and diagnoses, explaining how his
work activities caused, contributed to, or aggravated his medical condition. It explained that
appellant’s physician should rule out other causes for his condition such as age, weight, preexisting
medical conditions, or other injuries outside of his federal employment. OWCP also explained
that his physician should explain whether running in marathons caused or aggravated appellant’s
conditions. It afforded appellant 30 days to submit the requested evidence.
On August 13, 2018 appellant responded to OWCP’s questionnaire. He related that he first
treated with Dr. Maggio in 2014 regarding his right hip condition and in 2016 regarding his left
hip and left knee conditions. Appellant had no prior injuries or conditions to his hips and left knee.
He listed his strenuous or repetitive activities outside his federal employment, which included
running in the San Diego marathon in 1999 and Boston marathon from 2000 to 2004. Appellant
had not run in a marathon since 2004. He noted that he did not work for periods of time due to his
nonwork-related heart and back conditions. Appellant did not report his dozens of slips and
stumbles over the years because he often treated them with over-the-counter pain medication, ice,
and rest.
In a letter dated August 15, 2018, appellant’s prior counsel also responded to OWCP’s
development letter. She contended that Dr. Whitelaw’s May 5, 2018 report was sufficient to

5

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

4

establish that appellant’s repetitive and extensive impact loading activities during the course of his
federal employment caused his bilateral hip and left knee arthritis.
An October 1, 2013 report by Dr. Maggio was received. Dr. Maggio examined appellant,
recommended stretches to prevent plantar fasciitis, and offered a podiatry evaluation if
bothersome.
A partial copy of an undated lower limb questionnaire completed by appellant indicated
that, during the past week, his lower limb was moderately stiff and mildly swollen. Appellant
noted that it was mildly painful for him to walk on flat surfaces and lie in bed at night. It was
moderately painful for him to go up or down stairs. Appellant did not need support or assistance
at all. He had a little bit of difficulty with putting on or taking off socks/stockings during the past
week.
By decision dated August 28, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish that his diagnosed bilateral
hip and left knee conditions were causally related to the accepted employment factors. It found
that Dr. Whitelaw’s May 5, 2018 report was not based on a complete and accurate factual history
as he did not mention appellant’s marathon activities. OWCP further found that appellant failed
to submit all the medical reports regarding the treatment of his bilateral hip and left knee
conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in 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;9 (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition;10 and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for which
6

Supra note 3.

7

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

8

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

9

Michael R. Shaffer, 55 ECAB 386 (2004).

10

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

5

compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.11
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted a May 5, 2018 report from his attending
physician, Dr. Whitelaw. Dr. Whitelaw noted that he had examined appellant and provided a
detailed description of appellant’s work duties. He diagnosed bilateral hip and left knee
degenerative arthritis. Dr. Whitelaw opined that the diagnosed conditions were caused,
contributed to, and aggravated by appellant’s work duties, including walking, lifting, carrying,
standing, bending, squatting, reaching, stooping, twisting, foot pivoting, reaching, pushing, and
pulling while casing and delivering mail and parcels weighing 200 pounds on a daily basis. He
also provided medical rationale explaining how and why the diagnosed conditions were caused by
the accepted employment factors. `
While Dr. Whitelaw’s opinion is an uncontroverted affirmative opinion on causal
relationship.
The Board thus finds that the medical evidence of record is sufficient to require further
development of the case record.13 It is well established that proceedings under FECA are not
adversarial in nature and, while the claimant has the burden of proof to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.14
The Board will remand the case for further development of the medical evidence. On
remand OWCP should prepare a statement of accepted facts which includes all preexisting
conditions as well as the accepted conditions and refer appellant to an appropriate Board-certified
physician to obtain a rationalized opinion as to whether his bilateral hip and left knee conditions
are causally related to his federal employment duties, directly or through aggravation,

11

Beverly A. Spencer, 55 ECAB 501 (2004).

12

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

13

S.T., Docket No. 18-1119 (issued March 6, 2019).

14

Phillip L. Barnes, 55 ECAB 426 (2004); William J. Cantrell, 34 ECAB 1233 (1993); see also Virginia Richard,
claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB
699 (1985).

6

precipitation, or acceleration.15 Following this and any other further development deemed
necessary, OWCP shall issue a de novo decision on his occupational disease claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: April 24, 2019
Washington, DC

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

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

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

15

S.T., supra note 13; P.A., Docket No. 09-0319 (issued November 23, 2009).

7


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

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

Docket No. 10-196
Issued: October 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 26, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 6, 2008, which affirmed the denial of
her claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability or of a medical condition commencing on November 18, 2005 causally
related to an accepted April 12, 1990 employment injury.
FACTUAL HISTORY
On April 12, 1990 appellant, then a 26-year-old collection driver, injured her low back
while squatting and lifting at work. She stopped work. The Office accepted the claim for a
lumbar sprain. On April 29, 1992 appellant accepted a permanent modified-duty position
working eight hours a day as a carrier. She accepted a limited-duty position as a carrier on

April 23, 1997, after becoming permanent and stationary. The full-time position limited lifting
to no more than 20 pounds up to four hours daily. Appellant received wage-loss compensation
benefits.
In a December 17, 2003 report, Dr. Leslie H. Kim, a Board-certified orthopedic surgeon,
diagnosed lumbar degenerative disc disease and lumbar sprain. In appellant’s portion of the
form report, she noted that she sustained an injury on December 10, 1991. Dr. Kim noted that
appellant related that she was a driver at the employing establishment and had to “go to some of
the buildings which contain very heavy sacks.” He advised that appellant was able to perform
her regular work. Dr. Kim did not note any work restrictions.
On November 18, 2005 appellant filed a notice of recurrence for that date. She requested
that her claim be reopened for medical treatment.1
In a letter dated April 28, 2006, the Office informed appellant of the evidence needed to
support her claim and requested that she submit such evidence within 30 days.
Appellant submitted a May 9, 2006 statement. She stated that her supervisor wanted a
note from her doctor. Appellant subsequently found out that her case was closed. She advised
that she continued work in her light-duty job.
By decision dated August 18, 2006, the Office denied appellant’s claim for a recurrence
of a medical condition.
On June 30, 2007 appellant requested reconsideration. She stated that she “wasn’t
putting in a claim for a recurrence,” but was advised by her supervisor that her claim needed to
be reopened so she could see a physician and obtain medical restrictions for her employer.
In a duty status report dated April 5, 2007, Dr. Kim advised that appellant was lifting
heavy sacks and sustained a lower back injury. He diagnosed degenerative disc disease, a
permanent back injury, lumbar sprain and prescribed limited-duty restrictions. On that same
date, Dr. Kim completed a questionnaire from the employing establishment and advised that
appellant’s work injury had not resolved and that her lumbar strain was permanent.
In a September 28, 2007 decision, the Office denied modification of its August 18, 2006
decision. It noted that Dr. Kim provided a December 10, 1991 date of injury and described
appellant having to go to buildings with heavy sacks. The Office advised appellant that this
description implicated a possible new occupational disease or represented an intervening event.
On March 3, 2008 appellant requested reconsideration. On February 11, 2008 she
requested that her claim be reopened so that she could continue in her light-duty status.
Appellant provided a copy of Dr. Kim’s April 5, 2007 duty status report and response to the
employing establishment. The Office received an October 24, 2007 request for light duty and a
light-duty work ability evaluation of the same date.

1

The Office closed appellant’s file on June 16, 1992.

2

In a January 10, 2008 report, Dr. Kim noted appellant’s history of injury and treatment
and examined appellant. He noted that appellant was first seen in December 1990, treated
conservatively, and “released from active care after several visits.” Appellant did not return until
December 16, 2003 with complaint of low back pain. Dr. Kim explained that appellant
continued to work although her symptoms worsened over time until she sought treatment again
in 2003. He stated that there was “no intervening trauma or aggravating activity.” Dr. Kim
opined that appellant’s history of chronic mechanical back pain was most consistent with lumbar
discogenic pain. He diagnosed chronic lumbar musculoligamentous injury and “probable
underlying degenerative dis[c] disease, aggravated by work trauma.” Dr. Kim stated that
appellant most likely had a progression of her chronic work-related back condition and there was
no evidence of any new injury or back condition.
By decision dated May 14, 2008, the Office denied modification of its prior decisions.
On August 11, 2008 appellant filed a claim for total disability compensation from
June 30 to August 15, 2008. She contended that the employer did not provide light duty. On
September 10, 2008 appellant requested reconsideration and submitted copies of job offers that
she signed on December 18, 1990, April 29, 1992 and April 23, 1997.
In a December 11, 1990 report, Dr. Kim diagnosed lumbar disc injury and noted that he
was continuing to treat appellant for a work-connected injury sustained on April 12, 1990. He
advised that appellant remained totally and temporarily disabled from her regular duties.
Dr. Kim opined that, if there was “no further change in her condition, she can probably be
considered permanent and stationary with regards to disability arising out of the work injury on
April 12, 1990.”
In a letter received by the Office, on September 10, 2008, appellant stated that she had
been injured since April 12, 1990. She also noted that there were two errors in documentation
regarding her claim. Appellant also stated that she was working her new job at that time and
would not have been lifting heavy sacks.
By decision dated November 6, 2008, the Office denied modification of its prior
decisions, finding that the medical evidence was insufficient to establish her claim.
LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations defines “recurrence of disability” as an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness, without an intervening
injury or new exposure to the work environment that caused the illness.2

2

20 C.F.R. § 10.5(x) (2002). See Carlos A. Marrero, 50 ECAB 117 (1998).

3

An employee has the burden of establishing that she sustained a recurrence of a medical
condition3 that is causally related to her accepted employment injury. A claimant must furnish
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the condition is causally related to the employment injury and
supports that conclusion with sound medical rationale.4 Where no such rationale is present, the
medical evidence is of diminished probative value.5
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that he can perform the light-duty position, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that he cannot perform such light duty. As part of this burden, the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty job requirements.6
ANALYSIS
The Office accepted that on April 12, 1990 appellant sustained a lumbar strain. On
November 18, 2005 appellant alleged a recurrence of her condition for which she sought medical
treatment. She advised that she wanted medical treatment and needed a note from her doctor in
order to continue with her light-duty job. The Office requested that appellant provide medical
evidence that would establish a causal relationship between her current condition and her work
injury.
The Board finds that appellant did not submit sufficient medical evidence to establish
disability or a need for medical treatment commencing November 18, 2005, causally related to
her April 12, 1990 employment injury. The Board notes that there is no evidence of record to
establish a change in the nature and extent of the light-duty job requirements necessitated by the
accepted back sprain.
The medical evidence in support of appellant’s claim is from Dr. Kim who provided a
December 11, 1990 and December 17, 2003 report. As these reports predate the period of the
claimed recurrence in 2005, they are not directly relevant to the issue of whether appellant
sustained a recurrence of disability or need for medical treatment. In a duty status report dated
April 5, 2007, Dr. Kim noted that appellant was lifting heavy sacks and sustained a lower back
injury. He prescribed limited-duty restrictions and indicated that appellant’s work injury had not
resolved. Dr. Kim advised that her diagnosed lumbar strain and degenerative disc disease were
3

“Recurrence of medical condition” means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).
4

Ronald A. Eldridge, 53 ECAB 218 (2001).

5

Albert C. Brown, 52 ECAB 152 (2000).

6

Conard Hightower, 54 ECAB 796 (2003).

4

permanent. The Board notes that degenerative disc disease is not a condition accepted by the
Office.7 Dr. Kim did not address the issue of any disability commencing November 18, 2005
related to the accepted lumbar sprain. He did not explain how any need for medical treatment,
after appellant’s release from his care, was due to the accepted 1990 lumbar sprain. This is
important as her claim of recurrence is some 15 years following the accepted lumbar strain. This
evidence is of diminished probative value.
In a January 10, 2008 report, Dr. Kim provided a history of treating appellant in
December 1990 for several visits and released her from his care. Thereafter, he did not see her
again until December 16, 2003, for complaint of lower back pain. Dr. Kim explained that
appellant was able to work but her symptoms had worsened over the years until she sought
treatment in 2003. He stated that there was “no intervening trauma or aggravating activity” and
explained that her history of chronic mechanical back pain was most consistent with lumbar
discogenic pain. Dr. Kim did explain how there was a spontaneous change in appellant’s lumbar
sprain condition such that she required treatment in 2003. He did not explain how her accepted
condition had progressed since 1990 as how such worsening would be due to the accepted soft
tissue injury.8 Furthermore, Dr. Kim did not address continuing disability on or after
November 18, 2005 or provide medical reasoning to explain how her present need for treatment
was due to the 1990 back sprain.9 Thus, his reports are of limited probative value.
The record indicates that the employer stopped providing light-duty work for appellant on
June 30, 2008. While appellant initially worked light duty due to her work injury, Dr. Kim’s
January 10, 2008 report establishes that he had previously released her from care after her initial
visits in December 1990 and did not see her again until December 16, 2003. The record contains
no bridging medical evidence to establish that appellant’s continuing need for light duty was
necessitated by the April 12, 1990 lumbar sprain and not due to other diagnosed conditions, such
as degenerative disc disease.10 Dr. Kim’s reports do not provide adequate medical rationale to
explain why a 1990 back sprain, from which he released appellant from care, necessitated
continuing work restrictions.11 Thus, there is insufficient medical evidence supporting that
appellant’s continuing need for work restrictions as of June 30, 2008 was due to the 1990 back
sprain.

7

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (for conditions not accepted or approved
by the Office, the claimant bears the burden of proof to establish that the condition is causally related to the work
injury through the submission of rationalized medical evidence).
8

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (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).
9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
10

Regarding the significance of bridging symptoms, see Robert H. St. Onge, 43 ECAB 1169, 1175 (1992).

11

See C.S., 60 ECAB ___ (Docket No. 08-2218, issued August 7, 2009) (when a light-duty position is withdrawn,
it is the claimant’s burden to establish that any increase in disability for work is due to the accepted injury, rather
than another cause).

5

Appellant has not submitted sufficient medical evidence establishing that she sustained a
recurrence of disability or need for medical treatment due to her accepted lumbar strain. She has
not met her burden of proof.
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability commencing November 18, 2005 causally related to an accepted April 12, 1990
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0795
Issued: August 21, 2019

Case Submitted on the Record

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

JURISDICTION
On March 1, 2019 appellant filed a timely appeal of the February 8, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right knee
condition causally related to the accepted December 4, 2018 employment incident.
FACTUAL HISTORY
On December 4, 2018 appellant, then a 31-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on December 4, 2018 she sustained a dislocated right
patella when she went to step into a long-life vehicle (LLV) while in the performance of duty. In
1

5 U.S.C. § 8101 et seq.

a supplemental statement received on December 10, 2018, she explained that her “knee went out”
when she stepped into the LLV and she was told at the hospital that she dislocated her kneecap.
Appellant stopped work on the date of injury.
In discharge instructions dated December 4, 2018, Dr. Kenneth Franckowiak, an osteopath
Board-certified in emergency medicine, noted that appellant presented to the emergency
department with right knee pain and he diagnosed her with a dislocated patella (kneecap).
OWCP also received the first page of an authorization for examination and/or treatment
(Form CA-16), which indicated that appellant was authorized to seek medical treatment for her
December 4, 2018 employment incident.
In a December 31, 2018 development letter, OWCP indicated that when the claim was
received, it appeared to be a minor injury that resulted in minimal or no lost time from work. As
such, it had administratively approved payment of a limited amount of medical expenses without
formally considering the merits of her claim. OWCP advised appellant of the deficiencies of her
claim. It requested additional factual and medical evidence from her, including a narrative medical
report from her attending physician. OWCP afforded appellant 30 days to respond
In a medical report dated December 17, 2018, Megan Lumsden, a physician assistant,
referred appellant to physical therapy and prescribed a sport knee brace with open patella. OWCP
also received an illegible prescription of even date from Ms. Lumsden.
By decision dated February 8, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence submitted was insufficient to establish that her medical condition was
causally related to the accepted work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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
2

Id.

3

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

S.C., id.; 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
S.C.,id.;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).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical background
of the claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted December 4, 2018 employment incident.
In his discharge instructions, Dr. Franckowiak diagnosed a dislocated patella. However,
he did not opine as to the cause of appellant’s condition. 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.11 Therefore, Dr. Franckowiak’s report is insufficient to
establish appellant’s claim.
Appellant also submitted a report from a physician assistant. This report does not constitute
competent medical evidence because physician assistants are not considered physicians as defined
under FECA.12 As this report is not countersigned by a qualified physician, the Board finds that
this report has no probative value.13

6

R.C., Docket No. 19-0376 (issued July 15, 2019).

7

Id.

8

Id.

9

M.B., Docket No. 17-1999 (issued November 13, 2018).

10

M.L., Docket No. 18-1605 (issued February 26, 2019).

11

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

12
5 U.S.C. § 8101(2). This subsection defines a physician as surgeons, podiatrist, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
13

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); see S.Y., Docket No. 18-1814
(issued April 18, 2019); M.F., Docket No. 17-1973 (issued December 31, 2018).

3

As appellant has not submitted rationalized medical evidence establishing that her right
knee condition is causally related to the accepted factors of her federal employment, the Board
finds that she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted December 4, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4