United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________

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

Docket No. 15-30
Issued: February 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 7, 2014 appellant filed a timely appeal from a June 12, 2014 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 a left knee injury in the performance of
duty on October 21, 2011.
FACTUAL HISTORY
On October 24, 2011 appellant, then a 34-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 21, 2011 she sustained a left knee injury. She

1

5 U.S.C. § 8101 et seq.

stated that, while in the performance of duty, she stepped on a crack in the sidewalk and twisted
her left knee.2
In a Form CA-16 (authorization for examination and/or treatment) dated October 21,
2011, the employing establishment authorized medical treatment at Ocala Regional Medical
Center. An “emergency physician record” dated October 21, 2011 noted a prior history of a torn
meniscus. The physician provided a history that appellant had twisted her left knee and
diagnosed knee sprain/strain.3 A discharge summary of the same date from Dr. Steven Gelovich,
a Board-certified in family medicine, indicated that appellant should work sedentary duty.
Appellant underwent left knee surgery on November 8, 2011. Dr. Derek Farr, an
attending osteopath, described the surgery as left knee arthroscopy with partial medial
meniscectomy and chondroplasty two compartments. The record contains another emergency
physician record dated November 13, 2011 indicating appellant reported postoperative knee
pain. According to OWCP, appellant had a prior claim for a left knee injury on September 5,
2010 while breaking up an inmate altercation, and a November 30, 2010 prior claim accepted for
left knee sprain and lateral/medial meniscus tear.
By decision dated October 2, 2013, OWCP denied the claim for compensation. It found
appellant had not submitted sufficient factual or medical evidence to establish the claim.
Appellant requested a review of the written record by letter postmarked
November 5, 2013. By decision dated November 29, 2013, OWCP denied the request on the
grounds that it was untimely filed.
On December 23, 2013 appellant requested reconsideration of her claim.4 She stated that
she had reinjured her knee on October 21, 2011 and sought medical treatment. Appellant stated
that she had told Dr. Farr of her injury but he noted she was having surgery in two weeks and he
would continue to treat her under the old claim. She stated that she thought all of her left knee
treatment would be taken care of and now she did not understand why she was “facing a claim
from workers’ compensation” for medical costs. By report dated November 17, 2011, Dr. Farr
provided results on examination. He diagnosed left knee meniscus tear and chondromalacia
patella.
By decision dated June 12, 2014, OWCP reviewed the case on its merits. It denied the
claim on the grounds that the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”5 The
2

These claims are not administratively linked to the current claim.

3

The signature on the form report is illegible.

4

Appellant also requested a review by the Board. In an order dated April 14, 2014, the Board dismissed the
appeal, noting that she had requested the appeal be withdrawn. Docket No. 14-462 (issued April1 14, 2014).
5

5 U.S.C. § 8102(a).

2

phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of
employment.”6 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.7 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. The second component is whether the employment incident
caused a personal injury and, generally, this can be established only by medical evidence.8
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
In the present case, appellant filed a claim for a left knee injury on October 21, 2011
when she stepped on a crack in the sidewalk and twisted her knee. Although the current case file
has not been administratively linked with any other case file, the record indicated that she had a
prior claim accepted for a left knee lateral/medial meniscus tear. Appellant underwent a partial
left knee meniscectomy surgery on November 8, 2011.
The record indicates that appellant was treated on October 21, 2011. Dr. Gelovich
provided a discharge summary, and there is a physician’s emergency room report as well. As
noted above, to establish a left knee sprain/strain or other diagnosed condition as causally related
to the October 21, 2011 incident, appellant must submit rationalized medical opinion evidence.
In this case the medical evidence is not sufficient to meet her burden of proof. The hospital
reports dated October 21, 2011 do not provide a clear history of the employment incident.
Moreover, there is no opinion relating a diagnosed condition to the employment incident. The
additional medical evidence of record, including reports from Dr. Farr, does not discuss the
issue. The Board finds that appellant did not meet her burden of proof in this case.
On appeal appellant states that she felt her left knee injury had been covered and now
there were unpaid medical bills. The Board does not have jurisdiction with respect to any prior
left knee claims. The Board notes that the employing establishment issued a Form CA-16 on
October 21, 2011. Where an employing establishment properly executes a Form CA-16 which
authorizes medical treatment as a result of an employee’s claim for an employment-related
6

Valerie C. Boward, 50 ECAB 126 (1998).

7

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

8

See John J. Carlone, 41 ECAB 354, 357 (1989).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3

injury, the Form CA-16 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.10 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.11 In this case, OWCP made no
findings with respect to the October 21, 2011 Form CA-16. On return of the case record, it
should properly address the issue.12
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty on
October 21, 2011. On return of the case record, OWCP should consider the Form CA-16 issued
in this case.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2014 is affirmed.
Issued: February 20, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10

Tracey P. Spillane, 54 ECAB 608 (2003).

11

See 20 C.F.R. § 10.300(c).

12

See S.L., Docket No. 14-1591 (issued December 24, 2014).

4


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

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

Docket No. 11-472
Issued: September 30, 2011

Case Submitted on the Record

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

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from the June 15, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim and the September 21, 2010 nonmerit decision denying his request for merit review.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 sustained a right shoulder injury while in the
performance of duty on April 28, 2010; and (2) whether the refusal of OWCP to reopen
appellant’s case for further merit review pursuant to 5 U.S.C. § 8128(a) constituted an abuse of
discretion.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 3, 2010 appellant, a 41-year-old postal inspector, filed a traumatic injury claim
alleging that he sustained a right shoulder injury on May 28, 2010 while lifting weights during a
work-related physical fitness regime.2 A May 3, 2010 duty status report, signed by
Dr. Timothy S. Ackerman, a Board-certified osteopath, specializing in orthopedic surgery,
indicated that appellant was injured while lifting weights on the date in question during a
physical fitness program.
In a letter dated May 12, 2010, OWCP informed appellant that the information submitted
was insufficient to establish his claim and allowed him 30 days to submit additional information,
including a detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to the cause of the diagnosed condition.
Appellant submitted a May 3, 2010 report from Dr. Ackerman.
He informed
Dr. Ackerman that he had reinjured his right shoulder on April 28, 2010 during a physical fitness
routine.3 Appellant was reportedly working on an incline bench when his shoulder gave out.
Examination of the right shoulder revealed significant weakness with attempted supination.
Forward elevation was to 90 degrees; strength was 3/5 in the supraspinatus and 4/5 in the
infraspinatus and subscapular. There was no tenderness to palpation over the acromioclavicular
joint. X-rays of the cervical spine showed some anterior osteophyte which appeared to be
broken on the anterior aspect of the C5 region. Dr. Ackerman diagnosed a “likely C-spine injury
with nerve root impingement and a herniation of disc leading to the right shoulder, difficulty
secondary to weakness and/or rotator cuff tear or labral tear.” The record contains a May 3,
2010 x-ray of the cervical spine and right shoulder.
In an undated statement, appellant indicated that he had never experienced strength loss
in his right shoulder prior to the claimed April 28, 2010 injury. He noted that in March 2009, he
had a prior claim for a right shoulder injury, which resulted in pain rather than weakness.
In a May 27, 2010 report, Dr. Ackerman reviewed the history of injury, as related by
appellant. Appellant reported that a week before the April 28, 2010 incident he was doing
incline bench workout and felt a twinge in his neck and some pain in the posterior aspect of the
neck and shoulder. The pain improved until April 28, 2010 when he was doing incline bench
again and the weights gave out on him. Appellant had been experiencing pain ever since, with
occasional twinges in his neck to the posterior shoulder and neck pain to significant weakness in
his arm. Examination of the neck revealed full range of motion and 5/5 muscle strength.
Appellant was actively able to raise his right arm to about 120 degrees and abduct to 90 degrees.
Strength in the supraspinatus, infraspinatus and subscap was 4/5. Appellant had no weakness of
biceps flexion. He did, however, have weakness with supination (4.5/5) and weakness in the
triceps. A magnetic resonance imaging (MRI) scan of the cervical spine revealed right
2

Appellant was in a physical fitness program sanctioned by his employing establishment whereby he must spend
three hours on off-duty time engaged in physical fitness.
3

Dr. Ackerman noted that appellant sustained a prior work-related right shoulder injury in April 2009. (File No.
xxxxxx008).

2

paracentral disc protrusion at C5-6 with mild compression on the cervical cord at this level. An
MRI scan of the right shoulder did not reveal any labral tear, rotator cuff or internal derangement
other than some mild impingement and rotator cuff tendinitis. Dr. Ackerman opined that the
shoulder was “clear.” Regarding the cervical spine, based on MRI scan findings and significant
weakness, he recommended evaluation by a spine specialist. In an accompanying duty status
report, Dr. Ackerman noted findings of cervical disc protrusion and released appellant to return
to full duty.
Appellant submitted May 27, 2010 progress notes from Dr. Eric M. Kutz, a Boardcertified osteopath, specializing in orthopedic surgery, who related that appellant “recently was
weight lifting and developed an acute onset of weakness of the right upper extremity.”
Dr. Kutz’s examination of the cervical spine revealed slight decreased range of motion,
secondary to stiffness. Sensation was intact. Grip strength was 5/5. Flexion and extension at the
elbow and wrist were 5/5. Strength was 4/5 with adduction of the right shoulder. A recent MRI
scan showed significant degenerative changes at C5-6. Dr. Kutz diagnosed degenerative disc
disease at C5-6 with disc protrusion.
The record contains a June 14, 2010 memorandum of conference between Team Leader
Murphy of the employing establishment and an OWCP claims examiner. Team Leader Murphy
confirmed that appellant was in fact performing authorized physical training at home as part of
the employing establishment’s physical fitness program when he was injured.
The record contains progress notes for the period June 3 through 10, 2010, signed by a
physical therapist.
By decision dated June 15, 2010, OWCP denied appellant’s claim. Although it accepted
that the work event occurred as alleged, it found that the medical evidence did not contain a
diagnosis that could be connected to the accepted event and, therefore, was insufficient to
establish that appellant had sustained an injury under FECA on April 28, 2010.
On June 22, 2010 appellant requested reconsideration. He stated that Dr. Ackerman
informed him that his condition was a direct result of lifting weights. Appellant noted that his
injury was temporary and that his condition had improved as a result of prescribed physical
therapy. He represented that he was including a copy of a June 8, 2010 letter from
Dr. Ackerman confirming his opinion that the diagnosed condition was caused by the April 28,
2010 incident. No such letter was included with appellant’s request.4
Appellant submitted a May 27, 2010 prescription for physical therapy signed by
Dr. Kutz, containing a diagnosis of cervical sprain and degenerative joint disease. The record
also contains physical therapy notes for the period June 1 through 21, 2010, signed by physical
therapists.
By decision dated September 21, 2010, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted did not warrant merit review.

4

The record does not contain a copy of a June 8, 2010 letter from Dr. Ackerman.

3

LEGAL PRECEDENT -- ISSUE 1
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.5 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.6
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of 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, that an injury was sustained in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.7 When an employee claims that he sustained a traumatic injury in the
performance of duty, he must establish the fact of injury, consisting of two components, which
must be considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury, and generally
this can be established only by medical evidence.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship.10 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.11 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.12

5

5 U.S.C. § 8102(a).

6

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
7

Robert Broome, 55 ECAB 339 (2004).

8

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by FECA, refers to a disease proximately caused by the employment.
5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
9

Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Id.

12

20 C.F.R. § 10.303(a).

4

Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.13
ANALYSIS -- ISSUE 1
OWCP accepted that appellant was a federal employee, that he timely filed his claim for
compensation benefits and that the April 28, 2010 work-related incident occurred as alleged and
occurred within the performance of duty.14 The issue, therefore, is whether he has submitted
sufficient medical evidence to establish that the employment incident caused an injury. The
medical evidence presented does not contain a rationalized medical opinion establishing that the
work-related incident caused or aggravated any particular medical condition or disability.
Therefore, appellant has failed to satisfy his burden of proof.
On May 3, 2010 Dr. Ackerman stated that appellant had reinjured his right shoulder on
April 28, 2010 during a physical fitness routine. He provided examination findings and
diagnosed a “likely C-spine injury with nerve root impingement and a herniation of disc leading
to the right shoulder, difficulty secondary to weakness and/or rotator cuff tear or labral tear.”
Dr. Ackerman did not provide a definitive diagnosis. Moreover, he did not offer an opinion as to
the cause of appellant’s cervical and shoulder conditions. Medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.15 Similarly, Dr. Ackerman’s May 3, 2010 duty status report lacks
probative value, as it does not contain a definitive diagnosis or an opinion on causal relationship.
In a May 27 report, Dr. Ackerman reviewed the history of the April 28, 2010 injury and
provided examination findings. He noted the results of a cervical spine MRI scan, which
revealed right paracentral disc protrusion at C5-6 with mild compression on the cervical cord,
and an MRI scan of the right shoulder, which did not reveal any labral tear, rotator cuff or
internal derangement other than some mild impingement and rotator cuff tendinitis. In an
accompanying duty status report, Dr. Ackerman noted findings of cervical disc protrusion and
released appellant to return to full duty. As neither report contained an opinion as to the cause of
appellant’s conditions, they are of limited probative value. Although Dr. Ackerman noted
appellant’s statement that he was injured on the date in question, he did not offer his own opinion

13

John W. Montoya, 54 ECAB 306 (2003).

14

OWCP confirmed with the employing establishment that at the time of injury appellant was performing
physical training at home as part of its physical fitness program.
15

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

5

on causal relationship or explain the medical process whereby the lifting incident would be
competent to cause the diagnosed conditions.
In May 27, 2010 progress notes, Dr. Kutz related that appellant “recently was weight
lifting and developed an acute onset of weakness of the right upper extremity.” He provided
examination findings and diagnosed degenerative disc disease at C5-6 with disc protrusion.
Although Dr. Kutz described the events of April 28, 2010, as reported by appellant, he did not
offer his own opinion as to the cause of appellant’s current condition. Therefore, his report is of
diminished probative value and is insufficient to establish appellant’s claim.
The record contains progress notes signed by a physical therapist. As these reports were
not signed by individuals that qualify as “physicians” under FECA, the Board finds that they do
not constitute probative medical evidence.16 The record does not contain an opinion by any
qualified physician supporting appellant’s contention that his neck or shoulder condition was
causally related to the accepted April 28, 2010 event.
Appellant expressed his belief that his neck and shoulder conditions resulted from the
April 28, 2010 employment incident. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.17 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused or aggravated by employment
factors or incidents, is sufficient to establish causal relationship.18 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that his condition was caused by the work-related incident
is not determinative.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment, and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how his claimed shoulder or neck condition was caused
or aggravated by his employment, he has not met his burden of proof in establishing that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.

16

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.” See
Merton J. Sills, 39 ECAB 572, 575 (1988).
17

See Joe T. Williams, 44 ECAB 518, 521 (1993).

18

Id.

6

LEGAL PRECEDENT -- ISSUE 2
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee may obtain this relief through a request to the district Office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”19
The application for reconsideration must set forth arguments and contain evidence that
either:
(1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.20
A timely request for reconsideration may be granted if OWCP determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.21 Where
the request is timely but fails to meet at least one of these standards, OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.22
ANALYSIS -- ISSUE 2
By decision dated June 15, 2010, OWCP denied appellant’s claim on the grounds that the
medical evidence failed to establish a causal relationship between the accepted April 28, 2010
incident and his current conditions. The issue is whether the evidence and argument submitted in
support of his June 22, 2010 request for reconsideration is sufficient to warrant further merit
review pursuant to 20 C.F.R. § 10.606(b)(2). The Board finds that appellant failed to 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.
In his application for reconsideration, appellant did not identify a specific point of law or
show that it was erroneously applied or interpreted, nor did he advance a new and relevant legal
argument. Rather, his argument was based on the representation that Dr. Ackerman told him that
his condition was a direct result of lifting weights and that his injury was temporary and had
improved as a result of prescribed physical therapy. These arguments repeat those previously
made and are not legal in nature.
19

20 C.F.R. § 10.605.

20

Id. at § 10.606.

21

Donna L. Shahin, 55 ECAB 192 (2003).

22

20 C.F.R. § 10.608.

7

A claimant may be entitled to a merit review by submitting new and relevant evidence.
Appellant did not, however, submit new and relevant medical evidence in this case. He
submitted a May 27, 2010 prescription for physical therapy signed by Dr. Kutz, containing a
diagnosis of cervical sprain and degenerative joint disease. Appellant also submitted physical
therapy notes for the period June 1 through June 21, 2010. This information contained in these
documents is repetitive of those previously received and reviewed by OWCP and is, therefore
cumulative and duplicative in nature.23 The Board finds that Dr. Kutz’s report does not
constitute relevant and pertinent new evidence not previously considered by OWCP.24
Therefore, OWCP properly determined that this evidence did not constitute a basis for reopening
the case for a merit review. Appellant represented that he was including a copy of a June 8, 2010
letter from Dr. Ackerman confirming his opinion that the diagnosed condition was caused by the
April 28, 2010 incident. The Board notes that the record does not contain a letter from
Dr. Ackerman dated June 8, 2010.
The Board accordingly 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 denied merit review.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on April 28, 2010. The Board further
finds that OWCP did not abuse its discretion in refusing to reopen his case for further review of
the merits pursuant to 5 U.S.C. § 8128(a).

23

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
24

See Susan A. Filkins, 57 ECAB 630 (2006).

8

ORDER
IT IS HEREBY ORDERED THAT the September 21 and June 15, 2010 decisions of
the Office of Workers’ Compensation Programs are affirmed.25
Issued: September 30, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

25

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.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OVERTON BROOKS VA MEDICAL CENTER,
Shreveport, LA, Employer
__________________________________________

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

Docket No. 19-1857
Issued: May 5, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 8, 2019 appellant filed a timely appeal from a July 5, 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 bilateral carpal
tunnel syndrome causally related to the accepted April 3, 2017 employment injury.
FACTUAL HISTORY
On April 4, 2017 appellant, then a 37-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on April 3, 2017 she injured her wrist, back, arms, and neck as she was
performing compressions on a mannequin while in the performance of duty. On the reverse side
1

5 U.S.C. § 8101 et seq.

of the claim form, her supervisor indicated that appellant’s injury was caused by her own
misconduct as she was using her backside to perform compressions on the mannequin. Appellant
did not stop work.
In a development letter dated May 18, 2017, OWCP advised appellant of the factual and
medical deficiencies of her claim. It informed her of the type of evidence necessary to establish
her claim and provided a questionnaire for her completion regarding the circumstances of the
injury. OWCP also requested a narrative medical report from appellant’s treating physician which
contained a detailed description of findings and diagnoses, explaining how the alleged incident
caused, contributed to, or aggravated her medical conditions. It afforded her 30 days to submit the
necessary evidence.
In response, appellant provided an April 3, 2017 statement from A.M., a registered nurse,
who reported that she observed appellant sitting on top of a mannequin in order to perform
compressions on it. A.M. told appellant that her technique was inappropriate and appellant
explained to A.M. that she was unable to do the compressions with her arms because she was
weak, had no strength, and was exhausted.
In an April 4, 2017 witness statement, J.D., a nursing staff development instructor,
observed appellant having difficulty performing compressions on a voice-activated mannequin and
that she was previously observed performing the compressions with her backside. After observing
that appellant could not perform proper compressions on a cushion or on the floor after
approximately 30 attempts, J.D. demonstrated the proper technique and allowed appellant to
attempt the compressions again. Appellant informed J.D. that she was tired and that her wrists
hurt. J.D. then informed appellant that she may need to get a waiver from her physician if she was
having a physical issue.
In an e-mail of even date, Dr. Robert Lukeman, Board-certified in internal medicine,
contacted appellant’s supervisor and reported that he observed appellant performing compressions
on a mannequin by repeatedly sitting on its chest, lifting up, and sitting down again. He
immediately asked A.M. to address the technique with appellant.
In an April 4, 2017 incident report, N.B., appellant’s supervisor, provided that appellant
verbalized that she was unable to complete her compressions on a mannequin despite several
attempts. Appellant was observed by another employee using her backside to perform the
compressions on the mannequin. An education instructor attempted to assist appellant with her
compressions, however, appellant was still unable to complete her training.
In a partially legible April 4, 2017 medical report, Dr. Sudarshan Tanga, Board-certified in
pain medicine, recorded that appellant experienced pain in her arms, shoulders, back, and wrists
while performing compressions on a mannequin at work. Appellant indicated that, because she
was small, it was difficult for her to perform the compressions and that she was instructed to
continue her compressions after she informed her instructor that she was experiencing pain.
Dr. Tanga diagnosed sprains of her shoulders, back, and upper extremities and advised that she
take an over-the-counter medication to treat her injuries. In a medical note of even date, he noted
pain in appellant’s shoulders, back, and wrists and recommended work restrictions until her next
appointment on April 10, 2017.

2

In April 4, 2017 progress notes, Ramona Grant and Rachal Carter, registered nurses, and
Helen Hall, a physician assistant, described appellant’s injuries as a flare-up of her fibromyalgia,
severe generalized pain, and musculoskeletal pain. Ms. Hall reported that appellant presented with
a “fibromyalgia crisis” after attempting to perform repeated compressions on a mannequin.
In an April 10, 2017 medical note, Dr. Tanga noted pain in appellant’s right arm and
recommended additional work restrictions until she could be seen by an orthopedic physician.
In an April 17, 2017 medical report, Dr. Michael Acurio, a Board-certified orthopedic
surgeon, reported that appellant experienced pain in her wrists, arms, neck, and shoulders as a
result of repeatedly performing compressions on a mannequin. He also noted her history of
fibromyalgia and that she was informed in an emergency room that her pain was due to a flare-up
of her condition. Upon evaluation and review of x-rays of appellant’s cervical spine and bilateral
shoulders, Dr. Acurio diagnosed carpal tunnel syndrome and a cervical strain. In a medical note
of even date, he explained that she would need to remain out of work until her next appointment
where further recommendations could be made.
In an April 24, 2017 electromyography and nerve conduction velocities report, Dr. David
Adams, a Board-certified neurologist, saw appellant due to the onset of numbness and tingling in
both of her hands after performing compressions on a mannequin on April 3, 2017. He found
bilateral carpal tunnel syndrome, but no evidence of radiculopathy, brachial plexopathy, or ulnar
neuropathy in either upper extremity.
In a medical report of even date, Dr. Acurio recorded appellant’s complaints of upper
extremity numbness and tingling. Based on her diagnostic studies and evaluation, he diagnosed
bilateral carpal tunnel syndrome, a cervical strain, and cervical radiculopathy. Dr. Acurio opined
that appellant would need a carpal tunnel release to treat her condition. In an April 24, 2017
medical note, he informed the employing establishment that she was in the process of scheduling
a magnetic resonance imaging (MRI) scan and would need to remain out of work until further
notice.
In an April 27, 2017 diagnostic report, Dr. Kurt Grozinger performed an MRI scan of
appellant’s cervical spine due to her history of right arm pain and numbness. He found an
impression of a small central disc bulge at C5-6 and reported that her MRI scan was otherwise
normal.
In a May 22, 2017 medical report, Dr. Acurio noted appellant’s complaints of numbness
and tingling in her hands, as well as pain in her neck and back. Upon consultation with her, he
scheduled a carpal tunnel release procedure for May 26, 2017 to treat her condition. In a medical
note of even date, Dr. Acurio informed the employing establishment that appellant would need
nine weeks off from work following the procedure.
In a June 5, 2017 medical report, Dr. Acurio updated appellant’s condition after her
May 26, 2017 right carpal tunnel release and scheduled her left carpal tunnel release for
June 23, 2017.
In response to OWCP’s questionnaire, appellant, through counsel, submitted a June 13,
2017 statement in which she described the April 3, 2017 employment incident. Appellant asserted
that she used all of the strength in her arms, hands, and upper body to perform compressions, but
3

the compressions were not registered by the mannequin. Sometime after her instructor moved the
mannequin to the ground to assist her, she began to experience pain in her wrists, neck, arms, and
shoulders with numbness and tingling going into her hands. The next day, appellant sought care
from the emergency department and eventually from Dr. Acurio as her pain continued. She also
noted that she had been diagnosed with fibromyalgia in October 2016 and that she had previously
experienced neck and back pain that came and went prior to the April 3, 2017 employment
incident.
By decision dated June 19, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish that the injury and/or events occurred as
she described. It explained that the circumstances of her injury were not consistent and therefore
failed to support that her injury occurred in the manner she alleged. OWCP concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
OWCP continued to receive evidence. In a June 20, 2017 medical note, Dr. Acurio noted
that appellant suffered an injury while performing cardiopulmonary resuscitation (CPR) and that
he believed that this worsened her carpal tunnel syndrome due to the repetitive compressions.
In a July 18, 2017 letter, the employing establishment controverted appellant’s claim. It
argued that the evidence of record failed to establish fact of injury and causal relationship.
In a July 31, 2017 medical report, Dr. Acurio updated appellant’s condition and advised
that she attend physical therapy and remain off work for a month until her next appointment.
In an August 28, 2017 medical report, Dr. Acurio noted that appellant was experiencing
some popping in her left hand, but therapy had helped her conditions. He recommended that she
continue her therapy sessions and remain off work.
On December 13, 2017 appellant, through counsel, requested reconsideration. Counsel
explained that appellant performed several rounds of CPR using her arms, hands, and upper body
strength and experienced increased pain in her wrists, neck, arms, and shoulders, as well as
numbness and tingling in her hands. He asserted that the totality of the evidence was sufficient to
establish her claim.
In a September 25, 2017 narrative medical report, Dr. Acurio discussed the nature of
appellant’s carpal tunnel syndrome. He explained that repetitive motions, such as performing
CPR, and extension of the wrists, can cause swelling and inflammation in the carpal canal, putting
pressure on the median nerve. Dr. Acurio opined that the chest compressions appellant performed
on the mannequin had increased the swelling and pressure on her median nerve which
subsequently resulted in her carpal tunnel syndrome. He concluded that the April 3, 2017
employment incident had both caused and exacerbated her carpal tunnel syndrome.
In an October 23, 2017 medical report, Dr. Acurio diagnosed bilateral carpal tunnel
syndrome and early chronic regional pain syndrome in appellant’s left upper extremity.
In a November 27, 2017 medical note, Dr. Acurio recommended that appellant remain off
work until her next appointment on December 26, 2017.

4

In a January 26, 2018 letter, the employing establish again controverted appellant’s claim
arguing that the evidence of record failed to establish fact of injury and causal relationship.
On March 1, 2018 OWCP referred appellant to Dr. Robert Holladay IV, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her
employment-related conditions.
In his April 3, 2018 report, Dr. Holladay reviewed the statement of accepted facts (SOAF),
history of injury, and the medical evidence of record. He conducted a physical examination and
found that appellant had full range of motion of all areas with some complaints of discomfort with
certain movements. Dr. Holladay did not find objective evidence of swelling, deformity,
neurological loss, or motor loss. On clinical examination of appellant’s lower back, he found no
objective evidence of an acute structural problem associated with the lumbar spine complaints.
Dr. Holladay explained that, at most, he could associate the April 3, 2017 mechanism of injury to
a temporary soft tissue strain/sprain of the wrists and a strain/sprain of the scapula and upper
thoracic spine posteriorly. He opined that the one-time incident on April 3, 2017 would not be
consistent with known medical literature regarding the cause of carpal tunnel syndrome and that it
was most likely a preexisting condition. Dr. Holladay discussed that the “American Medical
Association, Guides to the Evaluation of Disease and Injury Causation” provide that the activity
of CPR would not meet the criteria of force, repetition, and posture necessary to have a causal
association. He also asserted that the objective evidence in the medical record did not support the
concept of an aggravation or acceleration of appellant’s preexisting bilateral carpal tunnel
syndrome. Dr. Holladay concluded that she sustained a soft tissue sprain/strain in both wrists and
the upper thoracic spine and scapular area that have long since resolved.
By decision dated April 18, 2018, OWCP affirmed in part and modified in part the June 19,
2017 decision. It accepted and closed appellant’s traumatic injury claim for a strain of other
muscles, facias, and tendons at the shoulder and upper arm level in the right and left arms, sprains
of the right and left wrists, and a sprain of the ligaments of the thoracic spine. OWCP also
determined, however, that the evidence of record did not support that her bilateral carpal tunnel
syndrome was causally related to the April 3, 2017 employment injury.
OWCP continued to receive evidence. In a September 18, 2018 medical report, Dr. Acurio
disagreed with Dr. Holladay’s report, explaining that the chest compressions appellant performed
on the mannequin increased the swelling and pressure on the median nerve and subsequently
resulted in carpal tunnel syndrome. He opined that the April 3, 2017 employment incident caused
and certainly exacerbated her carpal tunnel syndrome. With regard to Dr. Holladay’s report,
Dr. Acurio noted that appellant had symptoms prior to the April 3, 2017 employment injury and
that she had more symptoms afterwards, meaning the injury was an exacerbation of a preexisting
condition.
In November 12 and December 8, 2018 medical reports, Dr. Jeffrey Fritz, Board-certified
in internal medicine, noted that appellant noted pain in her neck, back, and bilateral wrists due to
a work incident in which she was performing compressions on a mannequin repeatedly. He
diagnosed sprains of her wrists and hands, the thoracic spine, and her upper arms.
On April 11, 2019 appellant, through counsel, requested reconsideration of OWCP’s
April 18, 2018 decision.
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Appellant attached a March 27, 2019 medical report, in which Dr. Fritz opined that, per his
review of her medical history, evaluation, and surrounding circumstances, the April 3, 20172
employment incident exacerbated her preexisting bilateral carpal tunnel syndrome. Dr. Fitz
disagreed with Dr. Holladay’s conclusion that her conditions were preexisting and therefore were
not caused by her April 3, 2017 work injury. He further explained that carpal tunnel is caused by
pressure on the median nerve in the carpal canal and that in a person with preexisting carpal tunnel,
repetitive motions of the wrists in a short period of time can increase swelling and inflammation,
putting more pressure on the median nerve and exacerbating the condition. Dr. Fritz opined that
performing CPR on the mannequin required repetitive motions and extension of the wrists which
increased the swelling and pressure on appellant’s median nerves and thus exacerbated her bilateral
carpal tunnel syndrome.
By decision dated July 5, 2019, OWCP affirmed its previous decision finding that the new
medical evidence was of insufficient probative value to establish that appellant’s preexisting
condition of carpal tunnel was temporarily or permanently aggravated as a result of her accepted
April 3, 2017 employment injury.
LEGAL PRECEDENT
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.3 To establish 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 sufficient to establish such causal relationship.4 The
opinion of the physician must be based on a complete factual and medical background, 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.5
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.6
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary

2

The Board notes that Dr. Fritz’ report includes that the date of the employment injury was April 3, 2018, but this
appears to be a typographical error as the date of the accepted employment injury was April 3, 2017.
3

J.G., Docket No. 19-1303 (issued February 6, 2020); F.L., Docket No. 17-1613 (issued August 15, 2018).

4

K.V., Docket No. 18-0723 (issued November 9, 2018).

5

I.J., 59 ECAB 408 (2008).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); N.C.,
Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).

6

shall appoint a third physician who shall make an examination.7 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or a DMA, OWCP shall appoint a third
physician to make an examination.8 When there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.9
ANALYSIS
The Board finds that the case is not in posture for a decision.
In his April 3, 2018 medical report, Dr. Holladay opined that the one-time incident on
April 3, 2017 would not be consistent with known medical literature regarding the cause of carpal
tunnel syndrome and that it was most likely a preexisting condition. He noted that the “A.M.A.,
Guides on Disease and Injury Causation” provide that the activity of CPR would not meet the
criteria of force, repetition, and posture necessary to have a causal association. Dr. Holladay also
asserted that the objective evidence in the medical record did not support the concept of an
aggravation or acceleration of appellant’s preexisting bilateral carpal tunnel syndrome. He
summarized by stating that she sustained a soft tissue sprain/strain in both wrists and the upper
thoracic spine and scapular area that have long since resolved.
In his September 25, 2017 and September 18, 2018 medical reports, Dr. Acurio explained
that repetitive motions, such as performing CPR and extension of the wrists, can cause swelling
and inflammation in the carpal canal, putting pressure on the median nerve. He disagreed with
Dr. Holladay’s findings, asserting that the April 3, 2017 employment incident exacerbated
appellant’s preexisting bilateral carpal tunnel syndrome. Further, in his March 27, 2019 medical
report, Dr. Fritz explained that in a person with preexisting carpal tunnel, repetitive motions of the
wrists in a short period of time can increase swelling and inflammation, putting more pressure on
the median nerve and exacerbating the condition. Both Drs. Acurio and Fritz opined that the
repetitive motions and extension of the wrists involved in performing CPR on the mannequin
increased the swelling and pressure on appellant’s median nerves and thus exacerbated her
preexisting bilateral carpal tunnel syndrome.
The Board finds that a conflict in medical opinion has been created between appellant’s
attending physicians and that of the second opinion physician regarding whether her preexisting
bilateral carpal tunnel syndrome was aggravated by the accepted April 3, 2017 employment
injury.10 Section 8123 of FECA provides that, if there is a disagreement between the physician

7

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

8

20 C.F.R. § 10.321.

9

K.S., Docket No. 19-0082 (issued July 29, 2019); V.G., 59 ECAB 635 (2008).

10

See S.M., Docket No. 19-0397 (issued August 7, 2019).

7

making the examination for the United States and the employee’s physician, OWCP shall appoint
a third physician who shall make an examination.11
As there remains an unresolved conflict in medical opinion regarding whether appellant’s
diagnosed bilateral carpal tunnel syndrome condition is causally related to, or a consequence of,
the accepted April 3, 2017 employment injury the case shall be remanded to OWCP for creation
of an updated SOAF and referral to an appropriate specialist to obtain an impartial medical opinion
regarding whether the acceptance of her claim should be expanded to include his diagnosed
bilateral carpal tunnel syndrome condition. Following this and any other development deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

Supra note 7.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, SAINT LOUIS BULK
MAIL CENTER, Hazelwood, MO, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1124
Issued: June 19, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 11, 2008 appellant filed a timely appeal from August 13 and November 5,
2007 and February 21, 2008 decisions of the Office of Workers’ Compensation Programs
denying his traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a lumbar injury in the
performance of duty on February 22, 2006.
FACTUAL HISTORY
On May 4, 2006 appellant, then a 47-year-old equipment mechanic, filed a traumatic
injury (Form CA-1) claiming that, on February 22, 2006, he sustained a herniated disc at L2-3
when he slipped and fell from a mail chute while grinding welds. He stopped work on
February 22, 2006 and returned to limited-duty work on April 17, 2006. Appellant noted that he
submitted medical records regarding the February 22, 2006 injury under File No. xxxxxx656,

accepted for an L4-5 disc herniation sustained in 1983 and aggravation of an L4-5 disc
herniation in 1991.
In an April 3, 2006 report, Dr. Kent A. Campbell, an attending osteopathic physician,
Board-certified in family practice, diagnosed low back pain and noted work restrictions.
In a May 17, 2006 letter, the Office advised appellant of the type of additional evidence
needed to establish his claim.1 Appellant submitted additional evidence.
In an April 14, 2006 letter, Dr. Campbell noted appellant’s history of back injuries
beginning with the 1983 L4-5 disc herniation. He opined that “steel work” aggravated the
accepted lumbar injuries, totally disabling appellant for work from February 22 to
April 14, 2006.
An April 21, 2006 lumbar magnetic resonance imaging (MRI) scan showed a central and
right paracentral herniation at L2-3 encroaching the thecal sac and right L3 descending nerve
root, unchanged from March 14, 2005 studies.
In a June 6, 2006 letter, Dr. Campbell stated that appellant was injured “on or about
February 22, 2006,” aggravating his back while lifting heavy steel and grinding welds. He
explained that it was “impossible to tell exactly when [appellant’s] newest herniation occurred
but it stands to reason that is probably when it occurred.… [T]he diagnosis of herniated nucleus
pulposus is present and most certainly a result of an injury at work.”
By decision dated June 22, 2006, the Office denied the claim as he submitted insufficient
factual evidence to corroborate the claimed February 22, 2006 incident.
In a June 20, 2007 letter, appellant requested reconsideration. He submitted a May 24,
2007 report from Dr. Kenneth R. Smith, Jr., a Board-certified neurosurgeon and impartial
medical examiner, for File No. xxxxxx656. Dr. Smith stated that appellant twisted his back then
slipped while working in a confined area in February 2006, causing or exacerbating a ruptured
disc at L2-3, requiring surgery in February 2007. Appellant also submitted an October 24, 2005
report from Dr. Campbell noting radicular pain into both lower extremities and diagnosing low
back pain.
By decision dated August 13, 2007, the Office affirmed the prior decision, finding that
the new evidence submitted was insufficient to establish fact of injury.
In an August 29, 2007 letter, appellant requested reconsideration, asserting that the
medical evidence was sufficient to require further development. He submitted additional
evidence.
In an August 17, 2007 letter, the employing establishment confirmed that appellant was
injured on February 22, 2006. A coworker corroborated that, on February 22, 2006, appellant
1

In a May 19, 2006 report, an Office medical adviser reviewed evidence from File No. xxxxxx656. He noted that
an L2-3 disc herniation was evident on January 2, 2003 and April 21, 2006 studies.

2

fell from a mail chute and immediately complained of back pain. Appellant was granted leave
on February 22, 2006 to seek medical treatment.
In a February 22, 2006 chart note, Dr. Campbell stated that appellant presented with
severe low back pain and lumbar radiculopathy after lifting heavy steel and working in awkward
positions. He found positive straight leg raising tests, diminished deep tendon reflexes in both
legs and significant spasm at the lumbosacral junction. Dr. Campbell diagnosed low back pain.
Appellant presented again on February 23 and 24, 2006 with intense low back and bilateral lower
extremity pain such that he could no longer stand erect. Dr. Campbell recommended
hospitalization. Appellant’s symptoms improved slightly through April 13, 2006.
By decision dated November 5, 2007, the Office modified its previous decision, finding
that appellant had established the February 22, 2006 incident as factual. It denied the claim as
the medical evidence was insufficient to establish causal relationship.
In a December 5, 2007 letter, appellant requested reconsideration. He submitted the
Office’s November 30, 2007 decision in File No. xxxxxx656, finding that Dr. Campbell’s
testimony at an October 2006 telephonic hearing established that the February 22, 2006 incident
constituted an intervening incident.
By decision dated February 21, 2008, the Office denied modification, finding that
Dr. Campbell’s reports were insufficiently rationalized to establish that the February 22, 2006
incident caused an injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act, 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, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
jointly. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the alleged employment incident.5 Second, the employee must submit sufficient
2

5 U.S.C. §§ 8101-8193.

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).

3

evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.6
ANALYSIS
The Office accepted that, on February 22, 2006, appellant slipped and fell from a mail
chute. He claimed that this incident caused a herniated L2-3 disc. The Office denied the claim
on the grounds that the medical evidence was insufficient to establish causal relationship.
Appellant submitted reports from Dr. Campbell, an attending osteopathic physician,
Board-certified in family practice. On February 22, 2006 Dr. Campbell opined that lifting steel
and working in awkward positions caused low back pain. However, pain is a symptom and not a
diagnosis.7
Regarding causal relationship, Dr. Campbell stated that appellant was totally disabled for
work from February 22 to April 14, 2006 due to “steel work” aggravating the accepted lumbar
injuries. However, he did not state that appellant fell from a mail chute on February 22, 2006, as
appellant claimed and the employing establishment corroborated. Similarly, Dr. Smith, a Boardcertified neurosurgeon and impartial medical examiner for File No. xxxxxx656, noted that
appellant slipped in February 2006, but did not mention the fall from a mail chute. Thus, neither
physician described the claimed causative incident. Medical opinion based on an incomplete or
inaccurate factual history is of little probative value.8
Also, Dr. Campbell stated both that appellant herniated the disc on February 22, 2006 and
that it was impossible to determine when the herniation occurred. The equivocal nature of this
reasoning further diminishes the probative value of his opinion.9 The Board therefore finds that
the Office properly denied appellant’s claim, as he submitted insufficient medical evidence to
establish a causal relationship between the February 22, 2006 incident and the claimed herniated
L2-3 disc.
CONCLUSION
The Board finds that appellant has not established that he sustained a lumbar injury on
February 22, 2006 in the performance of duty.

6

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

7

See Robert Broome, 55 ECAB 339 (2004).

8

M.W., 57 ECAB 710 (2006); Beverly R. Jones, 55 ECAB 411 (2004).

9

T. M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 21, 2008, November 5 and August 13, 2007 are
affirmed.
Issued: June 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 09-1615
Issued: April 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 10, 2009 appellant filed a timely appeal from June 19, 2008 and April 23, 2009
decisions of the Office of Workers’ Compensation Programs denying his claim for a traumatic
injury on December 12, 2007. 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 sustained an injury on December 12, 2007 while in the
performance of duty.
FACTUAL HISTORY
On May 4, 2008 appellant, then a 37-year-old rural carrier, filed a traumatic injury claim
alleging that on December 12, 2007 he was injured when his delivery vehicle was struck from
behind by another vehicle. He stated that his whole body jerked forward causing pain. The day
after the accident he had pain and discomfort in his back, neck, shoulders, legs and hips. A
December 12, 2007 employing establishment accident report noted that another driver was

pulling out from a side road when she clipped the right rear fender of appellant’s vehicle that was
traveling on the main road. There was minor damage to the vehicles and no injuries were
reported.
In a February 6, 2008 report, Dr. Alfredo B. Cruz, a physician specializing in geriatrics,
stated that appellant was not able to work the previous week due to congestion, chills and fever.
He noted that appellant had rheumatoid arthritis, which might affect his immune system and
resistance to disease. Appellant also complained of persistent right leg pain and was scheduled
for venous Doppler studies. In an April 29, 2008 report, Dr. Cruz stated that appellant had been
a patient for several years. Lately, appellant had been experiencing a great deal of back pain. He
was referred to a rheumatologist who tentatively diagnosed rheumatoid arthritis or ankylosing
spondylitis. Dr. Cruz stated that “at one time while working [appellant] had a motor vehicle
accident which he thinks … aggravated his pain.” However, appellant was not able to seek
medical treatment because “he was not allowed by his job.” Pain medications were not effective
and a second rheumatologist recommended a pain management clinic.
By letter dated May 20, 2008, the Office asked appellant to submit additional evidence,
including medical evidence establishing causal relationship between the December 12, 2007
motor vehicle accident and a diagnosed medical condition. Appellant submitted copies of x-ray
reports taken December 12, 2007 of his lumbosacral spine and pelvis. The x-rays revealed no
fracture or other acute bone abnormality.
On June 13, 2008 the employing establishment challenged appellant’s claim on the
grounds that he failed to establish that he sustained an injury on December 12, 2007 in the
performance of duty.
By decision dated June 19, 2008, the Office denied appellant’s claim on the grounds that
the evidence did not establish that he sustained an injury on December 12, 2007 as a result of the
motor accident.
On June 30, 2008 appellant requested an oral hearing. A telephonic hearing was held on
February 10, 2009.
In a March 19, 2009 response to the hearing transcript, the employing establishment
denied that appellant advised management that he needed a medical appointment for a workrelated injury.
Following the hearing, appellant submitted additional evidence. In clinical notes dated
December 18, 2007, Dr. Cruz provided a history that his delivery vehicle was rear-ended on
December 12, 2007. Appellant did not seek emergency treatment because he thought his back
pain would go away. He had tenderness in his lumbar spine and bruising, especially on his right
hip. Dr. Cruz diagnosed contusions of the back, buttocks and right thigh and low back pain. In
notes dated January 30, 2008, he stated that appellant had back pain as a result of the accident
when his delivery vehicle was rear-ended. Dr. Cruz diagnosed low back pain and contusions of
the back, buttocks and thighs. In a motor vehicle accident report dated January 24, 2008 and
received by the Office on July 11, 2008, appellant alleged that he was injured on December 12,
2007 when his delivery vehicle was struck from behind by another vehicle pulling out from a

2

side road while his vehicle was moving forward to the next mailboxes on his route. On
March 22, 2008 appellant had a magnetic resonance imaging (MRI) scan of his lumbar spine that
was reported as normal.
In reports dated April 1 to July 29, 2008, received by the Office on April 1, 2009,
Dr. Robert M. Romaine, a podiatrist, discussed his treatment of appellant’s nonwork-related left
foot problems. In regard to appellant’s complaint of low back pain, Dr. Romaine instructed him
to consult his attending physician for that problem, Dr. Cruz. In a March 17, 2009 report,
Dr. Romaine stated that appellant had pain in his back, hip and left leg radiating to the left foot,
that his asserted was aggravated by his job requirements, including delivering mail, heavy lifting
and prolonged driving and walking. Appellant stated that on December 12, 2007 he was
involved in a motor vehicle accident and experienced pain in his neck, back, hips and legs.
Following the accident, his back and leg pain was aggravated by his physical job requirements.
Dr. Romaine opined that appellant’s back and leg pain was aggravated by his job as a rural
carrier.
In a statement received by the Office on February 10, 2009, appellant stated that on
December 12, 2007 he was hit hard on the driver’s side of his vehicle and his whole body jerked
forward causing pain and discomfort. He called the employing establishment and an acting
supervisor went to the scene to investigate. Appellant asked permission to see a physician the
following day but a supervisor told him there was no one to cover his job and they needed him to
work the next day. The supervisor advised appellant to tell his physician that he had a workers’
compensation injury but it was not necessary to fill out any papers. Appellant alleged that
management knew of the accident when it occurred but did not timely give him instructions on
how to file a compensation claim. The employing establishment denied that appellant advised
management that he needed a medical appointment for a work-related injury.
By decision dated April 23, 2009, an Office hearing representative affirmed the June 19,
2008 decision.1
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.3 An

1

Subsequent to the April 23, 2009 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

3

employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the employee’s
diagnosed condition and the compensable employment factors. The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.5
ANALYSIS
The Board finds that the evidence is insufficient to establish that appellant sustained an
injury on December 12, 2007 while in the performance of duty.
On May 20, 2008 appellant alleged that, on December 12, 2007, five months earlier, he
was injured when his delivery vehicle was struck from behind by another vehicle. He stated that
his whole body jerked forward causing pain. The day after the accident appellant alleged pain
and discomfort in his back, neck, shoulders, legs and hips. X-rays taken December 12, 2007 of
appellant’s lumbosacral spine and pelvis revealed no fracture or other abnormality. The Office
advised appellant that he needed to submit medical evidence establishing causal relationship
between the December 12, 2007 motor vehicle accidents and a diagnosed medical condition.
In clinical notes dated December 18, 2007, Dr. Cruz provided a history that appellant’s
delivery vehicle was rear-ended on December 12, 2007. Appellant did not seek emergency
treatment because he thought his back pain would go away. He had tenderness in his lumbar
spine and bruising, especially on his right hip. Dr. Cruz diagnosed contusions of the back,
buttocks and right thigh and low back pain. On January 30, 2008 he stated that appellant had
back pain as a result of the accident when his delivery vehicle was rear-ended. Dr. Cruz
diagnosed low back pain and contusions of the back, buttocks and thighs. On March 22, 2008
appellant had an MRI scan of his lumbar spine that was reported as normal. In April 2008,
Dr. Cruz stated that appellant had been experiencing a great deal of back pain. He was referred
to a rheumatologist who tentatively diagnosed rheumatoid arthritis or ankylosing spondylitis.
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

Dr. Cruz stated that “at one time while working [appellant] had a motor vehicle accident which
he thinks … aggravated his pain.” There are several deficiencies in his reports. Dr. Cruz did not
appear to have a complete and accurate factual background of the December 12, 2007 motor
vehicle accident. The accident report prepared on December 12, 2007 stated that it was a minor
accident with little damage to the vehicles and no reported injuries. It was not until appellant
filed a claim in May 2008, more than four months later, that he stated that his whole body jerked
forward at the time of the accident causing pain and discomfort. Dr. Cruz did not make a
specific diagnosis of the medical condition causing appellant’s back and leg pain. In fact, a
rheumatologist to whom he referred appellant made a tentative diagnosis of rheumatoid arthritis
or ankylosing spondylitis with no reference to a traumatic injury on December 12, 2007.
Dr. Cruz did not explain the mechanism of injury, i.e., what occurred in the course of the
accident on December 12, 2007 to cause physical injury. He noted that appellant believed that
the December 12, 2007 motor vehicle accident caused or aggravated his back and leg pain but
Dr. Cruz himself did not provide a rationalized medical opinion, based on a complete and
accurate factual and medical background, explaining how appellant sustained an injury causally
related to the December 12, 2007 motor vehicle accident. As noted, neither the fact that an
employee’s claimed condition became apparent during a period of employment, nor his belief
that his condition was aggravated by his employment, is sufficient to establish causal
relationship. Due to these deficiencies, the reports of Dr. Cruz are not sufficient to establish that
appellant sustained an injury causally related to the December 12, 2007 motor vehicle accident.
In a March 17, 2009 report, Dr. Romaine stated that appellant had pain in his back, hip
and left leg radiating to the left foot that he asserted was aggravated by his job requirements,
including delivering mail, heavy lifting and prolonged driving and walking. Appellant stated
that on December 12, 2007 he was involved in a motor vehicle accident and experienced pain in
his neck, back, hips and legs. Following the accident, he alleged that his back and leg pain was
aggravated by his physical job requirements. Dr. Romaine opined that appellant’s back and leg
pain was aggravated by his job as a rural carrier. Dr. Cruz was the primary physician treating
appellant’s back and leg pain. Dr. Romaine was treating appellant’s left foot condition.
Furthermore, appellant filed a claim for a traumatic injury alleging that the motor vehicle
accident on December 12, 2007 caused an injury when his body jerked forward. Dr. Romaine
provided no diagnosis for a December 12, 2007 traumatic injury. He opined only that
appellant’s day-to-day job requirements aggravated his back and leg pain. Dr. Romaine did not
provide any details of the December 12, 2007 motor vehicle accident or a specific diagnosis, nor
did he explain the mechanism of injury, how the motor vehicle accident caused appellant’s back
and leg pain. Due to these deficiencies, Dr. Romaine’s opinion is not sufficient to establish that
appellant sustained a medical condition causally related to his December 12, 2007 motor vehicle
accident.
The Office advised appellant of the medical evidence needed to establish that he
sustained an injury on December 12, 2007 causally related to his employment. Appellant did not
provide such medical evidence. There is no medical evidence of record containing a complete
and accurate factual and medical background, physical findings on examination and medical
rationale explaining how appellant’s back and leg pain was causally related to the December 12,
2007 motor vehicle accident. Therefore, the Office properly denied his claim.

5

On appeal, appellant contends that the Office’s decisions are contrary to fact and law. As
noted, however, he failed to provide probative medical evidence establishing that he sustained an
injury on December 12, 2007 causally related to his employment. The Office properly denied
his claim for compensation.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury on
December 12, 2007 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 23, 2009 and June 19, 2008 are affirmed.
Issued: April 12, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-485
Issued: April 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On December 26, 2012 appellant filed a timely appeal from an October 15, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
back injury on March 12, 2012 while in the performance of duty.
On appeal, appellant contends that he sustained an employment-related back injury.
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new evidence and contended that it established that he sustained an
employment-related back injury. The Board lacks jurisdiction to review evidence for the first time on appeal. See
20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On March 30, 2012 appellant, then a 52-year-old welder, filed a traumatic injury claim
alleging that on March 12, 2012 he hurt the right side of his lower back while grinding padeyes
on fair water planes at work. Annette S. Gray, appellant’s supervisor, stated that investigations
were being conducted as it had not been determined whether appellant was in the performance of
duty at the time of injury.
In an April 4, 2012 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that factual and medical evidence be submitted
within 30 days. OWCP also requested that the employing establishment submit any medical
evidence regarding treatment appellant received at its medical facility.
Appellant related that on March 12, 2012 he was performing his job on the Newport
News submarine. He was responsible for grinding and cleaning all padeyes and jacking pads on
the top port side of the diving plane which required him to bend, twist, lay, reach and position his
body in numerous awkward positions. Appellant noticed a tingling sensation in his right leg
towards the end of his assignment. He thought his leg had fallen asleep. Appellant stated that no
one witnessed this incident. After being unable to attend work for three days, he sought medical
treatment for his symptoms from Dr. Bobbie J. Sperry, a Board-certified family practitioner, who
referred him to Dr. Richard B. McAdam, a Board-certified neurosurgeon, who advised appellant
that he injured lower lumbar discs at levels 4 and 5 that required emergency surgery. Appellant
stated that he did not sustain any other injury on or off work between the date of injury and date
he reported his injury to his supervisor and physician.
In a March 16, 2012 prescription note, Dr. McAdam advised that appellant was under his
care and required lumbar spine surgery. He was advised to remain out of work until his surgery.
Dr. McAdam stated that, following surgery, appellant would be out of work approximately four
to six weeks. In a March 19, 2012 operative report, he advised that appellant underwent surgery
to treat his lumbar herniated nucleus pulposus at L4-5 on the right side with radiculopathy. In a
March 20, 2012 prescription, Dr. McAdam ordered medication to treat appellant’s muscle spasm.
Discharge instructions dated March 20, 2012 addressed appellant’s medications and wound care.
A March 30, 2012 work restriction report from the employing establishment stated that
appellant was temporarily totally disabled.
In a May 7, 2012 decision, OWCP denied appellant’s claim. It found that he failed to
establish that the March 12, 2012 incident occurred, as alleged. OWCP further found that the
medical evidence was not sufficient to establish that appellant sustained a medical condition
causally related to a work event.
On May 16, 2012 appellant requested a review of the written record by an OWCP hearing
representative.
In a March 16, 2012 report, Dr. McAdam noted that he previously treated appellant’s
back pain and that appellant currently presented with right posterolateral leg pain and severe foot
drop. He obtained a history of his family and social background. Dr. McAdam reported

2

essentially normal findings on physical and neurological examination except severe foot drop on
the right with a secondary antalgic gait and L5 sensory loss of the right lower extremity. The
foot drop was almost complete and strength was not antigravity. Dr. McAdam reviewed a
lumbar magnetic imaging (MRI) scan which revealed a degenerated side at L4-5, but stated that
the problem was an extruded disc on the right side at L4-5 caudal to the disc space that caused
severe compression of the L5 nerve root.3 He diagnosed lumbar herniated nucleus pulposus on
the right side at L4-5 and almost complete footdrop of the right lower extremity. Dr. McAdam
recommended microdiscectomy on the right side at L4-5. In an April 4, 2012 report, he noted
that appellant continued to have complete foot drop on the right which was no better or worse
prior to surgery. Appellant’s leg pain had greatly resolved.
On physical examination, Dr. McAdam reported that appellant’s wound looked good and
he had a foot drop gait. He advised that appellant was stable following microdiscectomy for an
extruded disc with residual severe foot drop. Dr. McAdam addressed his treatment plan. In a
prescription note dated April 4, 2012, he advised that appellant was currently out of work and
that he was to remain out of work until his evaluation on May 3, 2012. Dr. McAdam also
prescribed a right foot drop brace for appellant.
In a May 3, 2012 prescription note, he advised that appellant was to remain out of work
until his evaluation on May 31, 2012. In an undated attending physician’s report and a May 14,
2012 attending physician’s report, Dr. McAdam stated that the date of injury was March 12,
2012 and reiterated his diagnosis of lumbar herniated nucleus pulposus at L4-5 on the right side
with an extruded disc. In the May 14, 2012 report, he stated that the cause of appellant’s
condition was uncertain. Dr. McAdam only knew that appellant explained that his pain began at
work.
In a March 15, 2012 report, Dr. Sperry noted that appellant presented with a complaint of
right hip and leg pain. She diagnosed pain that was likely radiculopathy and weakness with foot
drop of the right lower extremity. Dr. Sperry addressed appellant’s treatment plan. In an
April 26, 2012 report, she noted that he presented for a follow-up evaluation for back pain and
right lower extremity radiculopathy after undergoing a microdiscectomy performed by
Dr. McAdam. Dr. Sperry further noted that appellant was advised by Dr. McAdam that the
discovery of lesions on an MRI scan that caused his symptoms were new and not related to his
prior herniation and, therefore, were deemed work related. Appellant related that his residual
pain for which he took medication was worse in the morning. Dr. Sperry advised that appellant
had diminished sensation on the medial aspect of his lower extremity that required a brace to
ambulate but he had an improving gait. She diagnosed back pain secondary to a herniated
nucleus pulposus at L4-5 with improving nerve impingement and right lower extremity
radiculopathy with foot drop. Dr. Sperry addressed appellant’s treatment plan.
In a March 20, 2012 supervisory mishap report form, J.W. Darby, a supervisor, provided
a history of injury that on March 12, 2012 appellant pulled something in his back while cleaning
welds for inspection.

3

The lumbar MRI scan was performed on March 15, 2012.

3

In an October 15, 2012 decision, an OWCP hearing representative modified the May 7,
2012 decision to reflect that the March 12, 2012 incident occurred as alleged. The hearing
representative denied appellant’s claim on the grounds that he failed to submit rationalized
medical evidence to establish a back injury causally related to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.10 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.11 The weight of the
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.12

4

5 U.S.C. §§ 8101-8193.

5

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

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

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

8

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

9

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

10

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

11

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

12

James Mack, 43 ECAB 321 (1991).

4

ANALYSIS
OWCP accepted that on March 12, 2012 appellant was grinding and cleaning padeyes on
fair water planes while in the performance of duty. It found that the medical evidence failed to
establish that he sustained a medical condition as a result of the accepted incident. The Board
finds that appellant failed to provide sufficient medical evidence demonstrating that he sustained
any back condition causally related to the March 12, 2012 employment incident.
Appellant submitted medical reports from Dr. McAdam who provided findings on
physical and neurological examination and reviewed MRI scan results. Dr. McAdam found that
appellant had a herniated nucleus pulposus at L4-5 on the right side with radiculopathy for which
he underwent surgery on March 19, 2012 and complete foot drop of the right lower extremity. In
a May 14, 2012 report, he advised that his lumbar condition was of uncertain etiology.
Dr. McAdam noted appellant’s explanation that his pain began at work, but he did not provide an
opinion that the accepted March 12, 2012 employment incident caused or contributed to
appellant’s diagnosed back condition.13 In the other reports discussed above and prescription
notes which found that appellant had complete foot drop on the right and was disabled for work
following his March 19, 2012 lumbar spine surgery, Dr. McAdam did not provide an opinion
addressing the causal relationship between the right lower extremity and lumbar conditions,
resultant surgery and disability and the accepted employment incident. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.14 Dr. McAdam failed to provide
sufficient medical rationale explaining how appellant’s back and right lower extremity
conditions and disability were causally related to the accepted employment incident. For the
stated reasons, the Board finds that his reports and prescription notes are insufficient to establish
appellant’s claim.
Dr. Sperry’s reports found that appellant had back pain secondary to herniated nucleus
pulposus at L4-5 with improving nerve impingement and right lower extremity radiculopathy
with foot drop. She noted Dr. McAdam’s finding that new lesions discovered on an MRI scan
caused appellant’s symptoms and were not related to his prior herniation, and thus, were work
related. However, Dr. Sperry did not provide her own opinion explaining why the established
March 12, 2012 employment incident caused or contributed to appellant’s back and right lower
extremity conditions.15 The Board finds that her reports are insufficient to establish appellant’s
claim.
The Board finds that there is insufficient rationalized probative medical evidence of
record to establish that appellant sustained a back injury causally related to the accepted
March 12, 2012 employment incident. Appellant did not meet his burden of proof.

13

Appellant’s belief that the employment caused or aggravated his condition is insufficient to establish causal
relationship. See Joseph T. Gulla, 36 ECAB 516 (1985).
14

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

15

Id.

5

Appellant may submit additional 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 that he
sustained a back injury on March 12, 2012 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6