United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0015
Issued: March 23, 2016

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 October 5, 2015 appellant filed a timely appeal of a May 29, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the issuance of the most recent merit decision of October 8, 2014 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 29, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On November 22, 2013 appellant, a 61-year-old health technician, filed an occupational
disease claim (Form CA-2) alleging that he sustained a lower back injury due to factors of his
federal employment, including many years of lifting and pulling patients in the performance of
duty. He stated that he first became aware of his condition and attributed it to his employment
on March 20, 2013. The employing establishment indicated that appellant first reported his
condition to his supervisor on March 20, 2013.
By decision dated May 19, 2014, OWCP denied the claim as appellant failed to establish
fact of injury. It found that the evidence was insufficient to establish that the alleged work
events and injuries occurred as alleged.
On July 14, 2014 appellant requested reconsideration and submitted a position
description and a memorandum dated July 1, 2014 from the employing establishment stating that
appellant’s duties included assisting and transporting patients by stretcher and wheelchair to and
from procedures at least 30 times per day, which required pushing, pulling, and lifting. He also
submitted a narrative statement dated July 8, 2014 alleging that he first injured his back at work
on August 23, 2005 while assisting a total care patient into his vehicle. Appellant further alleged
a second injury to his lower back on September 13, 2012 while assisting a patient onto a stretcher
for transport.
By decision dated October 8, 2014, OWCP denied modification of its prior decision.
On January 28, 2015 appellant requested reconsideration and submitted medical reports
and diagnostics studies dated July 12, 2002 through May 29, 2014. Two duty status reports
(Form CA-17) dated August 24 and 31, 2005 from a physician assistant diagnosed lumbar strain
and indicated on the employing establishment’s portion of the form that appellant was injured at
work on August 23, 2005 while lifting a patient into a car.3 In a March 25, 2010 report, Dr. Jan
Diehl, a radiologist, found an abnormal magnetic resonance imaging (MRI) scan of the lumbar
spine and noted that appellant twisted his back while pushing a heavy patient at work.
By decision dated May 29, 2015, OWCP denied appellant’s request for reconsideration of
the merits finding that he did not submit pertinent new and relevant evidence and did not show
that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right. It vests OWCP with discretionary authority to determine whether it will review

3

Previous duty status reports in the record contain similar histories on the employing establishment’s side of the
form.

2

an award for or against compensation.4 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).5
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.8
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.10
ANALYSIS
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a). Appellant did not demonstrate that
OWCP erroneously applied or interpreted a point of law. Moreover, he did not advance a
relevant legal argument not previously considered by OWCP.
In support of his January 28, 2015 reconsideration request, appellant submitted medical
reports and diagnostics studies dated July 12, 2002 through May 29, 2014, including two duty
status reports from a physician assistant and an MRI scan report from a radiologist. The Board
finds that submission of these reports do not require reopening appellant’s case for merit review
as they do not address the factual issue, whether the claimed work events happened as alleged.
As noted, OWCP denied the claim based on the lack of supportive factual evidence establishing
that the alleged work events and injuries occurred as alleged. The Board, therefore, finds that

4

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
5

See Annette Louise, 54 ECAB 783, 789-90 (2003).

6

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

7

20 C.F.R. § 10.607(a).

8

20 C.F.R. § 10.608(b).

9

See supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

10

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

these medical reports do not constitute pertinent new and relevant evidence.11 Therefore, they
are insufficient to require OWCP to reopen appellant’s claim for consideration of the merits.
On appeal appellant argues the merits of his claim. The Board noted above that it only
has jurisdiction over OWCP’s May 29, 2015 nonmerit decision which denied his request for
reconsideration and therefore is precluded from conducting a merit review. Appellant did not
submit any evidence to show that OWCP erroneously applied or interpreted a specific point of
law or advanced a relevant legal argument not previously considered by OWCP nor did he
submit pertinent new and relevant evidence with his request for reconsideration. The Board
finds, therefore, that he did not meet any of the necessary requirements and is not entitled to
further merit review.12
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2016
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
11

See S.P., 59 ECAB 184 (2007) (where a claimant did not establish an employment incident alleged to have
caused his or her injury, it was not necessary to consider any medical evidence).
12

See L.H., 59 ECAB 253 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Z., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1125
Issued: October 22, 2020

Case Submitted on the Record

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

JURISDICTION
On April 22, 2019 appellant filed a timely appeal from a March 6, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated October 19,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1125 (issued
October 19, 2020).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 6, 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 his burden of proof to establish a traumatic injury
in the performance of duty on June 10, 2018, as alleged.
FACTUAL HISTORY
On June 10, 2018 appellant, then a 46-year-old supervisory border patrol agent, filed a
traumatic injury claim (Form CA-1) alleging that on that day he strained his right eye during
approved physical fitness program time. He indicated that he was exercising on an elliptical
machine at the station gym at approximately 5:00 p.m. when he experienced an “odd sensation”
and pain, along with a loss of vision in his right eye, while in the performance of duty. Appellant
did not stop work. On the reverse side of the claim form, a supervisor with the employing
establishment checked a box marked “Yes” acknowledging that appellant was injured while in the
performance of duty and that his knowledge of the facts regarding the injury agreed with
statements from appellant and/or witnesses.
In Part B of an authorization for examination and/or medical treatment (Form CA-16),
attending physician’s report,4 dated June 19, 2018, Dr. Nikolas London, a Board-certified
ophthalmologist, indicated that he first examined appellant on June 11, 2018 after he experienced
sudden vision loss in his right eye. He diagnosed retinal detachment and noted that appellant
underwent surgery on June 12, 2018 to treat his condition.
On August 6, 2018 Dr. London indicated that he had seen appellant for a follow-up visit to
perform a routine postoperative examination and opined that the vision in his right eye was slightly
worse. He diagnosed lattice degeneration, pseudophakia, and retinal detachment in the right eye.
Dr. London also noted that appellant had been diagnosed with recurrent retinal detachment in the
left eye.
Appellant further submitted hospital records, preoperative diagnostic testing results, and
an operative report dated June 12, 2018 noting that he underwent retinal detachment repair surgery
that day.
In a January 30, 2019 development letter, OWCP indicated that when appellant’s claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It requested that he submit additional factual and medical evidence in
support of his claim and provided a questionnaire for his completion. OWCP explained that the
evidence submitted was insufficient to establish that the alleged employment incident occurred as
alleged. It also noted that no physician had provided a firm diagnosis of a work-related condition.
OWCP afforded appellant 30 days to submit the necessary evidence.

4

The Board notes that Part A, the first page of the Form CA-16, is not contained in the case record.

2

In response, appellant resubmitted the June 12, 2018 operative report and corresponding
hospital records in support of his claim.
By decision dated March 6, 2019, OWCP denied appellant’s claim finding that he had not
established that the employment incident occurred on June 10, 2018, as alleged. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.11 The employee has not met his or her burden of proof of establishing the occurrence of
an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

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).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143(1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989). Causal relationship is
a medical question that generally requires rationalized medical opinion evidence to resolve the issue. Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed
condition and the implicated employment factor(s) must be based on a complete factual and medical background.
Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of
a reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factor(s). Id.
11

Charles B. Ward, 38 ECAB 667, 67-71 (1987).

3

validity of the claim. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on June 10, 2018, as alleged.
Appellant has not established the factual component of his claim as he failed to explain
how his claimed injury occurred. In a development letter dated January 30, 2019, OWCP provided
a questionnaire for his completion and requested that he submit clarifying information describing
how his claimed injury occurred. Appellant, however, did not complete and return the attached
questionnaire and there is no statement in the record describing the specific alleged employmentrelated incident.13 As he did not respond to the request for factual information and did not provide
an explanatory statement, the record lacks sufficient factual evidence to establish specific details
of how the claimed injury occurred.
The Board notes that the only explanation pertaining to the alleged June 10, 2018 traumatic
incident was appellant’s generalized and vague statement on his Form CA-1 that he experienced
an “odd sensation,” pain, and loss of vision in his right eye while exercising on an elliptical
machine. While appellant sought treatment from Dr. London on June 11, 2018, he did not provide
a history of injury, nor did he provide an answer as to whether appellant’s condition was caused
or aggravated by an employment activity. By failing to respond to the questionnaire and describe
the specific employment incident and circumstances surrounding his alleged injury, and by failing
to provide a history of injury when seeking medical treatment, appellant has not established that
the traumatic injury occurred in the performance of duty, as alleged.14 Thus, the Board finds that
he has not met his burden of proof.15

12

M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

13

See M.F., Docket No. 18-1162 (issued April 9, 2019).

14

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
15

The Board notes that the case record contains an attending physician’s report (Part B of a Form CA-16), dated
June 19, 2018. A properly completed Form CA-16 form authorization may constitute a contract for payment of
medical expenses to a medical facility or physician, when properly executed. The form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737
(issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

4

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 his burden of proof to establish a traumatic
injury in the performance of duty on June 10, 2018, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the March 6, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 22, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
U.S. POSTAL SERVICE, CORONADO POST
OFFICE, Tucson, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1120
Issued: October 23, 2012

Case Submitted on the Record

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

JURISDICTION
On April 26, 2012 appellant filed a timely appeal from a November 18, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a traumatic injury
claim and a March 12, 2012 nonmerit decision denying reconsideration. 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.
ISSUES
The issues are: (1) whether appellant established that she sustained a right rotator cuff
injury in the performance of duty on September 21, 2011; and (2) whether OWCP properly
denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).
On appeal, appellant asserts that, while on restricted duty on September 21, 2001, a
supervisor insisted that she perform an absent colleague’s duties, resulting in the claimed rotator

1

5 U.S.C. § 8101 et seq.

cuff tear. She also contends that the claimed shoulder injury is causally related to a neck injury
accepted under a separate claim.
FACTUAL HISTORY
On September 27, 2011 appellant, then a 50-year-old distribution clerk, filed a traumatic
injury (Form CA-1) claiming that on September 21, 2011 while on light duty due to accepted
neck and shoulder conditions,2 she sustained a right rotator cuff tear while casing flats of mail.
She stopped work on the date of injury and did not return. A coworker submitted a November 7,
2011 statement asserting that, on an unspecified date, appellant “was told to case flats, which
required her to reach above her head and she ended up being in immense pain in her shoulder.”
A September 22, 2011 magnetic resonance imaging (MRI) scan of the right shoulder
showed a full thickness tear of the supraspinatus tendon.
Dr. Dara Chafik, an attending Board-certified orthopedic surgeon, held appellant off
work as of September 27, 2011 due to a tear of the right supraspinatus tendon. In a
September 27, 2011 report, she noted a 2009 occupational neck injury due to lifting multiple
heavy parcels and an October 2010 shoulder injury while pushing a mail cart. On examination,
Dr. Chafik limited right shoulder motion and obtained x-rays showing acromioclavicular
osteoarthritis. She diagnosed right symptomatic acromioclavicular osteoarthritis and a
symptomatic full thickness tear of the supraspinatus tendon. Dr. Chafik prescribed physical
therapy in which appellant participated through November 2011.
In an October 19, 2011 letter, OWCP advised appellant of the evidence needed to
establish her claim. It requested a detailed factual statement describing the September 21, 2011
incident and a narrative report from an attending physician explaining how the incident caused
the claimed rotator cuff tear.
Appellant submitted additional reports from Dr. Chafik. On October 7, 2011 Dr. Chafik
noted first examining appellant on September 27, 2011 for a right rotator cuff tear. In an
October 14, 2011 report, she noted that appellant also had cervical spine problems. On
November 4, 2011 Dr. Chafik diagnosed right frozen shoulder in addition to the right
supraspinatus tendon tear, attributable to “overhead motion and pushing” at work. She
administered a subacromial injection.
In a February 9, 2011 report, Dr. Scott Goorman, an attending Board-certified physiatrist,
diagnosed neck pain due to degenerative disc disease and myofascial causes.
By decision dated November 18, 2011, OWCP denied appellant’s claim on the grounds
that causal relationship was not established. It accepted that the September 21, 2011 work
incident occurred as alleged; but the medical evidence was insufficient to establish a causal
relationship between casing flats on September 21, 2011 and the claimed right rotator cuff tear.

2

OWCP accepted cervical spine and shoulder conditions under File No. xxxxxx860.

2

In a December 10, 2011 letter, appellant requested reconsideration. She asserted that
Dr. Chafik’s reports were sufficient to establish causal relationship. Appellant submitted
duplicate copies of Dr. Chafik’s reports, Dr. Goorman’s February 9, 2011 report, the
September 22, 2011 MRI scan report, physical therapy notes and the November 7, 2011 witness
statement. She also submitted new physical therapy notes dated from November 23 to
December 13, 2011.
Appellant also submitted two new statements. In an October 25, 2011 letter, an
employing establishment supervisor confirmed that, on September 20, 2011, he directed
appellant to move to another work area to case flats due to a clerk’s absence. Appellant
reminded him that “throwing the letters and flats aggravate[d] her shoulder. I told her that I
understood and to move over anyway” as he was unaware of any restrictions preventing her from
casing flats. In a November 5, 2011 statement, appellant asserted that, on September 20, 2011, a
supervisor assigned her to case flats, in violation of her restrictions.
By decision dated March 12, 2012, OWCP denied reconsideration on the grounds that the
evidence submitted in support thereof was either cumulative in nature or irrelevant to the medical
issue of causal relationship in the case.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic 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 that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.6
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

3

medical background of the claimant, must be one of reasonable medial 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.7
ANALYSIS -- ISSUE 1
Appellant claimed that she sustained a right rotator cuff tear on September 21, 2011 due
to overhead reaching while casing flats at work. OWCP accepted that the September 21, 2011
incident occurred as alleged, but denied the claim as the medical evidence failed to establish a
causal relationship between that incident and the claimed rotator cuff tear.
In support of her claim, appellant submitted reports from Dr. Chafik, an attending Boardcertified orthopedic surgeon. In reports from September 27 to October 14, 2011, Dr. Chafik
diagnosed a right supraspinatus tendon tear and acromioclavicular arthritis, noted a history of a
2009 occupational neck injury and an October 2010 occupational shoulder injury. On
November 4, 2011 she attributed a frozen right shoulder to “overhead motion and pushing” at
work. However, Dr. Chafik did not mention the accepted September 20, 2011 incident or
explain why overhead reaching while casing flats would cause the claimed supraspinatus tendon
tear. Therefore, her opinion is insufficient to establish causal relationship in this case.8 As the
February 9, 2011 report from Dr. Goorman, an attending Board-certified physiatrist, did not
address a right shoulder condition and is dated significantly prior to the accepted September 20,
2011 incident, his report is also insufficient to establish causal relationship.
On appeal, appellant asserts that, while on restricted duty on September 21, 2001, a
supervisor insisted that she perform an absent colleague’s duties, resulting in the claimed rotator
cuff tear. She also contends that the claimed shoulder injury is causally related to a neck injury
accepted under a separate claim. Appellant notes that her job duties are physically arduous. As
set forth above, OWCP accepted the September 21, 2011 work incident as factual. However,
appellant presented insufficient medical evidence explaining how and why casing flats at work
on September 21, 2011 would cause the claimed right supraspinatus tear. Therefore, OWCP
properly denied her claim for traumatic injury.
Appellant may submit new evidence or argument with a valid written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
7

Solomon Polen, 51 ECAB 341 (2000).

8

Deborah L. Beatty, supra note 6.

9

5 U.S.C. § 8128(a).

4

relevant legal argument not previously considered by OWCP; or (3) submit relevant and
pertinent new evidence not previously considered by OWCP.10 Section 10.608(b) provides that,
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.11
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.12 The claimant need
only submit relevant, pertinent evidence not previously considered by OWCP.13 When
reviewing an OWCP decision denying a merit review, the function of the Board is to determine
whether OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.14
ANALYSIS -- ISSUE 2
Following OWCP’s November 18, 2011 decision denying her claim, appellant requested
reconsideration. She submitted duplicate copies of Dr. Chafik’s reports, Dr. Goorman’s report,
physical therapy notes, an MRI scan report and a witness statement. However, the Board has
held the evidence which is cumulative or duplicative of material already in the record is
insufficient to warrant reopening a claim for merit review.15
Appellant also submitted her supervisor’s October 23, 2011 statement and her
November 5, 2011 statement corroborating the accepted September 21, 2011 incident, as well as
new physical therapy notes. The critical issue at the time OWCP denied the claim was the
medical question of whether casing flats on September 21, 2011 caused the claimed right
supraspinatus tendon tear. The factual statements and physical therapy notes do not address that
issue. Therefore, they are irrelevant to the claim.16 The Board has held that the submission of
evidence which does not address the particular issue involved does not comprise a basis for
reopening a case.17

10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

12

Helen E. Tschantz, 39 ECAB 1382 (1988).

13

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

14

Annette Louise, 54 ECAB 783 (2003).

15

A.F., Docket No. 11-1297 (issued December 20, 2011).

16

Where the underlying issue is medical in nature, reports from a physical therapist are not relevant because a
physical therapist is not a physician under FECA. See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued
November 18, 2008) (records from a physical therapist do not constitute competent medical opinion in support of
causal relation; a physical therapist is not a physician as defined under the FECA).
17

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

5

Accordingly, the Board finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly issued its March 18, 2012 decision denying merit review.
CONCLUSION
The Board finds that appellant has not established that she sustained a right rotator cuff
tear on September 21, 2011. The Board further finds that OWCP properly denied her request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 12, 2012 and November 18, 2011 are affirmed.
Issued: October 23, 2012
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, RANSON POST
OFFICE, Ranson, WV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1155
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 21, 2021 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 her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 8, 2018 appellant then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 30, 2018 she sustained a strained left hip/buttock when she
was startled by a snake and fell backwards when delivering mail while in the performance of duty.
She stopped work on the filing date of her claim. On June 8, 2018 OWCP initially accepted the
claim for strain of the muscle, fascia, and tendon of the left hip, and unspecified strain of the left
hip. It later expanded acceptance of the claim to include trochanteric tendinitis/bursitis of the left
hip and strain of the gluteus medius. OWCP paid appellant wage-loss compensation on the
supplemental rolls as of June 23, 2018 and on the periodic rolls commencing January 6, 2019. It
again paid her intermittent wage-loss compensation on the supplemental rolls as of September 15,
2019, following her return to part-time limited-duty work on September 23, 2019.
Appellant filed several claims for compensation (Form CA-7) for disability from work for
the period February 27 through April 9, 2021. On March 29, and April 2 and 13, 2021 she filed
an accompanying time analysis form (Form CA-7a) wherein she claimed that she used leave
without pay (LWOP) as follows: eight hours each on February 27, March 13, 16, 20, 23, and 30,
and April 2, and 3, 2021 due to her days off work; two hours on March 1, 2021; 1.34 hours on
March 3, 2021; 4.20 hours on March 4, 2021; eight hours each on March 5 and 6, 2021 to receive
an injection in her physician’s office; 3.48 hours on March 8, 2021; 2.35 hours on March 9, 2021;
eight hours on March 11, 2021 due to being placed off work by her physician; eight hours each on
March 12, 15, 19, 22, 29 and April 8 and 9, 2021 due to hip pain; 1.46 hours on March 24, 2021;
3.08 hours on March 25, 2021; 2.02 hours on March 31, 2021; 2.85 hours on April, 1, 2021; 2.59
hours on April 6, 2021; and 4.45 hours on April 7, 2021.
In support of her claim, appellant submitted medical reports dated March 4 and 24, 2021
from Juris Eyler, a physician assistant. Mr. Eyler diagnosed pain, unilateral primary osteoarthritis,
other articular cartilage disorders of the left hip; sacroiliitis, not elsewhere classified; difﬁculty in
walking, not elsewhere classiﬁed, and trochanteric bursitis of the left hip. He advised that appellant
could continue to perform sedentary work with restrictions and indicated that her absences from
work for a partial day on March 4, 2021 and a full day on March 5, 2021 should be excused due
to a hip injection she received on March 4, 2021. On March 24, 2021 Mr. Eyler restricted her to
work four-to-six hours per day, three- to four-hour days per week, due to flare-ups of pain and
other symptoms effective March 3, 2021.
OWCP, in a development letter dated March 29, 2021, informed appellant that the evidence
submitted was insufficient to establish her claim for wage-loss compensation. It advised her of
the type of medical evidence necessary to establish her disability claim and afforded her 30 days
to submit the requested evidence.

2

In a separate letter dated March 29, 2021, OWCP requested that the employing
establishment indicate whether work was available for appellant on February 27 and March 5, 6,
11, and 12, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the period February 13 through 26 and March 8 and 9, 2021.
OWCP received an April 3, 2020 left hip arthrogram report by Dr. Taik-Kun Kim, a Boardcertified diagnostic radiologist. Dr. Kim noted that the arthrogram was performed prior to a
magnetic resonance imaging (MRI) scan. He provided an impression that the arthrogram was
successful and uncomplicated.
On April 6, 2021 the employing establishment responded to OWCP’s March 29, 2021
letter, noting that no work was available on February 27, 2021 and eight hours of work was
available on March 5, 6, 11, and 12, 2021.
In an April 16, 2021 letter, OWCP requested that the employing establishment provide
whether limited-duty work was available for appellant on intermittent dates during the period
March 13 through April 9, 2021.
In an initial response dated April 22, 2021, the employing establishment indicated that up
to six hours of limited-duty work per day was available on March 13, 15, 16, 19, 20, 22, 23, 29,
30, 31 and April 2, 3, 8, and 9, 2021. It indicated that medical evidence dated March 24, 2020
provided that appellant could work four-to-six hours per day, three-to-four days per week as
tolerated.
On April 28, 2021 the employing establishment further responded that appellant had days
off from work and was off work based on her physician’s order during the period March 13 through
April 9, 2021. It noted that her days off from work were March 13, 16, 20, 23, and 30 and
April 2, 2021. The employing establishment also noted that appellant was off from work on
March 15, 19, 22, and 29 and April 6 and 9, 2021 based on her physician’s order. Appellant
worked 5.98 hours on March 31, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the periods March 13 through 26, 2021 and March 31 through
April 7, 2021.
OWCP continued to receive medical evidence. In an April 3, 2021 left hip MRI arthrogram
report, Dr. John M. Filigenzi, a Board-certified diagnostic radiologist, provided an impression of
mild left hip chondromalacia. Dr. Filigenzi related that appellant had a complex tear of the
acetabular labrum extending from the anterior-superior labrum through the posterior-superior
labrum, more severe anteriorly as detailed in his report. He also provided impressions of mild
degenerative changes of the sacroiliac joints and pubic symphysis, based on review of an April 1,
2020 pelvis MRI scan.
Dr. S. Shar Hashemi, a Board-certified surgeon, noted in reports dated May 10 and 14,
2021 that appellant’s history of a 2018 employment-related left hip injury. He discussed:
examination findings and diagnosed injury of cutaneous sensory nerve at hip and thigh level, left
3

leg, initial encounter; injury of other nerves at hip and thigh level, left leg, initial encounter; and
causalgia of the left lower limb. Dr. Hashemi placed appellant off work for one month
commencing April 29 and May 14, 2021, respectively.
A May 6, 2021 report by Dr. Raj Parekh, an anesthesiologist, noted appellant’s history of
injury, discussed examination findings, and provided impressions of high risk medication
monitoring narcotics, left hip chronic pain syndrome, unspecified and uncomplicated opioid use,
generalized anxiety disorder, and left hip labral tear. Dr. Parekh related that there was no doubt
that appellant’s left hip pain was causing significant disability and pain. He noted that she reported
that prior to her accepted employment injury, she was quite active, but now she was limited by her
pain and could not adequately perform her work duties.
In a May 21, 2021 decision, OWCP authorized payment of wage-loss compensation for
eight hours on February 27, 2021 and two hours each on March 13, 15, 16, 19, 20, 22, 23, 29, 30,
and 31 and April 2, 3, 8, and 9, 2021. It also noted that appellant had previously received
intermittent wage-loss compensation for March 1, 3, 4, 8, 9, 17, 24, 25, 31, and April 1, 6, and
9, 2021. The claim remained denied, however, as appellant had not provided medical evidence
establishing that she was disabled from work as a result of her accepted work -related medical
conditions for the remainder of the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 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 employee.11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury. Appellant filed a series of CA-7 forms
for intermittent disability from work commencing February 27, 2021. The record reflects that
OWCP has paid intermittent wage-loss compensation commencing February 27, 2021 for the dates
on which eight hours of work was not made available by the employing establishment and for the
dates on which appellant received authorized medical treatment.
OWCP received reports from medical providers regarding appellant’s disability status
during the relevant period. Several reports were submitted by Mr. Eyler, a physician assistant. In
a report dated March 4, 2021, Mr. Eyler advised that appellant’s absences from work for a partial
day on March 4, 2021 and a full day on March 5, 2021 should be excused due to a hip injection
she received on March 4, 2021. OWCP paid appellant wage-loss compensation for the time she
lost from work to receive the hip injection on March 4, 2021; however, it denied her claim for
wage-loss compensation commencing March 5, 2021 as Mr. Eyler’s opinion regarding appellant’s
disability status was of no probative value. 13 On March 24, 2021 Mr. Eyler restricted her to work
four to six hours per day, three to four hour days per week, due to flare -ups of pain and other
symptoms effective March 3, 2021. The Board has held that the reports of a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and, therefore, is not competent to provide a medical opinion. The reports from Mr. Eyler

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020).
13

D.B., Docket No. 20-0192 (issued November 2, 2020); S.K., Docket No. 19-0272 (issued July 21, 2020).

5

are, therefore, insufficient to establish appellant’s claim, except to establish that appellant received
treatment on the dates he provided authorized medical treatment.14
OWCP also received reports from Dr. Hashemi. In a report dated May 10, 2021,
Dr. Hashemi placed appellant off work for one month commencing April 29, 2021. He noted her
history of injury and diagnosed injury of cutaneous sensory nerve at the hip and thigh level of left
leg and causalgia of the left lower limb. However, Dr. Hashemi did not explain, with rationale,
how or why appellant was unable to perform her regular work on the claimed dates of disability
due to the effects of her accepted conditions. His other May 14, 2021 report also did not address
the relevant period of claimed disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/period of disability has an employment-related cause.15 For these reasons, the
Board finds that Dr. Hashemi’s reports are insufficient to establish appellant’s disability claim.
Appellant also submitted a May 6, 2021 report from Dr. Parekh. Dr. Parekh noted a history
of the April 30, 2018 employment injury. He diagnosed, inter alia, left hip chronic pain syndrome
and left hip labral tear. Dr. Parekh opined that appellant’s hip pain caused her disability from
work. However, he did not offer an opinion as to whether her disability on the claimed dates were
causally related to the accepted condition. 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 on the issue of causal relationship. 16 Therefore, this evidence is insufficient to establish
appellant’s disability claim.
Likewise, Dr. Kim’s April 3, 2020 procedure note is insufficient to establish appellant’s
disability claim. In his April 3, 2020 note, he advised that a left hip arthrogram was successful
and uncomplicated. However, Dr. Kim did not provide an opinion addressing whether appellant
had disability on the claimed dates causally related to an accepted condition and, as such, his note
is of no probative value.17
Appellant submitted left hip MRI arthrogram reports from Dr. Kim and Dr. Filigenzi. The
Board has held, however, that diagnostic studies, standing alone, lack probative value on the issue

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as 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 Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
15

See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);
T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
16

See T.S., id.; J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Id.

6

of causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates. 18
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 19 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the claimed period due to her accepted
conditions, the Board finds that she has not met her burden of proof to establish h er 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 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 her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See T.S., id.; D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued
October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020).
19

Supra note 6.

7


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

)
)
)
)
)
)
)
)

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

Docket No. 20-0570
Issued: December 15, 2020

Case Submitted on the Record

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

JURISDICTION
On January 16, 2020 appellant, through counsel, filed a timely appeal from December 13
and 20, 2019 merit decisions 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

The Board notes that, following the December 20, 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.

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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish continuing
disability or residuals on or after August 14, 2018 due to her accepted employment-related
conditions of thoracic, lumbar, and cervical sprains/strains; thoracic, lumbar, and cervical
contusions; and left shoulder contusion; and (2) whether appellant has met her burden of proof to
establish that OWCP should expand acceptance of her claim to include additional conditions
causally related to her December 18, 2017 accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 18, 2017 appellant, then a 48-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that date she injured her left buttock and left shoulder
when she fell down stairs while in the performance of duty. She stopped work on
December 18, 2017. OWCP accepted the claim for thoracic sprain/strain, lumbar sprain, cervical
sprain, cervical, thoracic, and lumbar contusions, and a left shoulder contusion. It paid appellant
wage-loss compensation for total disability on the supplemental rolls from February 2 through
May 26, 2018 and on the periodic rolls from May 27 until June 23, 2018, when she returned to
full-time modified employment.
On January 11, 2018 Dr. Philip Baldeo, who specializes in family medicine, discussed
appellant’s history of an employment injury on December 18, 2017 and her continued complaints
of pain in her neck, left shoulder, and lower back and weakness and numbness of the upper and
lower extremities bilaterally. He diagnosed persisting cervical myofasciitis, traumatic cervical
pain syndrome, thoracic and lumbosacral sprain/strain, traumatic lumbar radiculitis/radiculopathy,
and disc herniations, contusions, and internal derangement of the cervical, thoracic, and lumbar
spine. Dr. Baldeo attributed the diagnosed conditions to appellant’s employment injury as long as
he had an accurate history of injury. He found that she was totally disabled.5
A magnetic resonance imaging (MRI) scan of the cervical spine dated January 29, 2018
showed minimal C5-6 disc bulging. A January 31, 2018 MRI scan of the left shoulder revealed
mild subacromial subdeltoid bursitis and small-to-moderate glenohumeral joint effusion.
Electrodiagnostic studies obtained January 26, 2018 revealed right carpal tunnel syndrome.

3

5 U.S.C. § 8101 et seq.

4

Docket No. 19-0959 (issued September 24, 2019).

5
Dr. Baldeo provided similar reports on February 15 and April 10, 2018. He further provided periodic nerve blocks
throughout 2018 and 2019.

2

On April 2, 2018 OWCP referred appellant to Dr. Leon Sultan, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated April 23, 2018, Dr. Sultan discussed appellant’s history of a December 18,
2017 employment injury and reviewed the January 31, 2018 MRI scans of the cervical spine and
left shoulder. On examination he found intact sensation of the upper extremities with good grip
strength. Dr. Sultan measured good range of motion of the cervical and thoracolumbar spine and
the left shoulder. He further found negative straight leg raise bilaterally and intact sensation of the
lower extremities. Dr. Sultan opined that the findings on physical examination of appellant’s
cervical and thoracolumbar spine and left shoulder were unremarkable. He attributed the
subacromial/subdeltoid bursitis demonstrated on MRI scan to the accepted employment injury, but
opined that the minimal disc bulging at C5-6 was unrelated to her employment. Dr. Sultan
concluded that appellant had no further objective findings or residuals of her cervical spine,
thoracolumbar spine, or left shoulder conditions and that she could resume her usual employment.
In an accompanying work capacity evaluation (Form OWCP-5c), he indicated that she could work
full time without limitations.
An April 23, 2018 MRI scan of appellant’s lumbar spine revealed a disc herniation at L3-4,
a disc bulge at L4-5 with an annular tear on the left, and mild-to-moderate central canal stenosis
and foraminal narrowing from L3 to L5.
In an addendum report dated June 18, 2018, Dr. Sultan opined that appellant had sustained
only a soft trauma injury to her cervical and thoracolumbar spine and left shoulder due to the
December 18, 2017 employment injury.6 In response to the question of whether appellant had
sustained lumbar disc displacement, lumbar disc herniation, lumbar radiculopathy, and cervical,
thoracic, and lumbar internal derangement due to the accepted employment injury, he advised that
his examination had not revealed any evidence of lumbar disc displacement with a lumbar disc
herniation and radiculopathy. Dr. Sultan further advised that the mild disc bulging at C5-6 was
unrelated to the December 18, 2017 employment injury. He found no functional impairment of
the left shoulder, or cervical, thoracic, and lumbar spine and opined that appellant could resume
her usual employment.
By decision dated June 17, 2018, OWCP denied appellant’s request to expand the
acceptance of her claim to include lumbar disc displacement, lumbar radiculitis/radiculopathy,
cervical disc herniation, and cervical, thoracic, and lumbar internal derangement. It found that she
had not submitted reasoned medical evidence explaining how the diagnosed conditions were
caused or aggravated by her December 18, 2017 employment injury.7
On July 2, 2018 OWCP advised appellant of its proposed termination of her wage-loss
compensation and medical benefits as the evidence established that she no longer had any
6
In duty status reports (Form CA-17) dated April 13 through June 15, 2018, Dr. Baldeo diagnosed bursitis of the
left shoulder and a cervical and lumbar spine condition. He provided restrictions and indicated that he had not advised
appellant to resume work. In a June 15, 2018 return to work certificate, Dr. Baldeo advised that he was treating
appellant for an employment injury and that he was unsure when she could resume her usual activities.
7

Appellant on June 23, 2018 returned to limited-duty full-time employment with the employing establishment.

3

employment-related residuals or disability due to employment injury. It afforded her 30 days to
submit additional evidence or argument if she disagreed with the proposed termination.
Thereafter, appellant submitted a May 24, 2018 report from Dr. Baldeo. Dr. Baldeo
reviewed her history of falling while walking down concrete stairs and current complaints of pain
in her neck, left shoulder, back, and buttocks. He reviewed the diagnostic studies, noting that a
January 26, 2018 electromyogram (EMG) showed evidence of right carpal tunnel syndrome.
Dr. Baldeo provided findings on examination and diagnosed resolving cervical myofasciitis,
traumatic cervical spine syndrome, resolved thoracic sprain/strain, traumatic lumbosacral spine
sprain and disc displacement, traumatic lumbar radiculitis/radiculopathy, resolving traumatic disc
herniations of the cervical and lumbar spine, traumatic internal derangement of the lumbar spine,
and contusions of the cervical and lumbar spine and the left shoulder. He opined, “If the history
given by [appellant] is true, I conclude with a reasonable degree of medical certainty that the
accident on December 18, 2017 is a competent producing cause of [her] injuries and there is a
causal relationship between the accident and the injuries.” Dr. Baldeo provided a substantially
similar report on June 25, 2018.8
By decision dated August 13, 2018, OWCP terminated appellant’s wage-loss
compensation and entitlement to medical benefits effective August 14, 2018. It found that the
opinion of Dr. Sultan constituted the weight of the evidence and established that she had no further
residuals of her accepted employment injury.
On August 23, 2018 appellant, through counsel, requested a telephonic hearing regarding
the August 13, 2018 decision before a representative of OWCP’s Branch of Hearings and Review.
OWCP thereafter received a July 6, 2018 report from Dr. Baldeo. Dr. Baldeo reviewed
Dr. Sultan’s report and advised that he did not review all the MRI scans and electrodiagnostic test
results, noting that some test results were not available at the time of his report. He maintained
that his examination was brief and questioned his findings. Dr. Baldeo noted that Dr. Sultan’s
report was “being used to terminate [appellant’s] injury in a work[-]related trauma that I believe
is legitimate….”
On August 22, 2018 Dr. Baldeo indicated that appellant was currently working with left
shoulder, neck, and low back pain. He diagnosed persisting cervical myofasciitis and cervical pain
syndrome, resolved thoracic sprain/strain, persisting lumbosacral disc displacement and
radiculitis, cervical and lumbar disc herniations and internal derangement, and contusions of the
cervical and lumbar spine and left shoulder. Dr. Baldeo found that appellant was partially disabled
due to her employment injury.9

8

On July 24 and 25 and August 3, 2018 Dr. Baldeo provided a physical performance evaluation. On July 25, 2018
he described the range of motion and strength findings and recommended treatment. In a duty status report dated
July 26, 2018, Dr. Baldeo indicated that appellant was partially disabled from employment and provided work
restrictions.
9

Dr. Baldeo continued to treat appellant with nerve blocks. In duty status reports (Form CA-17) dated March 5
through May 6, 2019, he diagnosed bursitis of the left shoulder and a cervical and lumbar spine condition, and
provided work restrictions.

4

A telephonic hearing was held on January 3, 2019 on OWCP’s August 13, 2018
termination decision. Appellant described her difficulties performing activities because of her left
shoulder and back condition.
In a report dated January 30, 2019, Dr. Baldeo asserted that Dr. Sultan had inaccurately
represented appellant’s condition. He described her continued complaints and opined that she was
partially disabled due to her employment injury. Dr. Baldeo recommended electrodiagnostic
testing.
By decision dated March 7, 2019, OWCP’s hearing representative affirmed the August 13,
2018 termination decision. He found that the opinion of Dr. Sultan established that appellant had
no further disability or need for medical treatment due to her accepted conditions. The hearing
representative determined, however, that upon return of the case record OWCP should further
develop the issue of whether her claim should be expanded to include a lumbar or cervical
condition, carpal tunnel syndrome, or any other conditions due to her accepted employment injury,
noting that Dr. Sultan had not reviewed all of the diagnostic studies in reaching his opinion
regarding claim expansion. He instructed OWCP, on remand, to obtain an opinion from Dr. Sultan
regarding whether appellant had sustained additional conditions due to the accepted employment
injury and to discuss the finding from the lumbar MRI scan.
Thereafter, OWCP received a report dated March 6, 2019 from Dr. Baldeo, who discussed
appellant’s history of injury, provided examination findings, and reviewed the diagnostic studies.
Dr. Baldeo noted that she currently complained of pain in her neck, left shoulder, upper and lower
back, and buttocks, and numbness in the left upper extremity. He advised that Dr. Sultan had
inaccurately represented appellant’s clinical findings. On examination Dr. Baldeo found pain with
palpation at L3 to L5 with intact sensation and full motor strength. He diagnosed persistent
cervical and lumbar myofasciitis10 with radiculopathy, to rule out radiculopathy versus myopathy,
and to rule out internal derangement of the left shoulder, cervical, and lumbar spine. Dr. Baldeo
found that appellant was partially disabled from her employment injury.
On March 14, 2019 OWCP requested that Dr. Sultan review the April 23, 2018 MRI scan
of the lumbar spine and explain whether the findings were causally related to the December 18,
2017 employment injury. It further requested that he advise whether appellant sustained carpal
tunnel syndrome or a further injury to her lumbar or cervical discs as a result of the work injury.
On April 1, 2019 appellant appealed the March 7, 2019 termination decision to the Board.
On May 14, 2019 OWCP expanded acceptance of the claim to include subacromial/
subdeltoid bursitis of the left shoulder.
Dr. Baldeo provided progress reports on April 15 and June 6, 2019 with the same diagnoses
and causation finding as in his March 16, 2019 report. In a May 6, 2019 duty status report (Form
CA-17), he diagnosed cervical and lumbar myofasciitis and bursitis and listed work restrictions.

10

Dr. Baldeo provided the diagnoses as “cmf” and “lmf,” which appear to be cervical and lumbar myofasciitis.

5

In an addendum report dated June 6, 2019, Dr. Sultan advised that his April 23, 2018
examination had revealed no abnormal findings for the cervical spine, thoracolumbar spine, or left
shoulder. He noted, “From an orthopedic point of view, there was no correlation between this
claimant’s lumbar spine examination and the lumbar spine MRI [scan] reading of April 23, 2018.”
Dr. Sultan indicated that he had reviewed the MRI scans and his findings regarding appellant’s
condition was unchanged as his examination findings had demonstrated no residual post-traumatic
impairment. He found that she had not sustained carpal tunnel syndrome or a cervical or
thoracolumbar spine condition due to her fall on December 18, 2017 noting that his examination
failed to “confirm any positive examination findings consistent with carpal tunnel syndrome nor
were there any positive examination findings consistent with traumatic injury to the cervical spine
or thoracolumbar spine.” Dr. Sultan determined that appellant could perform her regular
employment duties.
By decision dated June 17, 2019, OWCP denied appellant’s request to expand her claim to
include lumbar disc displacement, lumbar radiculitis/radiculopathy, cervical disc herniation, and
cervical, lumbar, and thoracic internal derangement.
Thereafter, OWCP received Form CA-17 duty status reports dated June through
September 2019 from Dr. Baldeo.
On June 25, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the June 17, 2019 decision
denying her request for claim expansion.
By decision dated September 24, 2019, the Board affirmed the March 7, 2019 decision.11
Thereafter, OWCP received progress reports dated July through October 2019 from
Dr. Baldeo. Dr. Baldeo discussed the history of the December 18, 2017 employment injury and
again asserted that Dr. Sultan had inaccurately represented appellant’s condition. He provided
examination findings and opined that her condition was causally related to the accepted
employment injury. Dr. Baldeo diagnosed persistent cervical and lumbar myofasciitis with
radiculopathy and to rule out internal derangement of the left shoulder, and cervical and lumbar
areas of the spine.
A telephonic hearing was held on October 16, 2019 regarding the issue of claim expansion.
Appellant advised that she was currently working limited duty. Counsel argued that a conflict
existed between Dr. Sultan and Dr. Baldeo.
On October 17, 2019 appellant, through counsel, requested reconsideration of the
termination of her compensation. In support of her request, she submitted an April 5, 2019 letter
of medical necessity from Dr. Baldeo requesting authorization for diagnostic testing. Dr. Baldeo
advised that electrodiagnostic testing could evaluate appellant’s symptoms and differentiate
between possible conditions.

11

Supra note 4.

6

In a Form CA-17 report dated October 23, 2019, Dr. Baldeo diagnosed cervical and lumbar
myofasciitis and provided work restrictions. In a medical information and restriction assessment
form from the employing establishment, he listed work restrictions.
By decision dated December 13, 2019, OWCP denied modification of its March 7, 2019
decision.12 It found that appellant had not established continuing disability or the need for medical
treatment due to her accepted employment injury.
By decision dated December 20, 2019, OWCP’s hearing representative affirmed the
June 17, 2019 decision denying appellant’s request for expansion. He found that she had not
established that her claim should be expanded to include lumbar radiculitis/radiculopathy, a
cervical disc herniation, or cervical, lumbar, and thoracic internal derangement.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury.13 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and
the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish continuing
disability or residuals after August 14, 2018 due to her accepted employment-related conditions of
thoracic, lumbar, and cervical sprains/strains; thoracic, lumbar, and cervical contusions; and left
shoulder contusion.
Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s March 7, 2019 decision because the Board previously
considered that evidence in its September 24, 2019 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.15
Following OWCP’s March 7, 2019 decision, appellant submitted progress reports dated
March 6 through October 2019 from Dr. Baldeo. In these reports, Dr. Baldeo discussed her history
of a December 18, 2017 employment injury and advised that Dr. Sultan had inaccurately
represented her clinical condition. He diagnosed persistent cervical and lumbar myofascitis with
radiculopathy, to rule out radiculopathy versus myopathy, and to rule out internal derangement of
12
OWCP indicated that it was denying modification of the prior Board decision. However, decisions of the Board
become final after 30 days and are not subject to further review. 20 C.F.R. § 501.6(d). The proper subject of
modification was OWCP’s March 7, 2019 termination decision.
13

See S.M., Docket No .18-0673 (issued January 25, 2019); L.C., Docket No. 18-1759 (issued June 26, 2019).

14

Id.

15

L.K., Docket No. 19-0313 (issued January 15, 2020); A.L., Docket No. 19-0285 (issued September 24, 2019).

7

the left shoulder, cervical, and lumbar spine. Dr. Baldeo found that appellant was partially
disabled from her employment injury. The issue, however, is whether the accepted conditions of
cervical, thoracic, and lumbar sprains and contusions, and left shoulder contusion caused
continuing disability on or after August 14, 2018. Dr. Baldeo failed to offer adequate medical
rationale explaining how the accepted conditions resulted in continued disability after the
termination on or after August 14, 2018. Medical reports without adequate rationale are of
diminished probative value and insufficient to meet appellant’s burden of proof.16 Additionally,
the Board previously addressed Dr. Baldeo’s finding that Dr. Sultan had inaccurately represented
her condition and found that it was insufficient to support continuing residuals or disability.
Appellant further submitted Form CA-17 reports dated June through October 2019 from
Dr. Baldeo. The report, however, is merely a form report and does not contain an opinion on
whether the accepted employment injury caused disability from employment; consequently, it is
of no probative value on the issue of causal relationship.17 Appellant therefore has not met her
burden of proof to establish continuing disability or residuals after August 14, 2018 causally
related to the accepted employment injury.18
LEGAL PRECEDENT -- ISSUE 2
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.19
Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.20 The opinion of the physician must be based on a complete factual and medical
background, 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 accepted
employment injury.21
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand acceptance of her claim to include additional conditions causally related to her
accepted December 18, 2017 employment injury.
OWCP requested clarification from Dr. Sultan regarding whether appellant’s claim should
be expanded to include additional employment-related conditions. In a report dated June 6, 2019,
16

E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

17

L.S., Docket No. 19-0959 (issued September 24, 2019).

18

See H.Y., Docket No. 18-1673 (issued May 20, 2019).

19

K.T., Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

20

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

21

Id.

8

Dr. Sultan opined that his examination had demonstrated no abnormalities of the cervical spine,
thoracolumbar spine, or left shoulder. He advised that the findings on lumbar MRI scan did not
correlate to any findings on examination. Dr. Sultan found that appellant had not sustained carpal
tunnel syndrome, or a condition of the lumbar, thoracolumbar, or cervical spine due to her
December 18, 2017 employment injury based on the lack of findings supporting a traumatic injury
on examination. The Board finds that the opinion of Dr. Sultan, who relied upon an accurate
history of injury and provided rationale for his findings, represents the weight of the evidence and
establishes that she has not met her burden of proof to establish that her claim should be expanded
to include additional employment-related conditions.
Appellant submitted progress reports from Dr. Baldeo that both predated the Board’s prior
decision and those dated March through September 2019 which address the issue of claim
expansion. In these reports Dr. Baldeo reviewed her history of injury and provided findings on
examination. He diagnosed persistent cervical and lumbar myofascitis with radiculopathy, to rule
out radiculopathy versus myopathy, and to rule out internal derangement of the left shoulder,
cervical, and lumbar spine and found that appellant was partially disabled from her employment
injury. Dr. Baldeo failed, however, to provide any rationale explaining how the additional
diagnosed conditions were causally related to the accepted employment injury.22 A medical
opinion not fortified by medical rationale is of diminished probative value.23 Dr. Baldeo’s reports
are insufficient to overcome the weight accorded to Dr. Sultan or create a conflict in the medical
opinion evidence and therefore are insufficient to meet appellant’s burden of proof.
Appellant further submitted Form CA-17 reports, but as these form reports fail to address
the cause of the conditions diagnosed, they are of no probative value on the issue of causal
relationship.24
On appeal counsel contends that OWCP failed to apply the appropriate causation standard
or give sufficient deference to appellant’s attending physician. As discussed, appellant failed to
provide sufficient reasoned medical evidence supporting either continued disability or residuals of
her accepted employment injury or that her claim should be expanded to include additional
conditions, and thus failed to meet 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 continuing
disability or the need for further medical treatment after August 14, 2018 causally related to her
accepted December 18, 2017 employment injury. The Board further finds that she had not met
22

See A.T., Docket No. 20-0334 (issued October 8, 2020).

23

Id.; T.W., Docket No. 18-1573 (issued July 19, 2019).

24

See L.S., supra note 17.

9

her burden of proof to establish that OWCP should expand acceptance of her claim to include
additional conditions causally related to her December 18, 2017 accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 20 and 13, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 15, 2020
Washington, DC

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

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

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

10