United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 17-0328
Issued: June 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 30, 2016 appellant filed a timely appeal from a July 28, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his right knee
and lower back conditions are causally related to the accepted April 10, 2015 employment
incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 13, 2015 appellant, a 58-year-old maintenance mechanic, filed a traumatic injury
claim (Form CA-1) alleging that, on April 10, 2015, he injured his right knee and lower back as a
result of slipping and falling on rainwater on the floor while in the performance of duty. He did
not stop work.
Appellant submitted physical therapy reports dated June 3 to 29, 2015 in support of his
claim.
In an April 10, 2015 report, Dr. Isabel Baren, a Board-certified internist, noted that
appellant sustained an injury to his right knee and lower back that day due to slipping and falling
on a wet floor at work while checking out a rain leak by an elevator. Appellant reported having
pain and discomfort in both areas, but had no obvious fracture and was able to walk, bend, sit, and
stand.
On April 21, 2015 Dr. J. Todd Smith, a Board-certified orthopedic surgeon, diagnosed
lumbar spondylosis, right knee osteoarthritis, lumbar strain, and knee strain. He asserted that
appellant fell at work on April 10, 2015 as a result of slipping on a rainwater leak near an elevator.
Dr. Smith noted that appellant had fallen on his back and started experiencing back pain and right
knee pain. Appellant reported having a back condition 10 years prior, but had not seen a physician
since that time. He further reported that he occasionally felt like his right knee would slip or give
way, but he had not fallen because of this feeling of instability.
In a May 12, 2015 report, Dr. Smith noted that appellant was very elusive in his
conversation and never directly answered questions. When he discussed appellant’s underlying
spondylosis and right knee osteoarthritis, Dr. Smith found that appellant was very defensive and
refused to answer whether or not he believed that he had these conditions.
On June 2, 2015 Dr. Smith reported that appellant had not yet attended physical therapy
and released him to work with the restrictions of lifting a maximum of 30 pounds and frequent
lifting and/or carrying of objects weighing a maximum of 20 pounds.
In a July 7, 2015 report, Dr. Smith found that appellant continued to experience pain in his
right knee. He found that appellant had a known underlying spondylosis of the lumbar spine, some
underlying right knee osteoarthritis, and possibly some right knee internal derangement.
In a July 20, 2015 development letter, OWCP indicated that when appellant’s claim was
first received it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It indicated that it had reopened the claim for consideration because
appellant’s medical bills had exceeded $1,500.00. OWCP requested additional evidence and
afforded appellant 30 days to respond to its inquiries.
Appellant subsequently submitted a narrative statement dated July 27, 2015 reiterating the
factual history of his claim.

2

By decision dated August 24, 2015, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between his diagnosed
conditions and the April 10, 2015 employment incident.
On September 9, 2015 appellant requested an oral hearing before OWCP’s Branch of
Hearings and Review. He also submitted a physical therapy report dated June 30, 2015.
In a June 16, 2015 report, Dr. Smith diagnosed low back pain, right knee pain with
spondylosis of the lumbar spine, and right knee pain with lumbar strain and right knee strain. He
found that appellant was increasing his strength and range of motion with physical therapy and
anticipated that he would reach maximum medical improvement in three weeks. Dr. Smith
released appellant to light/medium work with restrictions on bending, lifting, and climbing.
A telephonic hearing was held before an OWCP hearing representative on May 12, 2016.
Appellant provided testimony regarding his claim.
By decision dated July 28, 2016, an OWCP hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury3 was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he actually experienced the employment incident at the time, place, and
in the manner alleged. 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.
An employee may establish that the employment incident occurred as alleged, but fail to show that
his or her condition relates to the employment incident.5

2

Id.

3

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008).

5

Id.

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable 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.6
ANALYSIS
OWCP accepted that the employment incident of April 10, 2015 occurred at the time,
place, and in the manner alleged. The issue, therefore, is whether appellant’s right knee and lower
back conditions resulted from the April 10, 2015 employment incident. The Board finds that
appellant has not met his burden of proof to establish causal relationship.
In his reports, Dr. Smith diagnosed lumbar spondylosis, right knee osteoarthritis, lumbar
strain, and knee strain. He found that appellant had a known underlying spondylosis of the lumbar
spine, some underlying right knee osteoarthritis, and possibly some right knee internal
derangement. Dr. Smith noted that appellant fell at work on April 10, 2015 as a result of slipping
on a leak by an elevator. Appellant fell on his back and started experiencing back pain and right
knee pain. He reported having a back issue 10 years ago, but had not seen a physician since that
time. Appellant further reported that he occasionally felt like his right knee would slip or give
way, but he had not fallen because of this. The Board finds that Dr. Smith failed to provide
sufficient medical rationale to explain the mechanism of how falling on a wet floor at work on
April 10, 2015 caused or aggravated appellant’s right knee and lower back conditions.7 Dr. Smith
noted that appellant’s conditions occurred while he was at work, but such generalized statements
do not establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale explaining how his physical activity at work actually
caused or aggravated the diagnosed conditions.8 Dr. Smith’s opinion was based, in part, on a
temporal correlation. However, the Board has held that neither the mere fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or condition
was caused or aggravated by employment factors or incidents is sufficient to establish a causal
relationship.9 The need for rationale is particularly important as the evidence of record indicates
that appellant had preexisting right knee and lower back conditions. Dr. Smith did not otherwise
sufficiently explain how or why diagnostic testing and examination findings led him to conclude
that the April 10, 2015 incident at work caused or contributed to the diagnosed conditions. Thus,
the Board finds that the reports from Dr. Smith are insufficient to establish that appellant sustained
an employment-related injury.

6

Id.

7

The Board notes that Dr. Smith was limited in his ability to explain the mechanism of injury as he reported that
appellant was very elusive in his conversation and never directly answered questions.
8

See K.W., Docket No. 10-0098 (issued September 10, 2010).

9

See E.J., Docket No. 09-1481 (issued February 19, 2010).

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In her report, Dr. Baren noted that appellant sustained an injury to the right knee and lower
back on April 10, 2015 due to slipping and falling on a wet floor at work while checking out a rain
leak by an elevator. Appellant reported having pain and discomfort in both areas, but had no
obvious fracture and was able to walk, bend, sit, and stand. The Board finds that Dr. Baren’s
diagnosis of right knee and lower back pain is a description of a symptom rather than a clear
diagnosis of the medical condition.10 Moreover, the Board has held that the mere fact that
appellant’s symptoms arise during a period of employment or produce symptoms revelatory of an
underlying condition does not establish causal relationship between the appellant’s condition and
his or her employment factors.11 Therefore, the Board finds that Dr. Baren’s report is insufficient
to establish that appellant sustained an employment-related injury.
Appellant further submitted evidence from physical therapists. These documents do not
constitute competent medical evidence because a physical therapist is not considered a “physician”
as defined under FECA.12 As such, this evidence is also insufficient to meet appellant’s burden of
proof.
The Board finds that appellant has not submitted any rationalized medical evidence to
support his allegation that he sustained an injury causally related to the accepted April 10, 2015
employment incident and failed to meet his burden of proof to establish a claim for compensation.
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 that his right
knee and lower back conditions are causally related to the accepted April 10, 2015 employment
incident.

10

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
11

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

12

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J. McPherson,
51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can
only be resolved through the submission of probative medical evidence from a physician).

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ORDER
IT IS HEREBY ORDERED THAT the July 28, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 13, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, CHICKAMAUGA LOCK,
Chattanooga, TN, Employer
__________________________________________

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

Docket Nos. 08-2107 &
08-2542
Issued: May 13, 2009

Case Submitted on the Record

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

JURISDICTION
On July 28, 2008 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated May 5, 2008 that denied his claims for leave buyback and
disability compensation. On September 22, 2008 he timely filed an appeal from a June 16, 2008
Office decision that terminated his compensation and medical benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that he had an employment-related
disability for the period September 6, 2007 to March 1, 2008 causally related to the March 24,
2004 employment injury that would have entitled him to leave buyback and/or wage-loss
compensation; and (2) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits on June 16, 2008. On appeal, appellant contends that his
accepted condition should be expanded to include a herniated disc at the L5-S1 level.

FACTUAL HISTORY
On March 24, 2004 appellant, then a 39-year-old lock and dam operator, sustained injury
when he lost his footing and fell in a pit, hitting the back of his head and bitting his tongue. In an
emergency room report dated March 24, 2004, Dr. Suzanne Corrington, a Board-certified
internist, noted a history that appellant hit the back of his head on a nut when he fell into a pit at
work. Physical findings included a lump on the back of his head with no laceration and
tenderness in the upper back between the shoulder blades. Dr. Corrington diagnosed
musculoskeletal pain. A May 27, 2004 x-ray of the lumbar spine demonstrated disc space
narrowing at the L5-S1 level with mild posterior osteophyte formation. A thoracic spine x-ray
was normal. Appellant returned to full duty on June 3, 2004.
In reports dated June 3 and 15, 2004, Dr. S. Craig Humphreys, Board-certified in
orthopedic surgery, noted a history that appellant fell about 10 feet at work and experienced low
back and left lower extremity pain. He diagnosed age-appropriate degenerative changes of the
lumbar spine, worse at L5-S1 and advised that appellant could return to full duty with time off
for physical therapy. A whole body scan on July 8, 2004 was unremarkable. On July 16, 2004
the Office accepted that appellant sustained an employment-related low back strain.
In a January 20, 2005 report, Dr. Humphreys diagnosed low back and left hip pain and
symptoms of sexual dysfunction. A February 2, 2005 magnetic resonance imaging (MRI) scan
of the lumbar spine demonstrated lower lumbar spondylosis with canal and neural foraminal
stenosis at L4-5 and L5-S1. On August 21, 2006 Dr. Humphreys noted that appellant’s pain was
worsening and referred him for pain management.
By report dated September 12, 2006, Dr. Gregory N. Ball, a Board-certified
anesthesiologist, reviewed the history of injury that appellant fell into a pit onto steel machinery,
landing on his back, striking a bolt that was projecting out of the floor. He noted appellant’s
complaints of ongoing back pain and provided physical examination findings of tenderness of
the thoracic and lumbar spines and positive straight leg raising on the right. Dr. Ball diagnosed
lumbar stenosis, lumbar herniated nucleus pulposus, chronic low back pain, erectile dysfunction
secondary to pain and medications, insomnia related to pain, depression and anxiety related to
pain and opined that all were workers’ compensation related.1 An October 2, 2006 MRI scan of
the thoracic spine demonstrated multilevel mild degenerative disc disease and no focal disc
herniation or spinal stenosis. An October 2, 2006 MRI scan of the lumbar spine revealed no
significant interval change from the February 2, 2005 MRI scan, showing multilevel
degenerative disc disease at L2-3, L4-5 and most severe at L5-S1 with moderate right
neuroforaminal narrowing at L5-S1.
On December 13, 2006 Dr. Ball performed an epidural steroid injection. He submitted
additional reports describing appellant’s condition. On August 15, 2007 Dr. Ball noted that
appellant had increasing pain in the lower back and legs resulting in missed time at work and
difficulty with activities of daily living. Physical findings of the lumbar spine included palpable
spasms with decreased range of motion. He additionally diagnosed chronic pain syndrome,
1

Appellant also provided an August 24, 2005 report from Linda Mocniak, a physician’s assistant and an associate
of Dr. Ball.

2

moderate to severe and persistent in nature, secondary to an injury that occurred at work on
March 24, 2004.
By report dated August 20, 2007, Dr. James G. White, III, a Board-certified
neurosurgeon, noted a history that appellant injured his back at work two-and-one-half years
previously and had a chief complaint of worsening low back pain. Straight leg raising was
positive bilaterally. Dr. White advised that appellant had severe degenerative disc disease as
demonstrated by the 2006 MRI scan and recommended repeat diagnostic testing. Lumbar spine
x-rays on September 4, 2007 demonstrated degenerative changes at L4-5 and, more marked, at
L5-S1. A September 5, 2007 MRI scan of the lumbar spine demonstrated multilevel
degenerative disc disease, greatest at L4-5 and L5-S1.2
On September 7, 2007 Dr. White advised that treatment options, including surgery, were
discussed with appellant. In a September 13, 2007 report, Dr. Ball noted that appellant had been
taken off work due to safety concerns and medication side effects. He advised that appellant had
a moderate to severe chronic pain syndrome that was persistent in nature caused by the
March 24, 2004 employment injury, which resulted in multilevel degenerative disc disease of the
lumbar spine with moderate right neural foraminal narrowing at L5-S1 with L5 radiculopathy,
lumbago and lumbar stenosis with expected sequelae of erectile dysfunction secondary to pain
and medication, insomnia and depression/anxiety syndrome. In a September 21, 2007 letter,
Dr. Ball advised that, due to increased medication side effects and the potential for creating an
unsafe work environment, appellant was taken off work. On September 28, 2007 Dr. White
reported that appellant was to be scheduled for surgery.
By letter dated October 2, 2007, the employing establishment contended that appellant’s
current back condition was not related to the March 24, 2004 employment injury and that his
accepted low back strain had resolved.
On November 2, 2007 appellant filed Forms CA-7 for leave buyback and other wage loss
for the period September 6 to November 2, 2007 and for leave without pay for the period
November 2 to 24, 2007 and a Form CA-7b, leave buyback worksheet, for the period
September 6 to November 2, 2007.
On October 24, 2007 an Office medical adviser
recommended that appellant’s request for surgery be denied because the lumbar spine
degenerative changes were not work related.
In letters dated December 19, 2007, the Office informed appellant that the evidence of
record was insufficient to establish his claim for disability and leave buyback beginning
September 6, 2007. It requested additional medical evidence. In a January 23, 2008 letter,
Dr. White advised that appellant had two markedly degenerated discs in his lower back and that
either his lumbar strain had progressed or the initial diagnosis was incorrect. On January 30
2

Appellant also submitted reports dated July 23, 2004 and March 8, 2005 from Curt Palmer, an August 24, 2005
report from Linda Mocniak, both of whom are physician’s assistants and associates of Dr. Humphreys and a
September 5, 2007 report from Timothy Hocking, a nurse practitioner and associate of Dr. Ball. These reports are
not considered medical evidence as these persons are not considered physicians under the Federal Employees’
Compensation Act. Section 8101(2) defines the term “physician” to include surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law. 5 U.S.C. § 8101(2); see Sean O’Connell, 56 ECAB 195 (2004).

3

2008 appellant filed additional claims and worksheets for leave buyback for the period
November 3 to 10, 2007 and November 24 to January 11, 2008 and leave without pay for the
periods November 10 to 24, 2007 and January 6 and January 20 to March 1, 2008.
On February 14, 2008 Dr. Ball advised that appellant had limitations in activities of daily
living and noted his complaint of constant stabbing pain. He provided examination findings and
reiterated his diagnoses of chronic back pain due to the March 24, 2004 work injury, lumbar
stenosis, lumbar degenerative disc disease and lumbar disc protrusion, failed injection therapy,
insomnia, depression and anxiety related to his pain condition and erectile dysfunction secondary
to chronic opioid use. Dr. Ball reviewed appellant’s medical history and treatment regimen,
noting that an MRI scan study was not done until February 2005. He opined that there had not
been a recurrence of lumbar strain as originally diagnosed, but a chronic pain condition from
lumbar degenerative disc disease, lumbar stenosis and lumbar disc herniation which, if not
present at the time of the injury, was certainly aggravated by the 8 to 10 foot fall appellant
sustained at work on March 24, 2004. Dr. Ball advised that at the present, due to the medication
appellant required for his chronic pain condition, he could not work, but that with less
medication and following surgery, he could return to work.
On March 7, 2008 the Office referred appellant to Dr. Alexander N. Doman, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a March 28, 2008 report, he
reviewed the history of injury and the medical record, including a statement of accepted facts and
MRI scans. Physical examination demonstrated mild tenderness along the paralumbar muscles
with negative straight leg raising test in the sitting and supine positions. Lower extremity deep
tendon reflexes and sensory examination were normal with no sign of muscle atrophy. X-rays of
the lumbar spine demonstrated significant degenerative disc disease at L4-5 and L5-S1 with facet
joint sclerosis at L4-S1. In answer to Office questions, Dr. Doman advised that appellant had a
long-standing degenerative condition of the lumbar spine. He found that the degenerative disc
disease was not caused by the 2004 injury, which caused a temporary aggravation that ceased
within 12 months of the injury. Dr. Doman stated that appellant had no residuals or limitations
of the employment injury. He further advised that the proposed surgery was not causally related
to the employment injury but was based on appellant’s underlying degenerative condition.
Dr. Doman opined that appellant had been over-medicated with heavy mood altering drugs
including heavy narcotics. He recommended that appellant be weaned off these medications and
an inversion table used in treatment of his underlying lumbar degenerative disc disease. In an
attached work capacity evaluation, Dr. Doman advised that maximum medical improvement had
been reached and that appellant could perform his usual job duties, noting that he had underlying
degenerative lumbar spondylosis. A lower extremity nerve conduction study demonstrated mild
right S1 radiculopathy.
Dr. Ball submitted additional reports and appellant returned to his regular duties on
April 11, 2008.
By letter dated May 2, 2008, the Office proposed to terminate appellant’s compensation
benefits on the grounds that he no longer had residuals of the accepted low back strain. In
decisions dated May 5, 2008, it denied appellant’s claim for leave buyback for the period
September 6 to November 2, 2007 and wage-loss compensation for the period November 3 to 24,
2007, for leave buyback for the period November 3 to 10, 2007, for compensation for the period

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November 10 to 24, 2007, for leave buyback for the period November 24, 2007 to January 5,
2008, leave buyback for the period January 3 to 11, 2008 and wage-loss compensation for the
period January 11 to 19, 2008 and his claim for compensation for the period January 20 to
March 1, 2008.
Appellant disagreed with the proposed termination, arguing that he missed work due to
medication prescribed for his accepted condition and that his claim be accepted for aggravation
of degenerative disc disease with herniated disc. He submitted a May 20, 2008 report in which
Dr. Ball reiterated his findings and conclusions.
By decision dated June 16, 2008, the Office finalized the termination of benefits, finding
that Dr. Doman represented the weight of medical opinion.
LEGAL PRECEDENT -- ISSUE 1
Under the Act,3 the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.4 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in the Act.5
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.6 When
employment factors cause an aggravation of an underlying physical condition, the employee is
entitled to compensation for the periods of disability related to the aggravation.7 When the
aggravation is temporary and leaves no permanent residuals, compensation is not payable for
periods after the aggravation ceased.8
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
3

5 U.S.C. §§ 8101-8193.

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

Larson, The Law of Workers’ Compensation § 10.01 (December 2000); see Charles W. Downey, 54 ECAB
421 (2003).
7

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

8

Id.

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reliable, probative and substantial medical evidence.9 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.10 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.11
In a typical leave buyback case, an injured employee uses sick or annual leave to prevent
wage loss after an employment injury. If a claim is accepted and the work absences would
otherwise be compensable under the Act, the employee may wish to buyback this leave from the
employing establishment. If the employing establishment agrees to allow the leave buyback, the
absences previously covered by sick or annual leave are recorded as leave without pay, creating a
wage loss for which the employee may claim compensation.12 In situations where compensation
is claimed for periods when leave was used, the Office has the authority and responsibility to
determine whether the employee was disabled during the period for which compensation is
claimed.13 Office regulations at 20 C.F.R. § 10.425 regarding whether compensation may be
claimed for periods of restorable leave, stated that the employee may claim compensation for
periods of annual and sick leave, which are restorable in accordance with the rules of the
employing establishment. Forms CA-7 and 7b are used for this purpose.14
Section 8123(a) of the 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.15
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a low back strain caused by a March 24,
2004 fall. The Board finds a conflict in medical opinion has been created regarding whether
appellant was disabled from September 6, 2007 to March 1, 2008 causally related to the
employment injury. Dr. Ball, an attending pain management specialist, began treating appellant
in September 2006, one year prior to his work stoppage in September 2007. On September 13,
2007 he noted that appellant had a moderate to severe chronic pain syndrome that was persistent
9

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

10

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

11

G.T., supra note 10; Fereidoon Kharabi, supra note 9.

12

Lloyd E. Griffin, Jr., 46 ECAB 979 (1995).

13

Glen M. Lusco, 55 ECAB 148 (2003).

14

20 C.F.R. § 10.425; see Laurie S. Swanson, 53 ECAB 517 (2002).

15

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

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in nature and caused by the March 24, 2004 employment injury. Dr. Ball noted multilevel
degenerative disc disease of the lumbar spine with moderate right neural foraminal narrowing at
L5-S1 with L5 radiculopathy, lumbago and lumbar stenosis with expected sequelae of erectile
dysfunction secondary to pain and medication, insomnia and depression/anxiety syndrome. On
January 23, 2008 Dr. White advised that appellant had two markedly degenerated discs in his
lower back and that either his lumbar strain had progressed or the initial diagnosis was incorrect.
Appellant’s attending physicians advised that the diagnosed degenerative back condition was
caused or permanently aggravated by the March 24, 2004 fall at work. Furthermore, Dr. Ball
advised that appellant was totally disabled due to the medications he was prescribed.
Dr. Doman who provided a second opinion evaluation for the Office, advised that
appellant’s degenerative disc disease was not caused by the March 24, 2005 injury. He noted
that the injury caused a temporary aggravation that ceased within 12 months. Dr. Doman stated
that appellant had no residuals or limitations of the employment injury and advised that the
proposed surgery was not causally related to the employment injury but would be for his
underlying degenerative condition and that he could return to his usual employment.
Due to the difference of opinion between appellant’s attending physicians, Drs. White
and Ball, and the Office referral physician, Dr. Doman, the Board finds that there is a conflict of
medical opinion regarding whether appellant had any periods of total disability beginning on
September 6, 2007 due to the employment injury. On remand, the Office should refer appellant,
a statement of accepted facts and a list of specific questions to an appropriate Board-certified
physician for an impartial medical evaluation regarding these issues. After such further
development as it deems necessary, the Office shall issue an appropriate decision.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.16 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.17
ANALYSIS -- ISSUE 2
In the instant case, the Office relied on the opinion of the second opinion examiner,
Dr. Doman, as the weight of the medical evidence in establishing that appellant had no residuals
of his accepted lumbar strain and terminated his compensation benefits on June 16, 2008. As
noted, appellant’s physicians opined that appellant continued to be disabled due to residuals of
the employment injury whereas Dr. Doman, who provided a second opinion evaluation for the
Office, advised that appellant’s current degenerative disc disease of the lumbar spine was not
caused or aggravated by the March 24, 2004 employment injury. The Board finds that there is
16

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

17

Id.

7

conflict of medical opinion regarding whether appellant’s employment-related condition had
resolved. The Office did not meet its burden of proof in terminating appellant’s compensation
benefits.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
was disabled from September 6, 2007 to March 1, 2008 causally related to the March 24, 2004
employment injury. The Office did not meet its burden of proof to terminate appellant’s
compensation and medical benefits on June 16, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 5, 2008 are set aside and the case is remanded to the Office
for development consistent with this opinion of the Board. The decision dated June 16, 2008 is
reversed.
Issued: May 13, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wallingford, CT, Employer
__________________________________________

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

Docket No. 09-681
Issued: October 13, 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 January 12, 2009 appellant timely appeals January 23, June 19 and December 10,
2008 decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that she
sustained an occupational injury in the performance of duty; (2) whether the Office properly
denied appellant’s request for an oral hearing as untimely filed; and (3) whether the Office
properly denied appellant’s request for reconsideration without a further merit review.
FACTUAL HISTORY
On October 28, 2007 appellant, then a 54-year-old clerk, filed an occupational disease
claim alleging that she sustained severe back pain and pain shooting down the left side of her
body due to repetitive bending to pick up trays of mail. She first realized that her condition was
related to her employment on October 11, 2007. Appellant did not stop work.

In support of her claim, appellant submitted treatment notes dated October 11 and 18,
2007 from Dr. Kumu Fernando, a Board-certified anatomic pathologist, who noted appellant’s
complaint of left side sciatica and leg pain. Dr. Fernando also noted that appellant’s work
required bending and lifting “all day long.” She opined that this injury was work related.
On November 15, 2007 the Office advised appellant of the factual and medical evidence
necessary to establish her claim and allowed her 30 days to submit additional evidence. In a
December 10, 2007 statement, appellant indicated that she began working at the employing
establishment in 1989. She noted that her position required repetitive bending and lifting trays of
mail between 8 to 12 hours a day. Appellant asserted this weakened and strained her back
muscles and nerves. On some days, it was difficult to walk, bend and sit. Appellant did not
participate in any physical activities outside of work.
On October 26, 2007 Dr. Fernando noted appellant’s complaint of sciatica and buttock
pain. She indicated her belief that this was a work-related injury. On November 8, 2007
Dr. Fernando diagnosed left sciatic pain secondary to lifting heavy weights. She also advised
that appellant could work light duty. In a November 30, 2007 report, Dr. Fernando noted
treating appellant since 1991. She indicated that appellant worked full time lifting heavy sacks
and boxes of mail. Dr. Fernando further indicated that appellant experienced “on and off” back
pain which was directly related to her work. She noted that appellant did not play any sports or
instruments and her hobbies consisted of watching movies. Dr. Fernando opined that the only
regular strain on appellant’s back was from lifting sacks and boxes of mail, which was directly
related and the cause of her back pain. She further opined that appellant had no other injuries
that would have caused this diagnosis.
In a January 23, 2008 decision, the Office denied appellant’s compensation claim finding
that the medical evidence did not establish that the claimed medical condition resulted from the
accepted events.
Appellant submitted a November 27, 2007 treatment note from Dr. Fernando, advising
that appellant took medication on an as-needed basis. Dr. Fernando questioned whether
appellant’s condition was a workers’ compensation issue as she suspected it was or something
else. Appellant also resubmitted a November 8, 2007 treatment note.
In a letter dated May 10, 2008, appellant requested an oral hearing. She asserted that she
did not receive notice of the Office’s decision until April 2, 2008. Appellant only found out that
a decision had been made because her physician’s office contacted her regarding her case. She
also submitted an April 10, 2008 oral hearing request form, postmarked April 14, 2008, which
she sent to the Board.1 This was forwarded to the Office’s Branch of Hearings and Review
where it was received on May 13, 2008.
In a June 19, 2008 decision, the Office denied appellant’s oral hearing request finding
that it was not filed within 30 days from the January 23, 2008 Office decision. It further found
that her claim could be equally well addressed by requesting reconsideration.

1

No prior appeal was docketed in this matter.

2

In a July 27, 2008 statement, appellant requested reconsideration, advising that she could
not obtain more medical records from her treating physician until the end of August 2008. In an
August 23, 2008 statement, she reiterated that she was requesting reconsideration. Appellant
noted that the Office had not yet received her medical records as she had sent them an incorrect
address. She subsequently submitted a reconsideration request form dated April 10, 2008 and
postmarked August 25, 2008. Appellant resubmitted her December 10, 2007 statement.
In a December 10, 2008 decision, the Office denied appellant reconsideration request
without a further merit review finding that the evidence submitted was insufficient.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. 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.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence 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. 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.4
ANALYSIS -- ISSUE 1
The record supports that appellant’s position as a clerk consisted of repetitive bending
and lifting to pick up trays of mail. However, appellant has not provided sufficient medical
2

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

3

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

4

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

3

evidence to establish that a diagnosed condition is causally related to these identified
employment factors.
In a November 30, 2007 report, Dr. Fernando noted that appellant’s work required lifting
heavy boxes of mail and that she experienced back pain directly related to her work. She also
noted that appellant did not play any sports or instruments. Dr. Fernando opined that the only
regular strain on appellant’s back was from lifting boxes of mail, which was the direct cause of
her back pain. She advised that no other injury caused appellant’s diagnosed condition.
However, the mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of causal relation based upon a specific and accurate
history of employment conditions, which are alleged to have caused or exacerbated a disabling
condition.5 Dr. Fernando did not specifically address how lifting boxes of mail caused or
aggravated appellant’s back condition, her opinion is of limited probative value. Moreover, the
only diagnosis provided by her was for back pain. However, the Board has generally held that
pain is a symptom, not a firm medical diagnosis.6
Dr. Fernando’s reports dated October 11 to 26, 2007 noted appellant’s complaint of pain
as well as the fact that her work required bending and lifting “all day long.” In these reports, she
opined that appellant’s injury was work related. Although Dr. Fernando generally supported
causal relationship, she failed to provide any medical reasoning to explain how bending and
lifting caused her a specific back condition. The Board has held that medical reports not
containing rationale on causal relation are entitled to little probative value and are generally
insufficient to meet an employee’s burden of proof.7 As noted, pain is not a firm medical
diagnosis. Although Dr. Fernando diagnosed sciatica, her October 26, 2007 treatment noted that
she did not provide medical reasoning to explain how particular work activities such as bending
and lifting caused or aggravated this condition.
Consequently, the medical evidence does not establish that appellant sustained an
occupational disease causally related to factors of her employment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant not satisfied with a decision of the
Office is entitled to a hearing before an Office hearing representative when the request is made
within 30 days after issuance of the Office’s decision.8 Under the implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to a hearing by
writing to the address specified in the decision within 30 days (as determined by postmark or
other carrier’s date marking) of the date of the decision, for which a hearing is sought.9 If the
5

Patricia Bolleter, 40 ECAB 373 (1988).

6

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

7

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

8

5 U.S.C. § 8124(b)(1).

9

20 C.F.R. § 10.616(a); id.

4

request is not made within 30 days or if it is made after a reconsideration request, a claimant is
not entitled to a hearing or a review of the written record as a matter of right.10
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing. The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.11
ANALYSIS -- ISSUE 2
The Office issued its decision, denying appellant’s claim on January 23, 2008.
Appellant’s request for an oral hearing was dated April 10, 2008. Because the hearing request
was made more than 30 days after the January 23, 2008 decision, the Board finds that the Office
properly denied appellant’s request for a hearing as untimely filed. Appellant is not entitled to a
hearing as a matter of right. The Board has held that section 8124(b)(1) is unequivocal in setting
forth the time limitation in requests for hearing.12
Although appellant asserted that she did not receive notice of the Office’s decision until
April 2, 2008, the record indicates that the Office’s January 23, 2008 decision was duly mailed to
her address of record. The Board has held that, in the absence of evidence to the contrary, it is
presumed that a notice mailed to an individual in the ordinary course of business was received by
that individual. Under the mailbox rule, evidence of a properly addressed letter together with
evidence of proper mailing may be used to establish receipt.13
The Office also exercised its discretionary authority under section 8124 in considering
whether to grant a hearing. It found that appellant’s request could be equally well addressed
through a request for reconsideration under section 8128 and the submission of new evidence.
The Board has held that it is an appropriate exercise of discretion for the Office to apprise
appellant of the right to further proceedings under the reconsideration provisions of section
8128.14 The Board finds that the Office properly exercised its discretion in denying appellant’s
request for an oral hearing as untimely.

10

Teresa Valle, 57 ECAB 542 (2006).

11

D.E., 59 ECAB ___ (Docket No. 07-2334, issued April 11, 2008).

12

Ella M. Garner, 36 ECAB 238 (1984); Charles E. Varrick, 33 ECAB 1746 (1982).

13

See C.T., 60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009); Larry L. Hill, 42 ECAB 596 (1991).

14

See André Thyratron, 54 ECAB 257 (2002).

5

LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.15 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 3
Appellant’s reconsideration request and subsequent letters dated July 27 and August 23,
2008 did not allege or demonstrate that the Office erroneously applied or interpreted a specific
point of law. Additionally, she did not advance a relevant legal argument not previously
considered by the Office. Consequently, appellant is not entitled to a review of the merits of her
claim based on the first two requirements, as noted.
With respect to the third requirement, submitting relevant and pertinent new evidence,
appellant submitted a November 27, 2007 treatment note from Dr. Fernando noting appellant’s
status and questioning whether her condition was a workers’ compensation issue as she
suspected it was or something else. To the extent that Dr. Fernando indicated support for causal
relationship, her report is cumulative as it merely reiterates her previously stated opinion. The
submission of evidence which repeats or duplicates evidence already in the case record does not
constitute a basis for reopening a case.17 Additionally, appellant submitted Dr. Fernando’s
November 8, 2007 report. However, this report was already of record and considered by the
Office. As noted, duplicative evidence does not warrant reopening a case. Therefore, the Office
properly denied appellant’s request for a review on the merits as she failed to meet any of the
three requirements, noted above, for reopening a claim for merit review.
On appeal, appellant asserts that she submitted sufficient medical evidence to establish
her claim. As noted, however, the Board found that the medical evidence is insufficient to
establish that her claimed condition was causally related to her employment duties.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained an occupational disease in the performance of duty. The Board also finds that the
Office properly denied appellant’s request for an oral hearing as untimely filed. The Board

15

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

16

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

17

Roger W. Robinson, 54 ECAB 846 (2003).

6

further finds that the Office properly denied appellant’s request for reconsideration without
further merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated December 10, June 19 and January 23, 2008 are affirmed.
Issued: October 13, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 11-756
Issued: September 30, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 21, 2011 appellant filed a timely appeal from an October 12, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
wage-loss compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s claim for wage-loss
compensation from September 23, 2005 through February 23, 2007.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. The Board’s jurisdiction is limited to
reviewing the evidence that was before OWCP at the time of its final decision. This additional evidence cannot be
considered by the Board. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell,
5 ECAB 35, 36 n.2 (1952).

On appeal, appellant contends that the medical evidence establishes that she was unable
to work during the claimed period.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated May 3, 2011, the
Board reversed OWCP’s May 25, 2010 decision terminating appellant’s compensation and
schedule award benefits for refusing an offer of suitable employment, due to an unresolved
conflict in medical opinion.3 The facts and the law contained in the Board’s prior decision are
incorporated herein by reference.
On March 8, 2007 appellant, then a 57-year-old clerk, filed an occupational disease claim
alleging that she sustained injuries to her cervical and lumbar spine due to her employment
activities. She stopped working on February 22, 2007. Appellant stated that she first became
aware of her condition on September 27, 2005. OWCP accepted her claim for sprains of the
cervical and lumbar spines and aggravation of degenerative cervical and lumbosacral
intervertebral disc disease. The claim was subsequently accepted for cervical subluxation. On
May 10, 2007 appellant submitted a claim for wage-loss compensation claiming total disability
from September 23, 2005 through February 23, 2007.4
Medical evidence submitted by appellant relevant to the period of her claimed disability
included a September 9, 2005 work-tolerance form signed by Dr. Russell Cox, a chiropractor,
who stated that she could work eight hours a day with restrictions, including standing and
walking no more than four hours a day; sitting intermittently eight hours a day; lifting no more
than 25 pounds; and using her arms frequently. In a September 28, 2005 work tolerance form,
Dr. Daren L. Kirk, a chiropractor, diagnosed lumbar dysfunction and stated that appellant was
able to work eight hours per day with restrictions, including standing and walking no more than
six hours a day, occasional bending and lifting no more than 15 pounds occasionally.
The record reflects that on September 23, 2005 appellant accepted a light-duty job offer
that encompassed Dr. Cox’s restrictions. Physical restrictions included working only eight hours
a day; walking four hours a day; sitting intermittently eight hours a day; lifting 25 pounds
intermittently; and lifting above the shoulder frequently.
In a February 22, 2007 report, Dr. Kirk stated that he had been treating appellant since
September 23, 2005 for low back and neck pain. Examination revealed decreased lumbar and
cervical range of motion and pain was elicited upon all ranges of motion. X-rays revealed
lumbar and cervical intersegmental dysfunction and degenerative disc disease. He diagnosed
lumbar strain/sprain due to occupational lifting, resulting in intersegmental dysfunction with
associated hypokinesia and spinal paravertebral myospasm and myalgia complicated by
degenerative disc disease and cervical intersegmental dysfunction with associated hypokinesia
and spinal paravertebral myospasm complicated by degenerative disc disease and aggravated by
3

Docket No. 10-1785 (issued May 3, 2011).

4

Appellant submitted time analysis sheets reflecting that she missed work from September 23, 2005 through
February 23, 2007 due to alleged back and neck pain.

2

moving in any range of motion. Dr. Kirk stated that, over the course of the previous year and a
half, appellant’s spinal condition had continued to deteriorate, although she had received
chiropractic adjustments and intersegmental fraction therapy approximately every two weeks
since her first visit. He opined that her constant bending, lifting, squatting, etc. at work had
resulted in constant myospasms and spinal degeneration.
Appellant was treated by Dr. Gerald Snider, a Board-certified family practitioner, who
opined that she was unable to work as of March 1, 2007 due to her accepted conditions. OWCP
found that she was totally disabled as of March 1, 2007 and placed her on the periodic rolls.
In a letter dated May 15, 2007, OWCP informed appellant that the evidence submitted
was insufficient to establish her claim. Appellant was advised to provide additional medical
evidence to establish that she was totally disabled from September 23, 2005 through
February 23, 2007.
On May 22, 2007 Dr. Kirk indicated that, since September 27, 2005, when he first began
treating her, appellant had experienced chronic low back and neck pain. As a result of her
chronic pain, appellant was placed on light duty status. He stated, “There have been many days
since 9/27/2005 that she has not been able to go to work at all.” In a September 26, 2007 letter,
Dr. Kirk referenced his February 22, 2007 report that contained a diagnosis of cervical and
lumbar intersegmental dysfunction. He clarified that he used the term “intersegmental
dysfunction” interchangeably with “vertebral subluxation.”
On October 7, 2007 appellant contended that she was entitled to compensation for the
period dates claimed because OWCP accepted her claim with the date of injury identified as
September 27, 2005.
In an October 10, 2007 second opinion report, Dr. William D. Smith, a Board-certified
orthopedic surgeon, provided examination findings and diagnosed degenerative cervical and
lumbar disc disease, which he attributed, in part, to the work incident dated September 27, 2005.
Stating that appellant was not capable of working at a modified mail processor position, he
provided permanent restrictions, included sitting for no more than one hour; standing and
walking for 30 minutes; pushing, pulling and lifting a maximum of 10 pounds for four hours; no
squatting, kneeling, climbing, bending, stooping, twisting; reaching above the shoulder; or
operating a motor vehicle.
The record contains reports from Dr. Snider through the date of the final decision in this
matter reiterating his opinion that appellant was unable to work due to her accepted condition. In
a December 21, 2007 report, Dr. Snider stated that she had suffered an injury to both the cervical
and lumbar spine on September 27, 2005. He noted that magnetic resonance imaging (MRI)
scan of the cervical and lumbar spine revealed L5-S1 disc degeneration with grade 2 spondylosis
and a possible posterior midline protrusion of the C3-4 and C2-3 discs and posterior bulging of
the C6-7 disc as well as small cyst-like structures in the bilateral foramen. Dr. Snider noted that
appellant’s activities were extremely limited and she had difficulty performing even light duties.
Appellant’s attempt to return to light duty failed due to increase in her neck and low back pain
after 25 minutes.

3

In a second opinion report dated September 8, 2008, Dr. Sami Framjee, a Board-certified
orthopedic surgeon, opined that appellant’s accepted conditions had resolved and that she could
return to her position as a manual mail clerk with restrictions including lifting no more than 20
pounds.
OWCP referred appellant to Dr. Christopher Jordan, a Board-certified orthopedic
surgeon, to resolve the conflict in medical opinion between Dr. Framjee and Dr. Snider. In a
November 15, 2008 report, Dr. Jordan related her statement that her neck and back spasms
developed in 2005. In response to OWCP’s questions, he stated that there was no evidence of
acute problems and that the cervical and lumbar MRI scans reflected degenerative changes.
Based on her physical examination, it seemed reasonable she could work part time in a sedentary
job.
The record contains a report of a December 22, 2008 functional capacity evaluation
performed by Don Stover, a physical therapist, who states that appellant was not able to function
at the medium/heavy demand level as her original job required, but she should be able to safely
function at the light/medium demand level with restrictions of no lifting from floor to waist level,
no squatting, no standing or walking more than 30 minutes without the opportunity to sit.
In an April 16, 2009 referee report, Dr. C.L. Soo, a Board-certified orthopedic surgeon,
diagnosed multiple lumbar degenerative changes and opined that appellant had continuing
residuals from her accepted injury. He stated that a new functional capacity examination was
necessary to determine whether appellant could work full or part time at a regular sedentary,
light or limited-duty job. Pursuant to the results of a December 11, 2009 FCE, Dr. Soo opined
that she could perform a job involving a light level of work eight hours per day, with restrictions.
Including lifting from floor to waist less than three hours per day, lifting waist to eye level less
than 17 pounds, three hours per day, carrying with both hands less than 25 pounds, three hours
per day, sitting, walking, standing or repetitive truck rotation less than six hours per day, raising
her arm above the head, standing, bending over, stooping and climbing stairs less than three
hours per day.5
On May 27, 2010 appellant inquired as to the status of her claim for compensation for the
period September 28, 2005 through February 23, 2007. She contended that the employing
establishment was in agreement that she was disabled, because it never protested about the times
she missed work. Appellant argued that the medical evidence was sufficient to establish her
claim.
In an August 24, 2010 letter, Dr. Snider stated that appellant had been under his care
since March 1, 2007 due to work-related trauma and subsequent dysfunction. He opined that she
was unable to perform the duties of the modified clerk position.
5

On March 15, 2010 the employing establishment offered appellant a position as a modified clerk, which OWCP
found to be suitable. On April 10, 2010 appellant informed OWCP that she was physically unable to perform the
duties of the modified clerk position. By decision dated May 25, 2010, OWCP terminated her compensation
benefits effective June 6, 2010 for failure to accept suitable employment. In a decision dated May 3, 2011, the
Board reversed OWCP’s May 25, 2010 decision terminating appellant’s compensation and schedule award benefits
for refusing an offer of suitable employment, due to an unresolved conflict in medical opinion. Docket No. 10-1785
(issued May 3, 2011).

4

By decision dated October 12, 2010, OWCP denied appellant’s claim for compensation
for the period September 28, 2005 through February 23, 2007. It found that there was
insufficient medical evidence to establish that she was totally disabled from work during this
period.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the evidence.6 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.7 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.8 The Board will not require
OWCP to pay compensation for disability in the absence of medical evidence directly addressing
the specific dates of disability for which compensation is claimed. To do so, would essentially
allow an employee to self-certify their disability and entitlement to compensation.9
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.10 Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant,11 must be one of reasonable medical certainty12 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.13
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.14 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
6

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
7

See Amelia S. Jefferson, id. See also David H. Goss, 32 ECAB 24 (1980).

8

See Edward H. Horton, 41 ECAB 301 (1989).

9

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

See Viola Stanko, claiming as widow of (Charles Stanko), 56 ECAB 436 (2005); see also Naomi A. Lilly,
10 ECAB 560, 572-73 (1959).
11

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

12

See Morris Scanlon, 11 ECAB 384, 385 (1960).

13

See William E. Enright, 31 ECAB 426, 430 (1980).

14

20 C.F.R. § 10.5(f).

5

who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.15
ANALYSIS
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her claimed total disability between
September 23, 2005 and February 23, 2007 and her accepted cervical and lumbar conditions.16
The reports of her physicians do not provide a rationalized medical opinion finding her disabled
for work during the claimed period. Therefore, the medical evidence submitted is insufficient to
meet appellant’s burden of proof.17
The medical evidence included reports from her chiropractors. Dr. Kirk, who began
treating appellant on September 23, 2005, diagnosed cervical and lumbar intersegmental
dysfunction pursuant to x-rays, clarifying that “intersegmental dysfunction” was a term that he
uses interchangeably with “vertebral subluxation.” The Board finds that she is a physician for
purposes of FECA.18 His reports, however, do not support appellant’s claim for total disability.
Dr. Snider’s reports also fail to establish that appellant was disabled for the period in
question. He provided an inaccurate history of injury reflecting that she suffered an injury to
both the cervical and lumbar spine on September 27, 2005. In fact, appellant’s claim was
occupational in nature, having developed as a result of employment activities over a period of
time. Dr. Snider admittedly did not begin treating her until March 1, 2007, when he opined that
she was unable to work due to her accepted conditions. He did not address appellant’s ability to
work prior to that time, however. Therefore, Dr. Snider’s reports are not relevant to the issue at
hand, namely, whether she was disabled between September 23, 2005 and February 27, 2007 and
do not establish appellant’s claim.
The record contains medical reports from OWCP’s second opinion and referee
physicians, including reports from Drs. Framjee, Jordan, Smith and Soo dating from October 10,
2007 to April 16, 2009. These reports were obtained for the purpose of ascertaining opinions
regarding appellant’s current disability and/or work capability. They did not address whether
appellant was disabled during any period from September 23, 2005 through February 23, 2007.
Therefore, the reports are not relevant to the issue before the Board and are of limited probative
value.

15

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

16

See Amelia S. Jefferson, supra note 6.

17

Alfredo Rodriguez, 47 ECAB 437 (1996).

18

Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term ‘physician’ includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).

6

Because appellant has not submitted any probative medical opinion evidence to show that
she was disabled for the period September 23, 2005 through February 23, 2007, as a result of her
accepted employment injury, the Board finds that OWCP properly denied her claim for wageloss compensation.
CONCLUSION
The Board finds that appellant has not established that she was disabled for work and
entitled to wage-loss compensation for the period September 23, 2005 through
February 23, 2007.
ORDER
IT IS HEREBY ORDERED THAT the October 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 30, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Quincy, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1844
Issued: January 21, 2016

Case Submitted on the Record

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

JURISDICTION
On September 9, 2015 appellant, through counsel, filed a timely appeal of an April 17,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral knee
injuries due to factors of her employment.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On October 19, 2012
appellant, then a 52-year-old city carrier, filed an occupational disease claim (Form CA-2) noting
that on July 5, 2012 she first realized the work-related nature of an October 18, 2010 injury
1

5 U.S.C. § 8101 et seq.

incurred while walking with a heavy mailbag on uneven surfaces. The claim form also noted
that this claim was originally sent to OWCP as a recurrence from an injury sustained in
May 2012.
In support of her claim, appellant submitted a report dated July 5, 2012, from Dr. David
Bingham, an osteopath. Dr. Bingham reported appellant’s bilateral knee pain of four to five
years was worsened by carrying her mailbag while walking on uneven surfaces and traversing
stairs. He found that she walked with a limp on the right and had limited range of motion in her
right knee with normal strength. Dr. Bingham reported significant patellar crepitus bilaterally
and strongly positive patellar grind test on the right. He reviewed x-rays and diagnosed
tricompartmental osteoarthritis with full-thickness joint loss in the right knee and on the left less
loss of cartilage height. Dr. Bingham diagnosed bilateral knee osteoarthritis. He concluded,
“This patient has pretty advanced osteoarthritis of her knees for someone her age. Given her
lack of history of major trauma, I think it is reasonable to assume that a significant component is
wear, it has to do with her carrying a heavy load for over two decades for the [employing
establishment].”
Appellant asserted that she had worked for the employing establishment for 31 years and
had been a letter carrier for 28 years. She alleged that she was required to walk on uneven
ground, up and down steps and through ice and snow. Appellant noted that she was required to
carry a mailbag and attributed her knee conditions to these activities.
In a letter dated November 16, 2012, OWCP requested additional factual and medical
evidence in support of appellant’s claim. Appellant submitted an additional statement describing
her job duties on July 4, 2012 including carrying a mailbag weighing up to 30 pounds for six
hours a day while walking 6 to 10 miles. She noted that walking through snow and ice, on
uneven ground, climbing steps, stooping and bending were hard for her and contributed to her
knee condition.
Dr. Bingham completed a note on August 23, 2012 and diagnosed bilateral knee
osteoarthritis.
In a report dated December 10, 2012, Dr. Bingham noted that he first examined appellant
on July 5, 2012 due to her bilateral knee conditions. He described appellant’s employment
duties as a mail carrier of 20 years including carrying a heavy bag up and down stairs and while
long distance walking. Dr. Bingham found severely limited range of motion in appellant’s right
knee with prominent patellar crepitus on active and passive range of motion of both knees. He
reviewed x-rays which demonstrated severe tricompartmental arthritis especially in the
patellofemoral compartment of both knees with considerable loss of joint space. Dr. Bingham
diagnosed severe osteoarthritis of bilateral knees worse on the right. He concluded:
“As for the cause of this disease, lacking significant history of trauma and severity
of the arthritis, certainly a long history of load bearing is likely a considerable
contributing factor to this. It is certainly unusual to have arthritis this severe in a
patient this young and fit with no significant history of knee injury. I suspect that
especially the need to carry heavy loads up and down stairs is a significant

2

contributing factor to her arthritis and certainly her need to continue doing so is
her major exacerbating factor at this time.”
OWCP denied appellant’s claim by decision dated January 24, 2013. It found that
Dr. Bingham’s reports addressing a causal relationship between appellant’s duties and her
condition were speculative and equivocal.
Counsel requested an oral hearing before an OWCP hearing representative on
February 1, 2013. Dr. Bingham submitted a report dated March 26, 2013 and contended that he
was unable to provide a specific cause or relationship of her osteoarthritis. He opined that there
was a possibility that appellant’s mail carrying was a contributing factor, but that he could not
confirm that this was the only or even dominant factor given the many possible causes of
osteoarthritis and the fact that it was a degenerative disease.
Appellant testified at the oral hearing on May 17, 2013 that she had undergone knee
replacement surgery on the left on March 27, 2013 and on the right on April 18, 2013. She also
submitted a newspaper article regarding her knee replacements.
By decision dated August 1, 2013, an OWCP hearing representative found that
Dr. Bingham’s reports were insufficient to establish a causal relationship between appellant’s
diagnosed condition and her employment. The Board reviewed this decision on February 18,
20142 and found that Dr. Bingham’s reports were equivocal on the relationship between
appellant’s diagnosed condition and her employment. The Board determined that these reports
were not sufficient to meet appellant’s burden of proof.
Following the Board’s February 18, 2014 decision, counsel requested reconsideration
through a letter dated and received by OWCP on November 19, 2014. He submitted an
additional report from Dr. Bingham dated May 20, 2014. Counsel again noted that as a mail
carrier appellant walked long distances carrying heavy packages which resulted in an abnormal
increased strain across her knees and left her very susceptible to increased wear. Dr. Bingham
also reported that appellant believed that her work caused her knee damage. He diagnosed
severe tricompartmental osteoarthritis of both knees with near complete loss of joint space,
periarticular osteophytes and subchondral sclerosis in all three compartments based on x-ray.
Dr. Bingham reported, “While I cannot definitively pinpoint a definitive cause of the beginning
of arthritis, certainly the speed of her progress and the severity of her presentation at 52 years old
is abnormal for her age. In my medical opinion, the nature of her work is a significant
contributing factor to the progression of her osteoarthritis.”
By decision dated April 17, 2015, OWCP reviewed the merits of appellant’s claim and
denied modification of the prior decisions. It found that Dr. Bingham’s report was insufficiently
detailed, did not contain supportive medical documents, such as x-rays, and did not explain how
appellant’s arthritis differed from the natural course and how the work activities would alter or
accelerate the natural process.

2

Docket No. 13-2117 (issued February 18, 2014).

3

LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”3 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.4
ANALYSIS
The Board finds that appellant has not submitted the necessary rationalized medical
opinion evidence to establish a causal relationship between her diagnosed bilateral knee arthritis
and her accepted employment duties.
As noted previously, the Board reviewed Dr. Bingham’s reports through March 26, 2013
and found that these reports were not sufficiently detailed and well-reasoned to meet appellant’s
burden of proof in her occupational disease claim. On reconsideration from OWCP, appellant
submitted an additional report dated May 20, 2014. Dr. Bingham described appellant’s
implicated job duties of walking long distances carrying heavy packages. He opined that this
resulted in an abnormal increased strain across her knees and left her very susceptible to
increased wear. Dr. Bingham again diagnosed bilateral knee osteoarthritis based on x-rays. He
noted that the speed of the progress and the severity of her bilateral knee arthritis presentation
was abnormal for her age of 52. Dr. Bingham again concluded, “In my medical opinion, the
nature of her work is a significant contributing factor to the progression of her osteoarthritis.”
However, he again does not explain how or why her specific work duties have contributed to the
progression of her osteoarthritis.
The Board finds that this additional report is essentially cumulative of the previous
reports submitted by Dr. Bingham. In his December 10, 2012 report previously reviewed by the
Board, Dr. Bingham made essentially the same findings and conclusions as in the May 20, 2014
report. The Board finds that this report has the same deficiencies as Dr. Bingham’s previous
reports and is therefore insufficient to meet appellant’s burden of proof to establish her
occupational disease claim as it lacks the necessary medical reasoning.
3

20 C.F.R. § 10.5(q).

4

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

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral knee
injuries due to factors of her employment.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
OKLAHOMA CITY AIR LOGISTICS CENTER, )
TINKER AIR FORCE BASE, OK, Employer
)
__________________________________________ )
J.W., claiming as widow of F.W., Appellant

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

Docket No. 12-778
Issued: November 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 14, 2012 appellant filed an appeal of an October 25, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for survivor’s
benefits. 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 the employee’s death on October 28, 2009
was causally related to factors of his federal employment.
On appeal, appellant’s attorney contends that OWCP’s decision is not supported in fact or
law and argued that its reference to an unknown diagnosis of “artherosclerotic cardiovascular
disease” as opposed to the correct autopsy diagnosis of “hypertensive atherosclerotic
cardiovascular disease” in the August 16, 2010 decision is reversible error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
The employee, a geologist, died on October 28, 2009 at the age of 66 while he was on
special assignment in Bagram, Afghanistan. The death certificate listed the natural cause of
death as atherosclerotic cardiovascular disease. Appellant, the employee’s widow, filed a claim
for survivor’s benefits (Form CA-5) on January 18, 2010 alleging that a cardiac arrest caused the
employee’s death.
In a March 5, 2010 letter, OWCP notified appellant of the deficiencies of her claim and
requested additional factual and medical information. It asked for details of previous cardiac
symptoms and the employee’s activities for the week prior to his death. OWCP afforded her 30
days to respond to its inquiries.
In a March 22, 2010 statement, appellant stated that the employee’s heart attack was
caused by being in a war zone and under extreme stress which aggravated any condition he may
have had. She stated that he did not ever show symptoms of cardiac problems, never had a heart
attack, bypass surgery or the like. The employee took medication for cholesterol and blood
pressure, but did not believe that either presented itself as an at-risk situation. He monitored his
blood pressure with a home monitor and it was normal when he was deployed to Afghanistan.
The employee did not smoke, rarely drank alcohol and worked out every other day since college.
In a January 22, 2009 report, Dr. R.J. Langerman, Jr., an osteopath Board-certified in
orthopedic surgery, noted that he had treated the employee for his knees and shoulders. He
opined that the employee was capable of carrying at least 40 pounds and running at least 100
yards or more.
In an April 9, 2009 report, Dr. Jerome L. Anderson, a Board-certified cardiologist,
advised that the employee had a normal stress test with stage IV exercise on a Bruce protocol
which is 12 minutes of total exercise on a vigorous elevation. The employee nuclear heart scan
was normal and his physical examination conducted on October 9, 2008 was normal. He
continued on medication for cholesterol control.
In a June 19, 2009 report, Dr. Basel S. Hassoun, a Board-certified urologist, stated that
the employee was diagnosed with benign hematuria in 2006. The employee was seen on
January 6, 2009 for an annual examination and underwent a magnetic resonance imaging (MRI)
scan of his kidneys, which was normal. A urine cytology test came back as normal, as well.
Appellant submitted a July 7, 2009 treadmill exercise tolerance report which revealed
that the employee had no chest pain or arrhythmias.
In a July 8, 2009 report, Dr. Anderson stated that the employee was in good health and
was treated for blood pressure with various medications. He underwent a stress test on July 7,
2009 where he had excellent exercise tolerance of 12 minutes and four stages of exercise and a
normal electrocardiogram (EKG) from start to finish. The employee’s blood pressure and heart
rate rose rapidly, but he did not show any cardiovascular disease.
Appellant submitted e-mail correspondence with the employee, including a message
dated October 22, 2009 in which he reported an earthquake. The employee indicated that his
ankle had gotten much better and he was able to do some exercise without it swelling. On
2

October 26, 2009 he stated that he went to the gym in the morning and decided he had better run
to keep warm.
In a March 17, 2010 statement, Wanda Brown, the employee’s sister, stated that the
employee was in excellent health at the time of his death. She stated that he was very religious
about his exercise routine and a healthy diet.
On March 21, 2010 the employing establishment stated that the employee worked
10-hour days at a minimum as a project manager, overseeing several construction and design
projects. The employee was exposed to one to two rocket attacks a week, the sound of automatic
weapons and a number of minor earthquakes. He appeared to be in good health and was engaged
in an exercise routine that involved frequent weight training.
By decision dated June 3, 2010, OWCP denied appellant’s claim. It found that the
medical evidence submitted did not establish that the employee’s death was related to factors of
his federal employment.
On June 9, 2010 appellant, through her attorney, requested reconsideration. In a June 8,
2010 report, Dr. Anderson opined that a high load of stress and environment could be directly
related to any sudden cardiac death and induction of arrhythmias as a potential correlated set of
circumstances. He noted that the employee’s death could have different causes. Dr. Anderson
reported that the autopsy pointed to a thickened heart or hypertensive heart disease and stated
that the employee did die from hypertensive heart disease and the immediate cause was not
specific. There was asymptomatic atherosclerotic cardiovascular disease with some narrowing
of the coronary arteries, no acute myocardial infarction or any infarct zone on the heart.
Dr. Anderson explained that when there was asymptomatic coronary narrowing and hypertensive
heart disease with a thickened heart from blood pressure and age, there was a propensity for
sudden arrhythmias. He concluded that the most likely immediate cause of the employee’s death
was a cardiac arrhythmia, which would most likely cause sudden cardiac death with result from
an arrhythmia, such as ventricular tachycardia deteriorated into ventricular fibrillation where the
heart does not pump correctly from the rapid irregular rhythm. A sudden arrhythmia would
cause collapse and sudden death unless there was immediate resuscitation. Dr. Anderson opined
that with the autopsy results, the past history of hypertension and the findings of a thickened
heart it seemed to be the most likely cause and then there were the underlying atherosclerotic
changes, which were asymptomatic. He noted that the employee had a stressful situation
working in Afghanistan with regards to the workload, 10-hour workdays, rocket attacks,
earthquakes and sounds of automatic weapons firing.
By decision dated August 16, 2010, OWCP denied the claim on the basis that the
evidence failed to establish causal relationship.
On July 20, 2011 appellant, through her attorney, requested reconsideration.
An October 30, 2009 final autopsy report by Dr. AbuBakr A. Marzouk, a Board-certified
pathologist, found hypertensive atherosclerotic cardiovascular disease to be the natural cause of
death. The report noted that the employee had severe calcific coronary atherosclerosis, three
vessel disease, 50 to 90 percent narrowing of the lumen and focal subocclusive platelet
thrombus. The employee had multiple remote and healing myocardial infarctions (over a week

3

old), Frank’s sign of ear lobules and pulmonary congestion and edema. Dr. Marzouk indicated
that the autopsy examination revealed no evidence of trauma or foul play and toxicological
studies were negative.
In a July 6, 2011 report, Dr. Anderson noted that he could not state with 100 percent
medical certainty the immediate cause of the employee’s death as he was not in attendance at the
time. He reiterated that the stressful situation associated with high altitude and cold weather,
along with the long hours, and the associated attack and threat of attacks, combined with
underlying hypertensive heart disease, as determined by autopsy, would lead to an arrhythmia,
such as ventricular tachycardia, deterioration, ventricular fibrillation and sudden death and
without immediate resuscitation, death would be what would follow from a primary ventricular
arrhythmia.
By decision dated October 25, 2011, OWCP affirmed the August 16, 2010 decision. It
found that the medical evidence submitted was not sufficient to establish that the employee’s
death was causally related to factors of his federal employment. The autopsy report established
that the cause of death was hypertensive atherosclerotic cardiovascular disease.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of his duty.2 An award of
compensation in a survivor’s claim may not be based on surmise, conjecture or speculation or an
appellant’s belief that the employee’s death was caused, precipitated or aggravated by the
employment.3 Appellant has the burden of establishing by the weight of the reliable, probative
and substantial medical evidence that the employee’s death was causally related to an
employment injury or to factors of his employment. As part of this burden, she must submit a
rationalized medical opinion, based upon a complete and accurate factual and medical
background, showing a causal relationship between the employee’s death and an employment
injury or factors of his federal employment. Causal relationship is a medical issue and can be
established only by medical evidence.4
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the employee’s death and the accepted conditions or
employment factors identified by the employee.5

2

5 U.S.C. § 8133 (compensation in case of death).

3

See Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

4

See Mary J. Briggs, 37 ECAB 578 (1986); Umberto Guzman, 25 ECAB 362 (1974).

5

See Donna L. Mims, 53 ECAB 730 (2002).

4

ANALYSIS
OWCP accepted the factors of the employee’s employment, i.e., exposure to rocket
attacks, the sound of automatic weapons and earthquakes. On January 18, 2010 appellant filed a
claim for survivor’s benefits. She alleged that factors of the employee’s federal employment,
such as working 10-hour days in a war zone and being exposed to one to two rocket attacks per
week, the sound of automatic weapons and a number of minor earthquakes, contributed to the
cause of death listed on his autopsy report, hypertensive atherosclerotic cardiovascular disease.
The Board finds that appellant did not submit sufficient medical evidence to establish her claim
for survivor’s benefits. Appellant did not submit rationalized medical evidence showing that
factors of the employee’s federal employment contributed to his death.6
In a July 8, 2009 report, Dr. Anderson indicated that the employee was in good health
and did not show any cardiovascular disease. On June 8, 2010 he noted that the employee’s
death could have different causes, but concluded that given the autopsy findings, a stressful work
environment in a war zone and the findings of a thickened heart, the most likely immediate cause
of his death was a cardiac arrhythmia, which would most likely cause sudden cardiac death. On
July 6, 2011 Dr. Anderson indicated that he could not state with 100 percent medical certainty
about the immediate cause of the employee’s death since he was not in attendance at the time,
but reiterated his medical opinion. The Board has held that the fact that a condition manifests
itself or worsens during a period of employment7 or that work activities produce symptoms
revelatory of an underlying condition8 does not raise an inference of causal relationship between
a claimed condition and employment factors. Although Dr. Anderson noted the general
relationship between stress and cardiac conditions, he used equivocal language and failed to
provide a rationalized medical opinion explaining how the implicated employment factors
contributed to the employee’s death.
On January 22, 2009 Dr. Langerman indicated that he had treated the employee for his
knees and shoulders and opined that he was capable of carrying at least 40 pounds and running at
least 100 yards or more. On June 19, 2009 Dr. Hassoun indicated that the employee was
diagnosed with benign hematuria in 2006 and had a normal urine cytology and MRI scan of his
kidneys. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.9 Moreover, these reports did not address the threshold issue of whether the
employee’s death was employment related. As such, the Board finds that appellant did not meet
her burden of proof with the submission of the reports by Drs. Langerman and Hassoun.
Appellant did not submit sufficient medical evidence to meet her burden of proof.
Therefore, the Board finds that OWCP properly denied the claim for compensation.

6

See K.A., Docket No. 11-186 (issued November 1, 2011).

7

See William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

9

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

5

On appeal, counsel argues that its reference to an unknown diagnosis of “artherosclerotic
cardiovascular disease” as opposed to the correct autopsy diagnosis of “hypertensive
atherosclerotic cardiovascular disease” in its August 16, 2010 decision is reversible error. By
decision dated October 25, 2011, OWCP found that the autopsy report established that the cause
of death was hypertensive atherosclerotic cardiovascular disease. The Board finds that the
reference to an incorrect diagnosis in the decision dated August 16, 2010 is harmless error.
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 did not meet her burden of proof to establish that the
employee’s death on October 28, 2009 was causally related to factors of his federal employment.
Thus, appellant has not established that she is entitled to receive survivor’s benefits.
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2012
Washington, DC

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

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

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

6