United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
DOBBINS AIR BASE RESERVE FIRE
DEPARTMENT, Marietta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1334
Issued: December 18, 2013

Case Submitted on the Record

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

JURISDICTION
On May 13, 2013 appellant filed a timely appeal of an April 5, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP), concerning denying his traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that his atrial fibrillation was caused or
aggravated by the September 24, 2012 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 11, 2012 appellant, then a 49-year-old firefighter (hazmat technician), filed
an occupational disease claim alleging that on September 24, 2012 he first realized that his atrial
fibrillation had been “aggravated during stand-by operations in the heat.”
By letter dated December 19, 2012, OWCP informed appellant that the evidence was
insufficient to support his claim. It requested clarification as to whether he was filing alleging a
traumatic injury or occupational disease. OWCP advised appellant as to the medical and factual
evidence required to support his claim and gave him 30 days to provide this information.
Appellant responded that he was claiming a traumatic injury occurring on September 24 2012.
He submitted no additional evidence.
By decision dated January 23, 2013, OWCP denied appellant’s claim of traumatic injury.
It then denied his claim on the grounds that fact of incident had not been established.
On January 23, 2013 appellant requested reconsideration and submitted medical and
factual evidence. He described the September 24, 2012 incident. Appellant related that on
September 24, 2012 he was sitting in a fire truck in hot weather and the air conditioning in the
truck was not working. After approximately 35 minutes he felt his heart racing and his right arm
began to hurt. Appellant went to a local emergency room for evaluation and was diagnosed with
atrial fibrillation.
In a September 26, 2012 discharge report from Piedmont Hospital, Michelle Roland, a
registered nurse, diagnosed atrial fibrillation. She instructed appellant to see his primary care
physician to manage his condition.
In a September 28, 2012 return to work form, Dr. Ingrid R. Burton-Hikes, a treating
physician, and Dr. Elsie Morris, a treating physician, noted appellant was seen on
September 28, 2012. On September 24, 2012 appellant was admitted for evaluation and
treatment at the hospital for a sudden onset of atrial fibrillation. The record also contains
undated medical reports noting that he was hospitalized at Piedmont Hospital from September 24
to 26, 2012 for atrial fibrillation.
On October 11, 2012 Dr. Thelsa Pulikkotil, a treating Board-certified internist and
cardiologist, stated that appellant was treated that day for various conditions, including
hypertension, left ventricular hypertrophy, sleep apnea/sleep disorder, anxiety and paroxysmal
ventricular tachycardia. In an October 16, 2012 report, she noted that he was hospitalized in
September 2012 for atrial fibrillation. Dr. Pulikkotil provided findings from physical
examination and diagnostic testing. She related a history over the past few years of heart
palpitations including a recent episode of persistent palpitations.
In a March 6, 2013 duty status report (Form CA-17), Dr. Pulikkotil listed an injury date
of September 24, 2013 and provided a description of how it occurred. She diagnosed
paroxysmal atrial fibrillation and wrote “no” to the question of whether the diagnosed condition
was due to the injury.

2

In a March 6, 2013 report, Dr. Pulikkotil released appellant to light-duty work. She
reported that he was seen that day and treated for chronic conditions of atrial fibrillation,
hypertension, diabetes and obstructive sleep apnea.
In an April 5, 2013 decision, OWCP accepted that the September 24, 2012 incident
occurred as alleged. It denied appellant’s claim on the grounds that the medical evidence was
insufficient to establish that the exposure to high temperature on September 24, 2012 caused or
aggravated the diagnosed atrial fibrillation.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.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. Neither the mere
2

The Board notes that appellant has submitted new evidence with his appeal. However, the Board may only
review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. §§ 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); 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).
3

5 U.S.C. § 8101 et seq.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

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

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

3

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.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.12 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.13
ANALYSIS
Appellant filed a claim alleged that his atrial fibrillation had been caused or aggravated
by sitting in a fire truck on a hot day without air conditioning on September 24, 2012. On
April 5, 2013 OWCP denied his claim on the grounds that the medical evidence did not establish
that the diagnosed condition of atrial fibrillation had been caused or aggravated by the accepted
September 24, 2012 employment incident. The Board finds that appellant has failed to meet his
burden of proof.
None of the medical evidence submitted by appellant contains any opinion discussing
how appellant’s atrial fibrillation was caused or aggravated by accepted the September 24, 2012
employment incident. The September 26, 2012 Piedmont Hospital report,14 September 28, 2012
return to work form, undated letter from Concentra Medical and October 16, 2012 report by
Dr. Pulikkotil all noted that appellant was hospitalized from September 24 to 26, 2012 for
treatment of atrial fibrillation. The record also contains an October 11, 2012 report from
Dr. Pulikkotil noting that appellant was seen that day and providing diagnoses. None of these
reports discuss what caused the atrial fibrillation or even mention that appellant had been sitting
in a hot fire truck on September 24, 2012. Medical evidence that does not offer any opinion

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

The Board also notes that the discharge note was signed by Ms. Roland, a nurse. The Board notes that nurses
are not considered to be physicians as defined under FECA and, thus, their reports are of no probative value. See
B.B., Docket No. 09-1858 (issued April 16, 2010); L.D., 59 ECAB 648 (2008); G.G., 58 ECAB 389 (2007);
David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).

4

regarding the cause of an employee’s condition is of diminished probative value on the issue of
causal relationship.15
The record also contains a March 6, 2013 duty status report from Dr. Pulikkotil releasing
appellant to work with restrictions, noting the history of the September 24, 2012 employment
incident and diagnosing paroxysmal atrial fibrillation. This report is insufficient to support
appellant’s burden of proof as Dr. Pulikkotil negates any causal relationship between the
September 24, 2012 employment incident and his atrial fibrillation.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.16 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed atrial fibrillation was caused or aggravated by the accepted
September 24, 2012 employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that his atrial fibrillation was caused or
aggravated by the accepted September 24, 2012 employment incident.

15

K.W., 59 ECAB 271 (2007); Conard Hightower, 54 ECAB 796 (2003); Michael E. Smith, 50 ECAB
313 (1999).
16

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB
339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 5, 2013 is affirmed.
Issued: December 18, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, JAMES C. BROWN,
JR. FACILITY, Las Vegas, NV, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2059
Issued: June 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 10, 2010 appellant timely appealed the July 12, 2010 merit decision of the
Office of Workers’ Compensation Programs, which denied modification of a previous decision
terminating compensation and medical benefits.
Pursuant to the Federal Employees’
1
Compensation Act 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 the Office properly terminated appellant’s compensation and
medical benefits effective May 14, 2007; and (2) whether appellant has established that he has
any other medical condition causally related to his accepted injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 17, 2006 appellant, then a 54-year-old mail processor, filed a claim (Form
CA-1) for injury to his “middle back” that reportedly occurred on March 7, 2006. He explained
that he had been pushing a cage of mail to another operation. The cage had a bad wheel.
Appellant stated that, when he finished pushing the cage, he felt like he had really overexerted
himself. His back started to feel really tight and his arms felt heavy. Appellant described the
nature of his injury as pain/tightness in back, mid back.
Dr. William S. Kyle, a Board-certified family practitioner, examined appellant on
March 7, 2006 and diagnosed thoracic strain. Appellant informed Dr. Kyle that he was pushing
a large heavy object for a long way down the hallway and felt a little twinge of pain in his
thoracic spine, bilaterally. The pain then slowly progressed to more pain and tightness in the
back. Appellant also informed Dr. Kyle that he felt somewhat weaker than usual in both arms.
There were no abdominal or respiratory complaints and no radiation of pain. Dr. Kyle also noted
there was no prior history of injury to the area. On physical examination, appellant’s spine was
nontender to palpation. X-ray of the spine revealed no fracture or dislocation. Dr. Kyle reported
tenderness and spasm of the musculature bilaterally at T4-T10. He prescribed pain and antiinflammatory medication, as well as a muscle relaxant. Dr. Kyle also placed appellant on work
restrictions and advised him to follow up in a couple days.
Appellant returned for follow up on March 10, 2006, at which time he was seen by
Dr. Cesar A. Estela, a Board-certified physiatrist, who noted that appellant had used a heat pad at
night and had been taking his prescribed medications. He reportedly felt significantly better and
was ready to return to full duty. Physical examination of the thoracic spine did not reveal any
significant tenderness. Dr. Estela also reported full range of motion of the shoulders. He
diagnosed thoracic strain, and advised that appellant had reached maximum medical
improvement and required no further treatment. Dr. Estela released appellant to full duty with
no restrictions and discharged him from his care.
The Office accepted appellant’s March 7, 2006 traumatic injury for sprain of the back,
thoracic region.
On March 27, 2006 appellant sought emergency treatment at the local Department of
Veterans Affairs (VA) medical facility. He complained of left flank pain of two days (“48
hours”) duration. The triage notes indicated no history of injury or trauma to back. Elsewhere in
the March 27, 2006 treatment records there was a notation that appellant’s lumbar back pain
started three days ago, and he reportedly denied having recently injured himself. An x-ray of the
lumbar spine was essentially normal.2 Appellant was diagnosed with lumbar muscle strain and
prescribed Motrin and Vicodin.
Appellant returned to the VA hospital on April 4, 2006 where he was seen by
Dr. Miki M. Crane (Maj.), a Board-certified internist. The treatment notes indicated a history of
2

The film revealed straightened lumbar lordosis, possibly secondary to paraspinal muscle spasm or positioning.
Otherwise, appellant’s vertebral bodies appeared intact with satisfactory anatomic alignment and the disc interspaces
appeared grossly within normal limits.

2

back pain in the left flank area for one and half weeks, as well as a recent visit to the emergency
room. There was also mention of appellant having been diagnosed with a strain a month ago
when he was pushing a heavy object at work. Dr. Crane’s primary diagnosis was backache. She
prescribed various medications and released appellant without limitations. When Dr. Crane saw
appellant again on April 14, 2006 she diagnosed herniated disc at L1-2 on the left. Appellant
had reportedly been unable to work at all. He complained of pain in the left lower back radiating
down the anterior thigh to the left knee. Appellant also reported numbness and tingling in the
left leg. Dr. Crane recommended three days’ bed rest with limited standing, sitting and walking.
A May 3, 2006 lumbar magnetic resonance imaging (MRI) scan revealed bilateral neural
foramina stenosis at L4-5. The MRI scan also showed spinal canal stenosis as well as bilateral
neural foramina stenosis at L5-S1.
Dr. Crane examined appellant again on May 16, 2006 and reviewed his recent lumbar
MRI scan. She diagnosed lumbago and referred appellant for a neurological consultation and
physical therapy. Appellant had a follow-up visit with Dr. Crane on June 27, 2006. She noted
that appellant had recently been seen by Dr. Charles B. Bernick, a Board-certified neurologist,
but his findings were not yet available. Dr. Crane diagnosed lumbar radiculopathy and noted
that appellant was taking Percocet twice daily for his back condition.
In a July 5, 2006 attending physician’s report (Form CA-20), Dr. Crane diagnosed lumbar
radiculopathy, which she attributed to appellant’s March 7, 2006 employment injury. According
to her, appellant’s left flank pain started one month prior to their first appointment when he was
pushing a heavy object at work. Dr. Crane advised that appellant was currently totally disabled
and could possibly return to limited duty on July 31, 2006.
Appellant subsequently filed a claim for wage-loss compensation for the period July 7
to 30, 2006.3 By decision dated October 23, 2006, the Office denied wage-loss compensation
because he had not demonstrated that his diagnosed lumbar condition was causally related to his
March 7, 2006 employment injury.
In a decision dated May 14, 2007, the Office terminated appellant’s wage-loss
compensation and medical benefits.4 It based its decision on the January 29, 2007 report of
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon and Office referral physician, who
reported there were no objective findings referable to appellant’s accepted thoracic strain. As to
appellant’s lumbar condition, Dr. Swartz diagnosed L5-S1 disc herniation, neural foraminal
stenosis at L4-5 and L5-S1, and lumbar sciatic radiculopathy. He indicated that appellant’s
current lumbar condition was unrelated to his March 7, 2006 employment injury. Dr. Swartz
explained that appellant was initially diagnosed with a thoracic strain, which had resolved as of
March 10, 2006. He also noted that the March 27, 2006 emergency department treatment
records indicated that appellant had been experiencing left flank pain for two days, and the
April 4, 2006 follow-up treatment records noted back pain and left flank pain for one and a half
3

Appellant returned to work on July 31, 2006. On August 5, 2006 he accepted a limited-duty assignment as a
modified mail processor.
4

The Office previously issued a notice of proposed termination of benefits.

3

weeks. Dr. Swartz concluded that the low back and sciatic symptoms appeared unrelated to the
claim of March 7, 2006. According to him, appellant reached maximum medical improvement
from his accepted injury on March 10, 2006, and he required no further treatment. However,
appellant remained disabled from his regular mail processor duties as a result of his L5-S1 disc
herniation and left sciatic radiculopathy, which Dr. Swartz reiterated were unrelated to the
March 7, 2006 employment injury.
On May 11, 2008 appellant requested reconsideration and submitted, among other things,
a copy of Dr. Bernick’s June 26, 2006 report. Dr. Bernick indicated that appellant “sustained
injury to his back at work ... in March of this year.” He diagnosed L4 radiculopathy on the left.
Appellant also submitted an April 3, 2008 report from Dr. Crane who stated, in relevant part, that
she continued to follow appellant for “a back injury that occurred at work in 2006.”
The Office denied modification by decision dated June 19, 2008. One year later,
appellant again requested reconsideration. He argued that his lumbar condition did not preexist
his March 2006 employment injury.5 Appellant submitted his military discharge records, various
VA medical records, and an October 1, 1997 preemployment medical examination that revealed
a normal spine on physical examination. The Office again denied modification in a decision
dated October 2, 2009.
Appellant filed his latest request for reconsideration on June 8, 2010. The request was
accompanied by various medical records pertaining to his January 19, 2010 lumbar
decompression and fusion at L4-5 and L5-S1. Appellant’s postoperative diagnoses included
degenerative disc disease at L4-5 and L5-S1, spinal stenosis at L4-5 and L5-S1, annular
abnormalities at L4-5 and L5-S1 and degenerative retrolisthesis at L5-S1.
In a March 3, 2010 report, Dr. Mark B. Kabins, a Board-certified orthopedic surgeon,
indicated that appellant had undergone surgical reconstruction of the lumbar spine. He also
noted that appellant had internal disc disruption. Dr. Kabins stated that the onset of symptoms
emanated following an injury, “per patient history,” in March 2006 while pushing a loaded
container of mail from one location to another. He noted that appellant had permanent work
restrictions of light duty with no repetitive bending, stooping and twisting. Dr. Kabins also
indicated that appellant should change positions as needed and he could not perform repetitive
lifting greater than 20 pounds.
By decision dated July 12, 2010, the Office denied modification.
LEGAL PRECEDENT -- ISSUE 1
Where the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
5

Appellant was under the mistaken impression that Dr. Swartz believed his lumbar condition preexisted the
March 7, 2006 employment injury. Dr. Swartz stated that there was no “evidence that this [was] part of
[appellant’s] claim of March 7[, 2006] or [was] work related.” He did not specifically state that appellant’s lumbar
condition preexisted the March 7, 2006 employment injury.
6

Curtis Hall, 45 ECAB 316 (1994).

4

causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has either ceased or that it is no longer related to the employment.7
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.8 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.9 Once the Office has properly modified or terminated
benefits, the burden of reinstating benefits shifts to the employee.10
ANALYSIS -- ISSUE 1
The Office has accepted appellant’s claim for thoracic sprain only. When he filed his
CA-1 form, appellant claimed injury to his “middle back,” which occurred on March 7, 2006.
Dr. Kyle examined him that same day and diagnosed thoracic strain. When appellant returned
for a follow-up examination on March 10, 2006, Dr. Estela found that his thoracic strain had
resolved. Appellant reportedly felt significantly better and was ready to return to full duty. On
examination, there was no significant tenderness in the thoracic spine and full range of motion in
appellant’s shoulders. Dr. Estela found that appellant reached maximum medical improvement
and required no further treatment. He released appellant to full duty without restriction.
On January 29, 2007 Dr. Swartz examined appellant on behalf of the Office and reported
that there were no objective findings referable to appellant’s accepted thoracic strain. He found
that appellant reached maximum medical improvement from his accepted injury on March 10,
2006 and he required no further treatment. Dr. Swartz also noted that appellant had a lumbar
condition that precluded a return to his regular mail processor duties. However, this lumbar
condition was to appellant’s March 7, 2006 employment injury.
While there are varying opinions as to whether appellant’s current lumbar condition is
causally related to his March 7, 2006 employment injury, there is no contradictory evidence of
an ongoing employment-related thoracic strain. As such, the Board finds that the Office met its
burden to terminate compensation and medical benefits with respect to the only accepted
condition, thoracic sprain. Dr. Swartz’s January 29, 2007 report is well rationalized and
sufficient to meet the Office’s burden. As the evidence of record demonstrates that appellant’s
accepted thoracic sprain has resolved, the Office properly terminated compensation and medical
benefits.

7

Jason C. Armstrong, 40 ECAB 907 (1989).

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

Joseph A. Brown Jr., 55 ECAB 542, 544 n. 5 (2004).

5

LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury.11
ANALYSIS -- ISSUE 2
Dr. Swartz diagnosed L5-S1 disc herniation, neural foraminal stenosis at L4-5 and L5-S1,
and lumbar sciatic radiculopathy. In finding these conditions unrelated to appellant’s March 7,
2006 employment injury, Dr. Swartz noted that appellant’s thoracic sprain resolved on March 10,
2006, and it was not until his March 27, 2006 emergency department visit that he reported
experiencing left flank pain, which at that time was only of two days’ duration. Dr. Swartz also
noted that the April 4, 2006 follow-up treatment records noted back pain and left flank pain for
one and a half weeks. The initial treatment records from Dr. Kyle and Dr. Estela did not
document any lumbar complaints, and appellant’s thoracic complaints had reportedly resolved by
March 10, 2006.
Although Dr. Crane would later attribute appellant’s lumbar condition to the March 7,
2006 employment injury, her July 5, 2006 statement that his complaints started a month prior to
their initial visit is belied by her own April 6, 2006 treatment records where it was reported that
the left flank pain was of one and a half weeks’ duration. She offered no salient explanation for
the almost three-week delay in the onset of appellant’s lumbar complaints. Dr. Crane also has
failed to explain how pushing a heavy object at work either caused or contributed to appellant’s
lumbar condition.
Over time, appellant reported to various other physicians that he injured his back while
pushing a cage of mail in March 2006, and those physicians have reiterated appellant’s stated
history of injury. As in Dr. Kabins’ case, the mere recitation of “per patient history” does not
suffice for purposes of establishing a causal relationship between appellant’s diagnosed lumbar
condition and the March 7, 2006 employment injury. Similarly, Dr. Bernick’s June 26, 2006
notation that appellant “sustained injury to his back at work ... in March of this year” is not
sufficient to establish that his L4 radiculopathy is causally related to the March 7, 2006
employment injury.
Appellant has not established that his lumbar condition and January 19, 2010 surgery are
causally related to the March 7, 2006 employment injury.

11

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.

6

CONCLUSION
The Office properly terminated medical benefits and entitlement to future wage-loss
compensation effective May 14, 2007.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 21, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
PEACE CORPS, Cameroon, Employer
__________________________________________

)
)
)
)
)
)
)

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

Docket No. 08-2324
Issued: February 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 25, 2008 appellant filed a timely appeal from an August 7, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration on the grounds that it was untimely and failed to demonstrate clear evidence of
error. Because more than one year has elapsed from the last merit decision dated May 19, 2006
and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
This is the third appeal before the Board.1 On August 26, 2003 the Board remanded the
case because the Office’s delay in issuing an April 1, 2003 decision, denying appellant’s
August 21, 2002 request for reconsideration which precluded his right to a merit review before
the Board. By decision dated April 26, 2005, the Board affirmed a January 22, 2004 Office
decision which denied appellant’s claim for disability between July 2, 1995 and February 18,
2000 due to his accepted tropical pulmonary eosinophilia, respiratory wheezes and extrinsic
asthma. The law and the facts of the previous Board decisions are incorporated herein by
reference.
By merit decision dated May 19, 2006, the Office again denied appellant’s claim for
disability between July 2, 1995 and February 18, 2000 due to his accepted tropical pulmonary
eosinophilia, respiratory wheezes and extrinsic asthma.
In an undated letter received by the Office on December 12, 2007, appellant requested
reconsideration and submitted additional evidence. He argued that a May 3, 2000 report from
Dr. Andreas Schlanstein, previously of record, established that he was totally disabled in
February 1996 due to his accepted conditions. Dr. Schlanstein stated that appellant was
hospitalized in 1996 for chronic obstructive bronchitis. He opined that appellant’s work in the
Peace Corps led to an exacerbation of his condition and an inability to work. Dr. Schlanstein
stated that appellant could not work in a job with exposure to higher than normal levels of dust
pollution.
In a January 17, 2007 report, Dr. Horst Huckauf, a physician specializing in lung and
bronchial medicine, provided an assessment of appellant’s respiratory impairment causally
related to his accepted lung conditions. Dr. Huckauf stated that appellant had experienced
progressive dyspnea (shortness of breath) episodes since his discharge from the Peace Corps in
July 1995. Disabling dyspneic episodes occurred in response to triggers such as dust and molds.
He advised that appellant reached maximum medical improvement in 2001 to 2002 with a
progressive decline thereafter. Dr. Huckauf indicated that appellant was able to work only in a
controlled, trigger-free environment. In a July 10, 2007 report, he discussed appellant’s lung
impairment. In a September 26, 2007 report, Dr. Huckauf stated that appellant had been disabled
since 1994 from his position as a woodworker or from any position in a similar environment and
that his lung condition had worsened over time.
In an April 2, 2007 report, Dr. Vijay K. Mahajan, a Board-certified pulmonologist,
reviewed appellant’s medical history and stated that appellant developed bronchial asthma while
serving in the Peace Corps in Cameroon between 1993 and 1995.2 He provided a respiratory
impairment rating. Dr. Mahajan opined that appellant should not be employed in an occupation
1

56 ECAB 503 (2005). See Docket No. 03-1439 (order remanding case issued August 26, 2003). On March 1,
1999 appellant, then a 47-year-old Peace Corps volunteer, filed an occupational disease claim alleging that he
developed a lung condition while working in Cameroon. The Office accepted his claim for tropical pulmonary
eosinophilia, respiratory wheezes and extrinsic asthma.
2

Dr. Mahajan did not personally examine appellant.

2

with exposure to dust, fungi or other irritants. He did not discuss any specific periods of
disability.
By decision dated August 7, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of error
in the last merit decision dated May 19, 2006.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3 As
one such limitation, 20 C.F.R. § 10.607 provides that an application for reconsideration must be
sent within one year of the date of the Office decision for which review is sought. It will
consider an untimely application only if the application demonstrates clear evidence on the part
of the Office in its most recent merit decision. The application must establish, on its face, that
such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which, on its face, shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized medical report which, if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the Director’s own motion.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.6 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.7 To show clear evidence of error, the evidence submitted not only must
be of sufficient probative value to create a conflict in medical opinion or establish a clear
procedural error, but must be of sufficient probative value to prima facie shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of the
Office’s decision.8 The Board makes an independent determination of whether a claimant has

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).

6

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004).

7

Darletha Coleman, 55 ECAB 143 (2003).

8

Id.

3

submitted clear evidence of error on the part of the Office such that the Office abused its
discretion in denying merit review in the face of such evidence.9
ANALYSIS
The merits of appellant’s case are not before the Board. His request for reconsideration
was received by the Office on December 12, 2007, more than one year after the May 19, 2006
merit decision. Therefore it was not timely. The issue to be determined is whether appellant
demonstrated clear evidence of error in his untimely request for reconsideration.
The record reflects that the Office’s May 19, 2006 merit decision denied appellant’s
claim for disability between July 2, 1995 and February 18, 2000 on the grounds that the medical
evidence did not establish that his disability was causally related to his accepted work-related
tropical pulmonary eosinophilia, respiratory wheezes and extrinsic asthma.
With his
December 12, 2007 request for reconsideration, appellant submitted reports from Dr. Huckauf
who provided an assessment of his lung impairment and indicated that he was able to work only
in a controlled, trigger-free environment. Dr. Huckauf stated that appellant had been disabled
since 1994 from his position as a woodworker and his lung condition had worsened over time.
Evidence which does not raise a substantial question concerning the correctness of the Office’s
decision is insufficient to establish clear evidence of error. He did not address the issue of
appellant’s disability from any type of work between July 2, 1995 and February 18, 2000 due to
his accepted tropical pulmonary eosinophilia, respiratory wheezes and extrinsic asthma.
Therefore, Dr. Huckauf’s reports do not raise a substantial question as to the correctness of the
Office’s May 19, 2006 merit decision or demonstrate clear evidence of error.
On April 2, 2007 Dr. Mahajan provided a lung impairment rating and stated that
appellant should not be employed in any occupation with exposure to dust or other irritants. He
did not address the issue of whether appellant was totally disabled for work between July 2, 1995
and February 18, 2000 due to his accepted pulmonary conditions. Therefore, Dr. Mahajan’s
report does not raise a substantial question as to the correctness of the Office’s May 19, 2006
merit decision or demonstrate clear evidence of error.
Appellant asserted that Dr. Schlanstein’s May 3, 2000 report, previously of record,
established his claim for disability. In this report, Dr. Schlanstein stated that appellant was
hospitalized in 1996 for chronic obstructive bronchitis. Appellant’s work in the Peace Corps led
to an exacerbation of his condition and an inability to work in a job with exposure to higher than
normal levels of dust pollution. However, Dr. Schlanstein did not address the issue of whether
appellant was totally disabled from any type of work between July 2, 1995 and February 18,
2000 due to his accepted tropical pulmonary eosinophilia, respiratory wheezes and extrinsic
asthma. Therefore, Dr. Schlanstein’s report does not raise a substantial question as to the
correctness of the Office’s May 19, 2006 merit decision or demonstrate clear evidence of error.

9

Pete F. Dorso, 52 ECAB 424 (2001).

4

Because appellant’s untimely request for reconsideration did not establish clear evidence
of error in the May 19, 2006 merit decision, the Office properly denied his request for
reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to demonstrate clear evidence of error in the May 19,
2006 Office merit decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 7, 2008 is affirmed.
Issued: February 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEW YORK HARBOR HEALTHCARE
SYSTEM, Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1366
Issued: February 27, 2019

Case Submitted on the Record

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

JURISDICTION
On July 2, 2018 appellant, through counsel, filed a timely appeal from a January 17, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left elbow
condition causally related to the accepted April 3, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as presented
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On April 9, 2014 appellant, then a 31-year-old staff pharmacist, filed a traumatic injury
claim (Form CA-1) alleging that on April 3, 2014 he experienced numbness, tingling, a “pins and
needles” sensation, and pain in his left elbow, radiating down to his hand and up to his shoulder
when a pharmacy technician struck his left elbow with a medication cassette container while in the
performance of his work duties.
In medical records dated May 5 through July 21, 2014, Dr. Barry G. Fisher, an attending
orthopedic surgeon, noted a history that on April 3, 2014 appellant struck his left elbow which
caused numbness and tingling. He reviewed diagnostic test results, reported findings on physical
examination, and diagnosed the presence of left ulnar nerve pathology, most likely due to the direct
injury in the left elbow area.
In a medical report dated July 16, 2014, Dr. Alissa J. Burge, a Board-certified radiologist,
noted that a magnetic resonance imaging scan of appellant’s left elbow revealed mild tendinosis
of the common extensor origin, edema in the biceps muscle which was nonspecific and may reflect
muscle strain, and nonspecific subcutaneous edema over the posteromedial aspect of the elbow.
No fracture was demonstrated.
In reports dated August 16, 27, and 29, 2014, appellant’s physical therapists and licensed
acupuncturist noted appellant’s history of injury, discussed physical examination findings, and
addressed the treatment of his left elbow.
By development letter dated September 19, 2014, OWCP indicated that when appellant’s
claim was received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, based on these criteria and because the employing establishment had not controverted
the claim, payment of a limited amount of medical expenses was administratively approved. It
stated that it had reopened the claim for consideration because the medical bills had exceeded
$1,500.00. OWCP informed appellant of the type of medical evidence necessary to establish his
claim and afforded him 30 days to submit the necessary evidence.
In further reports dated September 3 to 22, 2014, appellant’s physical therapist addressed
the treatment of appellant’s left elbow pain.

3
Docket No. 16-1180 (issued October 26, 2016); petition for recon. denied, Docket No. 16-1180 (issued
May 25, 2017).

2

In a report with a partial date of October 6th, received by OWCP on October 10, 2014,
Dr. Fisher discussed findings on examination of appellant’s left elbow.
By decision dated October 23, 2014, OWCP denied appellant’s traumatic injury claim. It
accepted that the April 3, 2014 employment incident occurred as alleged, but denied his claim
because the medical evidence of record did not contain a rationalized medical opinion relating his
diagnosed left elbow conditions to the accepted work incident.
OWCP subsequently received an October 14, 2014 report of Dr. Itzhak C. Haimovic, a
Board-certified neurologist. Dr. Haimovic related a history of the April 3, 2014 employment
incident, noted his examination of appellant, and diagnosed left ulnar neuropathy, slight weakness
in the left ulnar nerve, and possible cervical radiculopathy.
On October 12, 2015 appellant, through counsel, requested reconsideration of OWCP’s
October 23, 2014 decision. Counsel cited Board precedent and asserted that the evidence of record
demonstrated that appellant sustained injuries and conditions causally related to the accepted
April 3, 2014 employment incident. He submitted a report dated August 31, 2015 from Dr. Fisher,
who diagnosed lateral epicondylitis with ulnar radiculopathy and opined that appellant’s injury
was a direct result of the April 3, 2014 employment incident.
In a report dated September 2, 2015, Dr. Charlene M. Scheim, a neurologist, diagnosed
status post left elbow trauma with left ulnar traumatic mononeuropathy and found that appellant’s
injuries were causally related to the accepted April 3, 2014 employment-related incident. She
concluded that he was permanently partially disabled as a result of his injuries.
By decision dated January 7, 2016, OWCP denied modification of its October 23, 2014
decision, finding that the medical evidence submitted did not contain a rationalized medical
opinion explaining how the accepted April 3, 2014 employment incident caused or aggravated
appellant’s diagnosed left elbow conditions.
On May 11, 2016 appellant, through counsel, appealed to the Board. By decision dated
October 26, 2016, the Board affirmed OWCP’s January 7, 2016 decision, finding that appellant
had not met his burden of proof to establish a left elbow condition causally related to the accepted
April 3, 2014 employment incident.4
On October 19, 2017 appellant, through counsel, requested reconsideration with OWCP.
Counsel again cited Board precedent and contended that the evidence of record established that
appellant sustained injuries causally related to the accepted April 3, 2014 work incident. He
asserted that an accompanying letter dated February 15, 2017 from Dr. Scheim provided a
rationalized medical opinion explaining causal relationship between appellant’s diagnosed
conditions and the accepted employment incident.
In the February 15, 2017 letter, Dr. Scheim referenced her September 2, 2015 report and
clarified that the direct trauma of a medication container striking appellant’s left elbow where the
ulnar nerve passed, caused direct injury to the ulnar nerve and thereby caused left ulnar traumatic
4

Id.

3

mononeuropathy. She again opined that his left elbow and left ulnar nerve injuries were causally
related to the accepted April 3, 2014 employment incident. Dr. Scheim also reiterated her prior
opinion that appellant was permanently partially disabled as a result of his injuries.
By decision dated January 17, 2018, OWCP reviewed the merits of appellant’s claim, but
denied modification of its January 7, 2016 decision. It found that Dr. Scheim’s February 15, 2017
report was insufficient to establish the claim because she did not provide medical rationale
explaining how the accepted April 3, 2014 employment incident caused his left elbow ulnar
traumatic neuropathy.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, 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. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.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. There
are two components involved in establishing 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. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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.8 This medical opinion must include an accurate
history of the employee’s employment injury and must explain how the condition is related to the
injury. The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested, and the medical rationale expressed in support
of the physician’s opinion.9

5

Supra note 2.

6

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

7

A.D., id.; T.H., 59 ECAB 388 (2008).

8

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

9

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left elbow
condition causally related to the accepted April 3, 2014 employment incident.
OWCP accepted that the April 3, 2014 employment incident occurred as alleged. The issue
is whether appellant established that the incident caused a left elbow condition. By decision dated
October 26, 2016, the Board affirmed OWCP’s denial of his claim. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.10 The
Board will therefore not review the evidence addressed in the prior appeal.
While Dr. Scheim, in a report dated February 15, 2017, clarified her September 2, 2015
opinion on causal relationship, noting that the direct trauma of a medication container striking
appellant’s left elbow where the ulnar nerve passed, caused direct injury to the ulnar nerve and
thereby caused left ulnar traumatic mononeuropathy and permanent partial disability, she still did
not sufficiently explain how the accepted April 3, 2014 employment incident caused or aggravated
his left elbow condition and resultant disability.11 Thus, the Board finds that Dr. Scheim’s report
is insufficient to establish appellant’s claim.
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a left elbow condition causally related to the April 3, 2014 employment
incident. Appellant therefore has not met his burden of proof.
On appeal, counsel cites Board precedent and contends that evidence and argument
contained in appellant’s request for reconsideration establishes that he sustained disabling injuries
and conditions causally related to the April 3, 2014 employment incident. For the reasons stated
above, the Board finds that the medical evidence of record is insufficient to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left elbow
condition causally related to the accepted April 3, 2014 employment incident.

10

See E.L., 16-0635 (issue November 7, 2016); R.L., Docket No. 15-1010 (issued July 21, 2015). See also A.P.,
Docket No. 14-1228 (issued October 15, 2014).
11
See E.C., Docket No. 17-0902 (issued March 9, 2018) (medical reports without adequate rationale on causal
relationship are of diminished probative value and do not meet an employee’s burden of proof).

5

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 27, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
FREMONT NATIONAL FOREST,
Lakeview, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Norman R. McNulty, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-198
Issued: September 21, 2009

Case Submitted on the Record

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

JURISDICTION
On October 27, 2008 appellant filed a timely appeal from a July 29, 2008 decision of the
Office of Workers’ Compensation Programs denying his claim for a recurrence of disability.
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 recurrences of disability
commencing on June 24, 2005 causally related to accepted chronic thrombophlebitis of both
legs.
On appeal, appellant, through his attorney, asserted that the Office erred by relying on the
opinion of Dr. Stephen Thomas, a Board-certified orthopedic surgeon, and a second opinion
physician, as his reports were internally inconsistent. Appellant contended that the opinions of
his attending physicians were sufficient to establish that the accepted conditions totally disabled
him for work beginning on June 24, 2005.

FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
March 10, 2000,1 the Board reversed an August 21, 1997 decision of the Office denying
appellant’s claim for intermittent periods of disability. The law and the facts of the case as set
forth in the Board’s prior decision are incorporated by reference.
The Office accepted that on July 25, 1978, appellant, then a 28-year-old forestry
technician, sustained a right knee strain. It subsequently accepted a strain of the right Achilles
tendon, right knee instability, a possible torn right medial meniscus, post-traumatic osteoarthritis
and septic arthritis of the right knee. Appellant developed chronic thrombophlebitis with deep
venous thrombosis of both legs on or before May 8, 2002.2
Appellant underwent February 1984 and May 1994 right knee arthroscopies.
Dr. Kenneth T. Heaton, an attending osteopathic physician, Board-certified in orthopedic
surgery, performed a total right knee replacement on November 8, 2002, authorized by the
Office. Appellant returned to part-time light-duty work in April 2003 as a modified forestry
technician, performing sedentary clerical duties. Dr. C. Scott Graham, an attending osteopathic
physician, Board-certified in family practice, restricted him to working four hours a day, keeping
his legs elevated. Appellant increased his schedule to eight hours a day as of September 2003.
In a July 7, 2004 report, Dr. Graham noted that prescription anticoagulants to treat
chronic deep venous thrombosis made it unsafe for appellant to take most anti-inflammatory
drugs needed to treat his severe right knee arthritis. Appellant had good results with Bextra, a
prescription anti-inflammatory. In a January 25, 2005 report, Dr. Graham stated that he was
finding it increasingly difficult to work because his chronic vascular disease and osteoarthritis
had “caught up to him.”
In a March 18, 2005 report, Dr. Heaton stated that appellant’s thrombophlebitis, lower
extremity edema and right knee osteoarthritis and knee replacement made it “very difficult for
him to meet the physical demands required.” Appellant cooperated with two years of treatment
to try to rehabilitate his right knee, but his condition did not improve. Dr. Heaton opined that he
was a “candidate for medical disability.”
In an April 25, 2005 report, Dr. Graham explained that appellant could not sit or stand for
prolonged periods due to chronic deep venous thrombosis in both legs. Also, appellant had
difficulty walking outdoors over uneven surfaces.
Appellant retired from the employing establishment effective June 24, 2005.3

1

51 ECAB 355 ( 2000).

2

In July 2002, the Office doubled appellant’s five accepted lower extremity claims under File No. xxxxxx852.

3

In a November 22, 2005 decision, the Office awarded appellant a 13 percent schedule award for permanent
impairment of the right lower extremity. Appellant received a previous schedule award under another claim for a 30
percent impairment of the right lower extremity, for a total 43 percent impairment.

2

On February 6, 2006 appellant claimed a recurrence of disability commencing
June 24, 2005. He asserted that the accepted thrombophlebitis and knee arthritis worsened such
that he was no longer able to perform his light-duty position. Appellant submitted chart notes
from Dr. Graham dated from November 2005 to May 2006, noting continuing edema in both
legs with skin changes.
By decision dated November 16, 2006, the Office denied the claim for recurrence of
disability on the grounds that causal relationship was not established. It found that appellant’s
physicians did not support a worsening of the accepted conditions as alleged.
Appellant requested a telephonic oral hearing, held on March 12, 2007. At the hearing,
he contended that Drs. Graham and Heaton both supported a worsening of the accepted
conditions.
In an April 9, 2007 report, Dr. Graham stated that appellant was no longer able to work as
of June 2005 due to worsening right knee arthritis caused by the arthroplasty. The knee had
deteriorated because Bextra was withdrawn from the market and that appellant could not tolerate
other anti-inflammatories because of prescribed anticoagulants.
By decision dated and finalized May 29, 2007, an Office hearing representative set aside
the November 16, 2006 decision and directed referral to a second opinion examiner. The Office
referred appellant, the medial record and a statement of accepted facts to Dr. Thomas for a
second opinion examination.
In an August 9, 2007 report, Dr. Thomas reviewed the medical record and a statement of
accepted facts provided to him by the Office. On examination, he observed edema of both lower
extremities, a right knee effusion and limited-right knee flexion. Dr. Thomas noted a right-sided
limp and that appellant could not heel walk. He diagnosed right knee osteoarthritis
postarthroplasty and bilateral chronic thrombophlebitis. Dr. Thomas explained that it was
“difficult, if not impossible” for appellant to work as he must elevate his legs four to six hours a
day due to thrombophlebitis. He opined that appellant’s condition had continued but not
worsened.
The Office requested that Dr. Thomas clarify his opinion regarding whether appellant
sustained a recurrence of disability. In a November 13, 2007 supplemental report, Dr. Thomas
stated that appellant had no objective findings on examination and had not experienced an
objective change in his condition. Appellant had increased pain in 2005 after Bextra was no
longer available.
By decision dated February 25, 2008, the Office denied appellant’s claim for recurrence
of disability on the grounds that he had not established a worsening of the accepted conditions as
of June 24, 2005. It found the opinion of Dr. Thomas to be the weight of the medical evidence.
Appellant requested a telephonic hearing, held on June 5, 2008. At the hearing, he
asserted that his accepted osteoarthritis and thrombophlebitis had worsened by later June 2005
such that he was no longer able to perform his assigned light duties. Appellant found it very
difficult to keep his legs elevated for four to six hours each day while at work. He asserted that
the medical evidence of record supported a total disability for work beginning in June 2005.
3

Counsel noted that Dr. Thomas contradicted himself by stating both that appellant had swelling
in both legs and that there were no objective clinical findings.
By decision dated and finalized July 29, 2008, an Office hearing representative affirmed
the February 25, 2008 decision, finding that appellant had not established that he sustained a
recurrence of disability commencing June 24, 2005, based on Dr. Thomas’ opinion as the weight
of the medical evidence.
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”4 When an employee, who is
disabled from the job he or she held when injured on account of employment-related residuals,
returns to a light-duty position or the medical evidence establishes that the employee can perform
the light-duty position, the employee has the burden to establish by the weight of the reliable,
probative and substantial evidence, a recurrence of total disability and to show that he or she
cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty job requirements.5 An award of compensation may not be based on surmise, conjecture or
speculation or on appellant’s unsupported belief of causal relation.6
ANALYSIS
The Office accepted that appellant sustained a right knee strain, right Achilles tendon
strain, right knee instability, a possible torn right medial meniscus, post-traumatic osteoarthritis
and septic arthritis of the right knee and chronic thrombophlebitis of both. Appellant underwent
two right knee surgeries, followed by total arthroplasty in November 2002. Following surgery,
he returned to light-duty work. On February 6, 2006 appellant claimed a recurrence of disability
commencing June 24, 2005. He asserted that the accepted right knee arthritis and bilateral
thrombophlebitis had worsened such that he could no longer perform his light-duty job.
Appellant must establish either a spontaneous change in the accepted lower extremity conditions
or in his assigned light duties such that he could no longer perform his job requirements.7 He has
the burden of providing rationalized medical evidence to establish the causal relationship
asserted.8
4

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.b(a)(1)
(May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
5

Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see also Terry R. Hedman,
38 ECAB 222 (1986).
6

Alfredo Rodriguez, 47 ECAB 437 (1996).

7

Carl G. Graci, supra note 5.

8

Ricky S. Storms, 52 ECAB 349 (2001).

4

Appellant submitted several reports regarding a worsening of the accepted conditions.
Dr. Graham, an attending osteopathic physician, Board-certified in family practice, stated on
January 25, 2005 that appellant’s thrombophlebitis and osteoarthritis “caught up to him,” making
it difficult for him to work. Dr. Heaton, an attending Board-certified orthopedic surgeon,
recommended on March 18, 2005 report that appellant pursue disability retirement as the
thrombophlebitis, edema, right knee osteoarthritis and status postarthroplasty made it “very
difficult” for him to work. On April 25, 2005 Dr. Graham found that appellant could not sit or
stand for prolonged periods. In an April 9, 2007 report, he explained that after Bextra was no
longer available, his right knee arthritis worsened such that he could no longer work as of
June 2005.
The Office obtained a second opinion from Dr. Thomas, a Board-certified orthopedic
surgeon. In August 9 and November 13, 2007 reports, Dr. Thomas opined that appellant did not
sustain a recurrence of disability as his condition had not worsened. Although he observed right
knee abnormalities, an altered gait and bilateral lower extremity edema, Dr. Thomas stated that
appellant had no objective findings on examination. The Office denied appellant’s claim for
recurrence of disability by July 29, 2008 decision, based on Dr. Thomas’ opinion as the weight
of the medical evidence.
The Board finds that there is a conflict of medical opinion between Dr. Graham, for
appellant, and Dr. Thomas, for the government, regarding whether appellant’s accepted
conditions worsened such that he became totally disabled for work on June 24, 2005. Section
8123 of the Federal Employees’ Compensation Act provides that, if there is disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician, who shall make an examination.9 The
case will be remanded to the Office to refer appellant, a statement of accepted facts and the
medical record to an appropriate specialist or specialists to resolve the conflict of opinion.
Following this and any other development deemed necessary, the Office shall issue an
appropriate decision in the case.
CONCLUSION
The Board finds that the case is not in posture for a decision due to a conflict of medical
evidence. The case will be remanded to the Office for appropriate further development.

9

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 29, 2008 is set aside and the case remanded for further
development consistent with this decision and order.
Issued: September 21, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
NEWARK INTERNATIONAL AIRPORT,
Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-800
Issued: October 16, 2009

Case Submitted on the Record

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

JURISDICTION

On February 2, 2009 appellant filed a timely appeal from an August 1, 2008 decision of
the Office of Workers’ Compensation Programs terminating his wage-loss compensation and
medical benefits and a December 17, 2008 decision denying modification of the August 1, 2008
decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective August 31, 2008; and (2) whether
appellant met his burden of proof to establish that he had any employment-related disability or
medical condition after August 31, 2008 causally related to his employment injury.
On appeal, appellant’s attorney argues that the medical evidence is not sufficient to
establish that his work-related medical conditions and disability have resolved.

FACTUAL HISTORY
On December 20, 2003 appellant, then a 63-year-old transportation security screener,
filed a traumatic injury claim alleging that he twisted his foot and fell to the floor, injuring his
right knee and neck. The Office accepted his claim for a right knee and left ankle sprain. It later
accepted a tear in the body and horn of the right medial meniscus and right chondromalacia.
Effective February 5, 2004, appellant was placed on the periodic compensation rolls to receive
compensation for temporary total disability.
In notes dated March 18, 2004,
Dr. Gregory Montalbano, an attending Board-certified orthopedic surgeon, stated that his left
ankle sprain had resolved, but he continued to have right knee pain. On May 26, 2004 appellant
underwent right knee surgery performed by Dr. Montalbano, to repair a medial and lateral
meniscus tear, a posterior cruciate ligament sprain and chondromalacia. On April 19, 2006 he
underwent left ankle arthroscopic surgery consisting of debridement, synovectomy,
chondroplasty, removal of a loose body, drilling of osteochondral lesion and excision, tibia
exostosis. Following the left ankle surgery, Dr. Montalbano found continuing right knee and left
ankle pain.
In a May 25, 2007 report, Dr. Robert Israel, a Board-certified orthopedic surgeon and an
Office referral physician, reviewed appellant’s medical history and provided findings on physical
examination. He stated that the accepted right knee and left ankle conditions had completely
resolved and the physical examination was within normal limits. There were no objective
findings of continuing disability. Dr. Israel indicated that appellant could perform his regular
job.
By letter dated August 24, 2007, the Office advised appellant of its proposed termination
of his wage-loss compensation and medical benefits on the grounds that the weight of the
medical evidence established that he had no remaining disability or medical condition causally
related to his December 20, 2003 employment injury. In response, appellant submitted a
September 4, 2007 report in which Dr. Montalbano stated that he continued to be symptomatic
from his accepted right knee and left ankle conditions and was unable to work.
On October 16, 2007 the Office determined that there was a conflict in the medical
opinion evidence between Drs. Montalbano and Israel. It referred appellant, together with a
statement of accepted facts, a list of questions and the entire case file, to Dr. Stanley Soren, a
Board-certified orthopedic surgeon.
In an October 29, 2007 report, Dr. Soren reviewed the medical history, including
diagnostic tests. He provided detailed findings on physical examination. Appellant walked with
a cane in his left hand but with a normal gait. There was no indication of any antalgic gait or
favoring one extremity over the other. Appellant could stand on his heels and toes without
difficulty. His right knee had well-healed arthroscopic incisions with no erythema, portal
tenderness, inflammation or drainage. There was mild tenderness relative to the medial joint
line. Range of motion was normal. Cruciate and collateral ligaments were intact bilaterally.
McMurray, Apley, Drawer and Lachman signs were negative in both knees. There was no
instability. Quadriceps strength was good bilaterally. Appellant’s left ankle had well-healed
arthroscopic incisions with no erythema or drainage. There was no tenderness anywhere. There
was good dorsalis pedis pulse, popliteal pulse and femoral pulse. There was no gross deformity

2

or instability. Neurovascular status, temperature, and color were normal. The Achilles tendon
was nontender, intact and had no indication of any inflammation. There was minimal restricted
dorsiflexion and plantar flexion in the left ankle. Dr. Soren diagnosed a contusion of the right
knee, right knee medial and lateral meniscal tear with posterior cruciate ligament sprain and
chondromalacia, status post arthroscopic surgery, left ankle osteochondral lesion, synovitis, tibial
exostosis with impingement, loose body and left ankle sprain, status post arthroscopic surgery
and marked overweight status.1 He stated that there had been good healing and recovery from
appellant’s right knee and left ankle surgeries. Appellant’s residual complaints were due to
degenerative changes and chronic weight overload to the weight bearing joints of the knee and
ankle. Dr. Soren stated that there was no further need for medical treatment of the accepted right
knee and left ankle conditions. He recommended a medically supervised weight reduction
program to reduce the pressure on the knee and ankle which had produced degenerative changes
in the joints and appellant’s current symptomatology.
In a December 27, 2007 report, Dr. Montalbano reviewed the medical history and
provided findings on physical examination. He stated that appellant’s right knee and left ankle
symptoms had never subsided and he remained totally disabled for work. Dr. Montalbano stated
that appellant had a prolonged course of rehabilitation following his right knee injury and
surgery.
Appellant continued to have pain, swelling, and episodes of instability.
Dr. Montalbano recommended continued medical treatment. He noted that the right knee partial
meniscectomy resulted in loss of cushioning tissue. Appellant continued to have left ankle pain
and used a cane to arise from a seated position and to walk. His surgery did not replace lost
cartilage and so it was not corrective but only helped to alleviate and better control his
symptoms. Appellant would likely continue to experience left ankle pain. In reports dated
January 28 and July 10, 2008, Dr. Montalbano continued to state that his right knee and left
ankle were symptomatic, appellant needed continued medical treatment and he was disabled for
work.
By decision dated August 1, 2008, the Office terminated appellant’s wage-loss
compensation and medical benefits effective August 31, 2008 on the grounds that the weight of
the medical evidence established that he had no continuing disability or medical condition
causally related to his December 20, 2003 employment-related right knee and left ankle
conditions.
Appellant requested reconsideration and submitted additional medical evidence. In a
September 18, 2008 report, Dr. Montalbano explained his disagreement with Dr. Israel’s report.
He opined that appellant had structural/mechanical problems in his right knee and left ankle
related to the December 20, 2003 employment injury, which caused his symptoms and disability.
By decision dated December 17, 2008, the Office denied modification of the August 1,
2008 decision.

1

Dr. Soren reported that appellant was six feet tall and weighed 285 pounds.

3

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that require further medical treatment.5
Section 8123(a) of the Federal Employees’ Compensation Act provides that, “if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary [of Labor] shall appoint a third physician who shall
make an examination.”6 Where a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.
ANALYSIS -- ISSUE 1
Appellant’s claim for an injury on December 20, 2003 was accepted for a right knee and
left ankle sprain, a tear in the body and horn of the right medial meniscus and right
chondromalacia. Dr. Montalbano found continuing work-related disability. Dr. Israel found no
residual disability or medical condition. The Office properly determined that there was a conflict
in the medical opinion evidence. It referred appellant, together with a statement of accepted
facts, a list of questions and the entire case file, to Dr. Soren for an impartial medical specialist
examination to resolve the conflict.
Dr. Soren provided a comprehensive report dated October 27, 2007. He was provided
with appellant’s case file and a statement of accepted facts. Dr. Soren reviewed appellant’s
medical history, including diagnostic tests, and provided detailed findings on physical
examination. Appellant walked with a cane in his left hand but with a normal gait. There was
no indication of any antalgic or favoring one extremity over the other. Appellant could stand on
his heels and toes without difficulty. His right knee had well-healed arthroscopic incisions with
no erythema, portal tenderness, inflammation or drainage. There was mild tenderness relative to
the medial joint line. Cruciate and collateral ligaments were intact bilaterally. McMurray,
Apley, Drawer and Lachman signs were negative in both knees. There was no instability.
2

I.J. 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
3

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Anna M. Blaine, 26 ECAB 351 (1975).

4

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); Larry Warner, 43 ECAB 1027 (1992).

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).

4

Quadriceps strength was good bilaterally. Appellant’s left ankle had well-healed arthroscopic
incisions with no erythema or drainage. There was no tenderness anywhere. There was good
dorsalis pedis pulse, popliteal pulse and femoral pulse. There was no gross deformity or
instability. Neurovascular status, temperature and color were normal. The Achilles tendon was
nontender, intact and had no indication of any inflammation. There was minimal restricted
dorsiflexion and plantar flexion in the left ankle. Dr. Soren diagnosed a contusion of the right
knee, right knee medial and lateral meniscal tear with posterior cruciate ligament sprain and
chondromalacia, status post arthroscopic surgery, left ankle osteochondral lesion, synovitis, tibial
exostosis with impingement, loose body and left ankle sprain, status post arthroscopic surgery
and marked overweight status. He stated that there had been good healing and recovery from the
right knee and left ankle surgeries. Appellant’s residual complaints were due to chronic weight
overload to the weight bearing joints of the knee and ankle and degenerative changes. Dr. Soren
stated that there was no further need for medical treatment of the accepted conditions. He
recommended a weight reduction program to reduce the pressure on the knee and ankle which
had caused degenerative changes in the joints and appellant’s current symptomatology.
The report of Dr. Soren is based upon a complete and accurate factual and medical
background and detailed findings on physical examination. He is a Board-certified orthopedic
surgeon, an appropriate field for evaluating appellant’s right knee and left ankle conditions. The
Board finds that Dr. Soren’s thorough and well-rationalized report established that appellant had
no continuing disability or medical condition causally related to his December 20, 2003 accepted
right knee and left ankle conditions. Accordingly, the Office met its burden of proof in
terminating appellant’s wage-loss compensation and medical benefits effective August 31, 2008,
based on the medical opinion of Dr. Soren that the accepted right knee and left ankle conditions
had resolved.
On appeal, appellant argues that the Office failed to properly develop the medical
evidence and to accept all injury-related conditions. However, it referred him for both a second
opinion and an impartial medical specialist examination. Dr. Israel was provided with copies of
medical records and Dr. Soren received the entire file. Both physicians were asked to provide
diagnoses. Dr. Soren found residuals and continuing symptoms but opined that these were
caused by degenerative changes due to weight and not to the accepted right knee and left ankle
conditions. Therefore, this argument is not persuasive. Appellant asserts that the Office
improperly referred him for a second opinion examination and a referee examination. The Act
states that, “An employee shall submit to examination by a medical officer of the United States,
or by a physician designated or approved by the Secretary of Labor, after the injury and as
frequently and at the times and places as may be reasonably required.”7 It was reasonable for the
Office to refer appellant to Dr. Israel in order to more fully determine the nature and extent of his
work-related disability. As there was a conflict in opinion between Dr. Montalbano and
Dr. Israel, the Office properly referred him to Dr. Soren for an impartial medical specialist
examination.
Appellant argues that Dr. Israel’s medical opinion was not sufficient to create a conflict
with Dr. Montalbano. He asserts that Dr. Israel’s report predated the Office’s August 1, 2008
7

5 U.S.C. § 8123(a).

5

termination decision by 15 months, was superficial and inconclusive, failed to note evidence of
continuing work-related disability and lacked sufficient medical rationale. However, the notice
of proposed termination of compensation and medical benefits was issued only three months
following Dr. Israel’s examination. Dr. Soren’s examination took place only five months after
that of Dr. Israel. Appellant argues that Dr. Israel did not carefully review the medical evidence
because he noted two surgical portholes instead of three and failed to detect muscle atrophy. He
stated that Dr. Israel reported that he had a normal gait when he was unable to walk without a
cane. The record reflects that Dr. Israel reviewed Dr. Montalbano’s reports but, at the time of
Dr. Israel’s examination, he found no evidence of muscle atrophy. Regarding the number of
surgical portholes reported on physical examination, the fact that Dr. Israel reported three, rather
than two does not establish that he did not read the medical reports or that Dr. Israel’s opinion is
insufficient to create a conflict. Dr. Israel found that appellant’s gait was normal at the time of
his examination.8 There is insufficient evidence that his opinion failed to create a conflict with
Dr. Montalbano’s opinion. Appellant further argues that Dr. Soren’s opinion is not entitled to
special weight. The Board finds that Dr. Soren’s report is entitled to special weight as the
impartial medical specialist. Therefore, this argument is without merit.
LEGAL PRECEDENT -- ISSUE 2
Where the Office meets its burden of proof in justifying termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
related to the employment injury.9 In order to prevail, the employee must establish by the weight
of the reliable, probative and substantial evidence that he or she had an employment-related
disability which continued after termination of compensation benefits.10
ANALYSIS -- ISSUE 2
The Board finds that, following the proper termination of appellant’s compensation and
medical benefits on August 31, 2008, he failed to establish that he had any continuing disability
or medical condition causally related to his December 20, 2003 employment-related right knee
and left ankle conditions.
In a September 18, 2008 report, Dr. Montalbano explained his disagreement with
Dr. Israel’s report. He opined that appellant had structural/mechanical problems in his right knee
and left ankle related to the December 20, 2003 employment injury which caused his symptoms
and disability. The Board notes that Dr. Montalbano had been on one side of the conflict in
medical evidence and the September 18, 2008 report basically reiterates his previous findings.
An additional report from appellant’s physician, which essentially repeats earlier findings and
conclusions, is generally insufficient to overcome the weight accorded to an impartial medical
specialist’s report where his physician had been on one side of the conflict in the medical opinion
8

Dr. Soren observed that appellant had a cane in his hand at the time of his examination but his gait was normal.

9

I.J., supra note 2; Anna M. Blaine, 26 ECAB 351, 353-54 (1975; see Fred Foster, 1 ECAB 127, 132-33 (1948).

10

I.J. supra note 2; Gary R. Sieber, 46 ECAB 215, 222 (1994); see Wentworth M. Murray, 7 ECAB 5702 (1955).

6

that the impartial medical examiner resolved.11 Dr. Montalbano attributed appellant’s continuing
symptoms and disability to the December 20, 2003 employment injury. However, his opinion
constitutes one side of the conflict which Dr. Soren’s opinion was found to resolve and,
therefore, would not be sufficient to overcome the weight of his report. The Board finds that the
September 18, 2007 report of Dr. Montalbano is not sufficient to establish that appellant had any
disability or medical condition after August 31, 2008 causally related to his December 20, 2003
right knee and left ankle conditions. Accordingly, the Office properly denied modification of the
August 1, 2008 termination decision.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation and medical benefits effective August 31, 2008. The Board further finds that
appellant did not meet his burden of proof to establish that he had any work-related disability or
medical condition after August 31, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 17 and August 1, 2008 are affirmed.
Issued: October 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

11

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
SMITHSONIAN INSTITUTION, S. DILLON
RIPLEY CENTER, Washington, DC, Employer
__________________________________________
Appearances:
Roderick Walls, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0272
Issued: August 4, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On October 16, 2020 appellant, through counsel, filed a timely appeal from a
September 10, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-0272.2
On February 24, 1997 appellant, then a 45-year-old museum protection officer, filed a
traumatic injury claim (Form CA-1) alleging that on January 11, 1997 she slipped and fell on ice
while in the performance of duty. She stopped work on January 12, 1997.

1

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

The Board notes that, following the September 10, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

Appellant returned to light-duty work on March 13, 1997. On April 23, 1997 OWCP
accepted the claim for lumbosacral strain. It later expanded the acceptance of the claim to include
a herniated disc at L5-S1. Appellant again stopped work on May 21, 1997 and did not return.
On February 3, 2010 OWCP referred appellant, a statement of accepted facts (SOAF), and
a list of questions to Dr. Steven Fuller, an osteopath specializing in orthopedic surgery, for a
second opinion evaluation to determine the nature of her accepted conditions, the extent of
disability, and appropriate treatment.
In a March 5, 2010 report, Dr. Fuller noted his review of the SOAF and medical record.
He provided physical examination findings and diagnosed lumbar radicular pain and lumbar
degenerative disc disease at L5-S1 with prior history of disc herniation. Dr. Fuller opined that
appellant had lumbar paravertebral muscle weakness and muscle imbalance related to chronic
deconditioning and sedentary activity. He found that she had reached maximum medical
improvement (MMI). Dr. Fuller noted that appellant had lumbar degenerative disc disease, which
could be related to her accepted employment injury. He indicated that she could not perform her
regular duties as a security guard. Dr. Fuller opined that appellant was capable of working a lightduty job with limited lumbar bending and twisting, no lifting of more than 20 pounds, and limited
standing and walking.
In an April 8, 2010 report, appellant’s treating physician, Dr. Michael Ellerbusch, a Boardcertified specialist in physical medicine and rehabilitation, reviewed Dr. Fuller’s March 5, 2010
report. He concurred with Dr. Fuller’s assessment and noted that appellant had reached MMI.
On July 1, 2010, based on Dr. Fuller’s findings, OWCP referred appellant for vocational
rehabilitation services.
In a letter dated January 10, 2011, OWCP informed appellant that, based on information
from the vocational rehabilitation agency, it appeared that she had discontinued good faith
participation in an OWCP-approved job placement program. Appellant was given 30 days to
contact OWCP and resume a good faith effort, and was instructed that, if she did not cooperate,
action would be taken to reduce her compensation to reflect the wage-earning capacity that she
would have in the job that the rehabilitation counselor found to be within her restrictions and
abilities.
On April 14, 2011 OWCP proposed to reduce appellant’s wage-loss compensation based
on her capacity to earn wages as a Receptionist, Department of Labor, Dictionary of Occupational
Titles, #237.367-038, at the rate of $340.80 per week. It found that the position was medically and
vocationally suitable and represented her wage-earning capacity. OWCP afforded appellant 30
days to respond to the proposed reduction in her compensation.
By decision dated June 21, 2011, OWCP reduced appellant’s wage-loss compensation,
effective July 3, 2011, based on her capacity to earn wages as a receptionist.

2

OWCP continued to receive medical evidence related to appellant’s spinal conditions.3
On August 16, 2020 appellant requested reconsideration of OWCP’s June 21, 2011
decision. She asserted that Dr. Fuller did not examine her on March 5, 2010 and only asked her
questions related to her hypertension medication. Appellant alleged that she requested Dr. Fuller’s
March 5, 2010 report from OWCP, but never received it. She contended that her case was
mishandled and that she was never released back to work. Appellant requested reimbursement
and reinstatement, noting that she was not given the opportunity to recover. She indicated that she
was unable to sit, stand, or walk and suffered from muscle spasms and swollen feet. Appellant
asserted that Dr. Fuller’s report was fabricated as he never examined her in his office.
In an August 28, 2020 attending physician’s report (Form CA-20), Dr. Perry Savage, a
Board-certified orthopedic surgeon, described the accepted employment injury and diagnosed
aggravation of degenerative disc disease and stenosis. He checked a box marked “Yes” indicating
that appellant’s conditions were caused or aggravated by the described employment activity.
Dr. Savage noted that appellant was disabled as of November 20, 2019 and was not advised to
return to work.
By decision dated September 10, 2020, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error.4
The Board having duly considered this matter finds that this case is not in posture for
decision.
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.5 The burden of proof is on the
party attempting to establish a modification of the LWEC determination.6
The Board finds that appellant’s August 16, 2020 request for reconsideration was, in fact,
a request for modification of the June 21, 2011 LWEC determination. It is well established that a

3

By decision dated October 25, 2012, OWCP granted appellant a schedule award for 12 percent permanent
impairment of the right lower extremity. The award ran for 34.56 weeks for the period October 21, 2012 through
June 19, 2013.
4

OWCP incorrectly noted the date of decision for which review was sought as June 11, 2020 instead of
June 21, 2011.
5

20 C.F.R. § 10.511; see C.H., Docket No. 19-1114 (issued April 30, 2020); A.S., Docket No. 18-0370 (issued
March 5, 2019); Tamra McCauley, 51 ECAB 375 (2000); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
6

Id.

3

claimant may establish that a modification of an LWEC determination is warranted if there has
been a showing that the original determination was, in fact, erroneous.7
The Board has held that when an LWEC determination has been issued and appellant
submits evidence with respect to one of the criteria for modification OWCP must evaluate the
evidence to determine if modification is warranted.8
As OWCP improperly reviewed the case under the standard for timely reconsideration
requests, the case must therefore be remanded to OWCP for a proper decision which includes
findings of fact and a clear and precise statement regarding whether appellant has met her burden
of proof to establish modification of the LWEC determination.9 Following any further
development as deemed necessary, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the September 10, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for action consistent with
this decision of the Board.
Issued: August 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7

Id. at § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).

8

See L.P., Docket No. 18-1429 (March 8, 2019).

9

See L.P., Docket No. 20-0154 (issued April 7, 2021). R.Z., Docket No. 17-1455 (issued February 15, 2019).

4