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

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

Docket No. 15-1687
Issued: June 9, 2016

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 August 3, 2015 appellant, through counsel, filed a timely appeal from a February 4,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease in the performance of duty.

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2

5 U.S.C. § 8101 et seq.

Appellant requested oral argument. By order dated December 8, 2015, the Board, in its discretion, denied oral
argument as it determined that the issues on appeal could be adequately addressed in a decision based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 15-1687 (issued December 8, 2015).

FACTUAL HISTORY
On January 23, 2013 appellant, then a 64-year-old former letter carrier, filed an
occupational disease claim (Form CA-2) alleging that factors of his employment caused a
permanent acceleration of osteoarthritis of the bilateral knees and hips. He alleged that standing,
bending, twisting, pivoting, stooping, walking, climbing stairs, lifting, and carrying contributed
to his condition. Appellant contended that he first became aware of his condition and its relation
to his federal employment on October 24, 2012. He retired on April 30, 2010.
Multiple reports from Dr. William Murzic, a Board-certified orthopedic surgeon, and
Dr. Maurice Greenbaum, Board-certified in internal medicine, were submitted assessing
osteoarthritis of various areas of appellant’s body. On June 26, 2006 appellant underwent a right
total hip arthroplasty. His preoperative diagnosis was osteoarthritis of the right hip.
In September 22, 2011 diagnostic reports, Dr. Michael Geary, a Board-certified
diagnostic radiologist, advised that x-rays revealed mild left hip osteoarthritis, right knee
tri-compartmental degenerative spurring of the right knee, and prominent joint space narrowing
in the medial compartment of the left knee.
In a January 4, 2013 report, Dr. Byron Hartunian, an orthopedic surgeon, advised that
appellant’s job duties included walking five to eight miles a day, carrying a satchel weighing up
to 35 pounds, lifting and carrying up to 70 pounds, prolonged standing, repetitive bending,
twisting, pivoting, stooping, squatting, climbing, and reaching. He noted that in 2000 appellant
noticed right hip pain radiating towards the right knee and that currently he had significant
arthritic changes of the left knee and increased stiffness of the left hip. Right hip examination
revealed 25 percent limitation of squatting because of stiffness, 89 degrees of flexion, 6 degrees
extension, 14 degrees internal rotation, 36 degrees external rotation, 34 degrees abduction, and
18 degrees adduction. The left hip had 90 degrees flexion, 6 degrees extension, 12 degrees
internal rotation, 34 degrees external rotation, 24 degrees abduction, and 16 degrees adduction.
Examination of the knees revealed tenderness to palpation along the medial joint, 98 degrees
right knee flexion, and 84 degrees left knee flexion. Dr. Hartunian noted the results of
October 24, 2012 x-rays and assessed post right total hip replacement for end-stage degenerative
arthritis, primary right knee joint arthritis, left hip arthritis, and left knee arthritis. He opined
that, although the etiology of arthritis cannot be stated with certainty, repetitive forceful stress
through the hips and knees is a known and recognized causative factor and such was likely the
case with appellant. Dr. Hartunian noted that scientific evidence established that factors
contributing to the progression of osteoarthritis in joints include heavy work, standing, walking,
stooping, bending, kneeing, lifting, twisting, and pivoting, which was the type of work appellant
performed. He asserted that, no matter the original cause of the arthritis, appellant’s activities
permanently accelerated the preexistent degenerative process in his hips and knees.
Dr. Hartunian noted that OWCP had accepted numerous claims where letter carrier duties
affected lower extremity joints already afflicted with arthritis. He quoted a report from an
OWCP medical adviser, in another claim where OWCP accepted that mail carrier duties
aggravated osteoarthritis.
By letter dated January 31, 2013, the employing establishment controverted appellant’s
claim arguing that medical evidence showed that he was well aware of his condition prior to

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October 2012. It contended that a more acceptable date of injury would be May 28, 2002, as a
radiology report on that day showed bilateral degenerative arthritis of the hips.
By letter dated March 1, 2013, OWCP informed appellant of the type of evidence needed
to establish his claim. It advised him that he had 30 days from the date of the letter to submit
responsive evidence.
By decision dated May 2, 2013, OWCP denied the claim finding the medical evidence of
record was insufficient to establish that the diagnosed conditions were causally related to the
work duties. It noted that Dr. Hartunian’s opinion was based in part on diagnostic tests that were
not made available to OWCP.
On May 7, 2013 appellant, through counsel, requested an oral hearing. Later on July 27,
2013, counsel requested a review of the written record as opposed to an oral hearing.
In a July 25, 2013 report, Dr. Hartunian clarified that he mistakenly referenced an
October 24, 2012 diagnostic report and that he actually reviewed September 22, 2011 x-rays. He
reiterated his opinion that appellant’s job duties permanently hastened and accelerated the
preexisting degenerative process in his hips and knees and that his work duties were a significant
causative factor in that regard.
By decision dated December 9, 2013, an OWCP hearing representative affirmed the
denial of appellant’s claim.
By letter dated December 5, 2014, appellant requested reconsideration. In support of his
request, counsel submitted reports, from other claims not involving appellant, where OWCP
medical advisers found that the duties of letter carriers aggravated and accelerated osteoarthritis.
He asserted that this was precedent under OWCP procedures.
In a February 4, 2015 decision, OWCP advised that before newly submitted evidence was
insufficient to warrant modification of its prior decision.
On appeal, appellant’s counsel disagreed with the hearing representative. He contended
that she misconstrued causal relationship, inaccurately characterized evidence and testimony, and
inaccurately quoted and applied applicable law.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden 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, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

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the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.6
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.7
ANALYSIS
The Board finds that this case is not in posture for a decision.
Appellant filed an occupational disease claim asserting that he sustained an acceleration
of bilateral hip and knee osteoarthritis due to factors of his employment. OWCP denied the
claim because he submitted insufficient medical evidence to establish that factors of his federal
employment caused an aggravation of bilateral knee and hip osteoarthritis. The Board finds,
however, that the case requires further development regarding whether appellant sustained an
occupational disease causally related to employment factors.
In his January 4, 2013 report, Dr. Hartunian noted appellant’s work duties and reviewed
his duties and requirement as a letter carrier. He noted the weight of the mailbag and the amount
of miles he walked daily. Dr. Hartunian indicated that the climbing of stair loads the lower body
joints three times the body weight, and descending stairs loads six times the body weight.
Further, he articulated that repetitive forceful stresses through the hip and knees are a known and
causative factor of degenerative arthritis. Dr. Hartunian also outlined appellant’s detailed
treatment history. He opined that, although the etiology of arthritis cannot be determined with
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.J., 59 ECAB 408 (2008); supra note 4.

7

James Mack, 43 ECAB 321 (1991).

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certainty, repetitive forceful stress through the hips and knees is a known and recognized
causative factor and such was likely the case with appellant. Dr. Hartunian noted that scientific
evidence established that factors contributing to the progression of osteoarthritis in joints include
heavy work, standing, walking, stooping, bending, kneeing, lifting, twisting, and pivoting, which
was the type of work appellant performed. He asserted that, no matter the original cause of the
arthritis, appellant’s activities permanently accelerated the preexistent degenerative process in
his hips and knees. Dr. Hartunian reiterated his opinion on causal relationship in his July 25,
2013 report. He opined that appellant’s activities as a letter carrier permanently hastened and
accelerated the preexisting degenerative process in his hips and knees.
Dr. Hartunian’s reports, when read together, identified employment factors which
appellant claimed caused his condition, identified findings upon examination, and explained how
the identified employment factors caused or aggravated a diagnosed condition. The Board finds
that Dr. Hartunian’s opinion, while not sufficiently rationalized to meet appellant’s burden of
proof, is sufficient, given the absence of any opposing medical evidence, to require further
development of the record.8 It is well established that proceedings under FECA are not
adversarial in nature9 and while appellant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence.10 OWCP has an
obligation to see that justice is done.11
The case will be remanded to OWCP for further action consistent with this decision. On
remand, after such further development of the case record as OWCP deems necessary, a de novo
decision shall be issued.12
CONCLUSION
The Board finds that the case is not in posture for a decision.

8

See Earnest J. Reece, Jr., 32 ECAB 1508, 1510 (1981). See also John J. Carlone, 41 ECAB 354 (1989);
Horace Langhorne, 29 ECAB 820 (1978).
9

See e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo, 29 ECAB 159, 161 (1978);
William N. Saathoff, 8 ECAB 769, 770-71 (1956).
10

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

11

William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

12

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

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ORDER
IT IS HEREBY ORDERED THAT the February 4, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for additional development
consistent with this decision.
Issued: June 9, 2016
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
__________________________________________
E.M.
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Suitland, MD, Employer
__________________________________________

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

Docket No. 20-0668
Issued: April 28, 2021

Case Submitted on the Record

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

JURISDICTION
On February 4, 2020 appellant filed a timely appeal from a September 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability, commencing February 7, 2018, causally related to his accepted November 12, 2002
employment injury.
FACTUAL HISTORY
On December 27, 2002 appellant, then a 33-year-old materials handler, filed a traumatic
injury claim (Form CA-1) alleging that he sustained an injury on November 12, 2002 when he
1

5 U.S.C. § 8101 et seq.

lifted heavy computer equipment while in the performance of duty. He stopped work on
November 19, 2002. OWCP accepted the claim for lumbar strain and subsequently expanded its
acceptance of appellant’s claim to include displacement of lumbar intervertebral disc without
myelopathy. It paid appellant wage-loss compensation on the periodic rolls, effective
August 8, 2004.
On October 11, 2006 appellant returned to full-time, limited-duty work. In June 2007, he
returned to full-duty work.
Appellant continued to receive medical treatment. In examination reports dated May 15
and 22, 2018, Dr. Alan G. Shreiber, a Board-certified orthopedic surgeon, related appellant’s
complaints of increasing pain in his back radiating to his left leg. Upon examination of appellant’s
lumbar spine, he observed moderate tenderness in the lower back area. Examination of the
bilateral lower extremities revealed normal sensory and motor function. Dr. Shreiber assessed
lumbar sprain and lumbosacral spondylosis.
On May 29, 2018 appellant underwent a lumbar spine magnetic resonance imaging (MRI)
scan, which demonstrated multilevel degenerative disc disease, mild broad-based disc bulge at L34, moderate broad-based disc bulge and mild stenosis at L4-5, and mild broad-based disc bulge
and neuroforaminal narrowing at L5-S1.
In a June 1, 2018 report, Dr. Shreiber indicated that appellant was seen in follow-up of
continued low back pain radiating to his left leg. He discussed the recent lumbar spine MRI scan
and noted that the stenosis at L4-5 was fairly significant. Dr. Shreiber assessed lumbosacral
spondylosis.
On June 12, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that on
February 7, 2018 he sustained a recurrence of disability due to his accepted November 12, 2002
employment injury. He noted that he had returned to normal duties and began to have pain in his
left hip and extreme pain in his lower back. Appellant further noted that the pain was similar to
the pain he felt when he had his original injury. On the reverse side of the claim form, L.D., a
workers’ compensation specialist for the employing establishment, indicated that appellant had
informed her via telephone interview that on February 7, 2018 he was loading computer monitors
into boxes when he experienced an onset of pain in his hips which later worsened.
In a June 18, 2018 report, Dr. Chee-Hahn Hung, a Board-certified physical medicine and
rehabilitation physician who specializes in pain medicine, indicated that appellant was evaluated
for an injury that occurred at work. Upon examination of appellant’s left lower extremity, he
observed unusual sensation to light touch in the left posterior thigh and calf. Examination of
appellant’s lumbar spine revealed bilateral low back and buttock pain with lumbar flexion.
Dr. Hung assessed chronic pain syndrome, left sciatica, and lumbar post laminectomy syndrome.
He reported that appellant was doing well after the July 29, 2004 lumbar surgery, until the “new
workmen’s compensation injury after repetitive bending and lifting on 2/7/18.” Dr. Hung
indicated that appellant was taken off work on May 1, 2018 and that he was extending appellant’s
time off work.

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In a June 18, 2018 disability note, Dr. Hung advised that appellant may not return to work
until after appellant’s next appointment on July 11, 2018.
In a July 9, 2018 development letter, OWCP advised appellant that additional evidence was
needed to establish his recurrence claim, including a treating physician’s opinion supported by
medical rationale explaining how his claimed recurrence of disability was due to a worsening of
his original injury, without an intervening cause or new exposure. It also requested that he
completed an attached questionnaire. OWCP afforded appellant 30 days to submit the necessary
evidence.
Appellant submitted physical therapy treatment notes and billing sheets dated June 15 to
July 24, 2018.
In reports and disability notes dated July 10 and August 7, 2018, Dr. Schreiber indicated
that he examined appellant in follow-up of his low back pain. He reviewed appellant’s history and
noted lumbar examination findings of moderate tenderness in the low back. Dr. Schreiber assessed
lumbosacral spondylosis and lumbar sprain. He noted that appellant could not return to work until
after appellant’s next scheduled appointment on September 4, 2018.
In a July 31, 2018 letter, Dr. Schreiber related that appellant initially injured his lower back
and developed significant leg pain at work around 2005. He indicated that appellant returned to
work in 2006 and experienced some intermittent lower back pain. Dr. Schreiber reported that
appellant was treated over the past 12 years intermittently with medication and was doing well.
He noted that he had recently seen appellant on May 1, 2018 for complaints of increasing lower
back pain radiating down his left leg that began while he was working. Dr. Schreiber explained
that he initially thought it was bursitis, but a lumbar spine MRI scan revealed a disc herniation at
L4-5 with some spinal stenosis. He noted a diagnosis of spinal stenosis with radiculopathy.
Dr. Schreiber opined that this injury appeared to be more of a new workers’ compensation injury,
rather than an exacerbation of the old one, since this injury was at a different level than appellant’s
original operation. He advised that appellant could not return to work until appellant’s pain
lessened.
In an August 3, 2018 report, Dr. Hung indicated that appellant was doing well after
appellant’s back surgery until his new workers’ compensation injury that occurred on
February 7, 2018. He related that appellant experienced pain on the left buttock and down the left
posterior thigh, with tingling in the entire left leg and numbness after repetitive bending and lifting
at work. Dr. Hung assessed chronic pain syndrome and indicated that appellant was taken off
work on May 1, 2018.
In a September 4, 2018 report and disability note, Dr. Schreiber indicated that appellant
was still complaining of severe pain in his lower back radiating into his left lower extremity. Upon
physical examination, he observed normal sensory and motor function of both lower extremities
and moderate tenderness in the lumbosacral spine. Dr. Schreiber assessed lumbar sprain and
lumbosacral spondylosis. He advised that appellant could not return to work until after his next
scheduled appointment on October 2, 2018.

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By decision dated September 13, 2018, OWCP denied appellant’s recurrence of disability
claim, finding that the medical evidence of record was insufficient to establish a recurrence of
disability due to his accepted November 12, 2002 employment injury.2
On June 21, 2019 appellant requested reconsideration. He explained that he believed that
his lower back and left hip pain was part of the nature of his original injury. Appellant pointed out
that the 2002 lumbar spine MRI scan showed L4-5 disc bulging, but a June 2018 lumbar spine
MRI scan revealed that the L4-5 disc was ruptured. He alleged that Dr. Schreiber had repeatedly
tried to provide OWCP with information based on what it requested, but it seemed that there was
a lot of confusion on what OWCP needed to prove that appellant’s injury was caused by his
employment.
Appellant submitted a May 14, 2019 report by Dr. Schreiber. Dr. Schreiber related that
appellant had lumbar decompression surgery in October 2018 and was doing fairly well until a
couple of days ago when appellant woke up with some increasing left buttock and leg pain.
Examination of appellant’s lumbar spine revealed moderate and generalized tenderness and
decreased range of motion. Dr. Schreiber assessed lumbar sprain and status post laminectomy.
He reported that appellant was having some difficulty with workers’ compensation about the
etiology of his injury. Dr. Schreiber noted that on February 6, 2018 appellant was picking up
monitors at work when he experienced increased pain in his back and leg. He opined that the
lifting was the direct cause of appellant’s injury, which eventually led to his surgery. Dr. Schreiber
explained that the excessive lifting caused his disc at L4-5 to rupture.
By decision dated September 18, 2019, OWCP denied modification of the September 13,
2018 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.3 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.4
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
2

On October 6, 2018 appellant filed a traumatic injury claim (Form CA-1) alleging that on February 6, 2018 he
sustained pinched nerve impingement on the left side while in the performance of duty. OWCP assigned OWCP File
No. xxxxx200. On September 12, 2019 OWCP administratively combined OWCP File No. xxxxxx200 and the current
claim under OWCP File No. xxxxxx630, with the latter serving as the master file.
3

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
4

Id.

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findings. The change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. OWCP does not include
a condition that results from a new injury, even if it involves the same part of the body previously
injured.5
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to employment
injury and supports that conclusion with medical reasoning.6 Where no such rationale is present,
the medical evidence is of diminished probative value.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing February 7, 2018, causally related to his accepted November 12, 2002
employment injury.
In support of his claim, appellant submitted a series of medical reports from Dr. Shreiber
dated May 15, 2018 to May 14, 2019. In his initial examination report, Dr. Schreiber noted
examination findings of moderate tenderness in the lumbar spine and normal sensory and motor
function of the bilateral lower extremities. He diagnosed lumbar sprain and lumbosacral
spondylosis. In disability notes dated July 10 to September 4, 2018, Dr. Schreiber advised that
appellant could not return to work until after his next appointment on October 2, 2018. Although
he took appellant off work beginning May 15, 2018, he did not provide an opinion as to whether
the period of disability was due to appellant’s accepted employment injury. As these reports did
not address the relevant issue of whether appellant was disabled from employment commencing
February 7, 2018 due to his accepted employment injury, they are insufficient to meet his burden
of proof.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

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
6

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

7

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

8

See K.E., Docket No. 19-1922 (issued July 10, 2020); F.S., Docket No. 18-0098 (issued August 13, 2018); P.W.,
Docket No. 17-0514 (issued June 9, 2017).
9
R.J., Docket No. 19-0179 (issued May 26, 2020); Y.A., Docket No. 16-0258 (issued April 13, 2016); Amelia S.
Jefferson, 57 ECAB 183 (2005).

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Dr. Shreiber further provided narratives dated July 31, 2018 to May 14, 2019. He indicated
that he recently evaluated appellant on May 1, 2018 for complaints of increasing lower back pain
that began at work. Dr. Schreiber opined that this injury appeared to be more of a new workers’
compensation injury, rather than an exacerbation of the old one. Likewise, in his June 18 and
August 3, 2018 reports, Dr. Hung reported that appellant had a “new workmen’s compensation
injury after repetitive bending and lifting” on February 7, 2018. The Board finds that this evidence
fails to establish appellant’s recurrence of disability claim, as Drs. Shreiber and Hung attributed
appellant’s inability to work to a new, intervening event on February 6, 2018 and not appellant’s
accepted August 12, 2002 employment injury.10
As appellant has not submitted sufficient medical evidence to establish that he was disabled
from work beginning February 7, 2018 and continuing, due to a spontaneous change or worsening
of his November 12, 2002 employment injury, the Board finds that he has not met his burden of
proof to establish his claim.11
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing February 7, 2018, causally related to his accepted November 12, 2002
employment injury.

10

Supra note 4; see also M.C., Docket No. 19-1074 (issued June 12, 2020); T.W., Docket No. 19-0677 (issued
August 16, 2019).
11

See R.A., Docket No. 19-1595 (issued August 13, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 17-1998
Issued: March 5, 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 September 25, 2017 appellant filed a timely appeal from an August 9, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated March 15, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.3

1

Appellant submitted additional evidence after OWCP rendered its August 9, 2017 decision. The Board’s
jurisdiction, however, is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 15, 2016 appellant, then a 43-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that, on June 13, 2016, he stepped on a crack on a sidewalk and
sprained his right knee. He first received medical treatment on the date of injury and stopped
work on June 14, 2016.
In an accompanying narrative statement, appellant reported that on June 13, 2016 he was
delivering mail on his route when he stepped into a crack/hole in the ground and turned his right
ankle causing his right knee to shift to the right. He related that he tried to smack his kneecap
back into the middle of his knee which resulted in his left knee giving out and causing him to
fall. Appellant immediately notified his supervisor and called for an ambulance to seek
emergency medical treatment at St. Barnabas Hospital.
In a June 13, 2016 St. Barnabas Hospital emergency department report, Dr. Paul Boyer, a
treating physician, reported that appellant stepped on a cracked floor and twisted his bilateral
knees. He recommended x-rays and diagnosed bilateral knee pain.
In medical and work status reports dated June 15 through 30, 2016, Dr. Louis Rose, a
Board-certified orthopedic surgeon, reported that on June 13, 2016 appellant was delivering mail
when he stepped into a hole covered by grass causing his right ankle to turn and his knee to shift.
He diagnosed bilateral knee pain and bilateral derangement of unspecified medial meniscus due
to old tear or injury.
In a development letter dated July 12, 2016, OWCP notified appellant that his claim was
initially administratively handled to allow medical payments, as it appeared to involve only a
minor injury resulting in minimal or no lost time from work. However, the merits of his claim
had not been formally considered and his claim had been reopened for consideration of the
merits because he had not returned to work. OWCP informed him that the evidence of record
was insufficient to establish his traumatic injury claim. It advised appellant of the medical and
factual evidence needed and afforded him 30 days to submit the additional evidence.
On August 9, 2016 appellant noted submission of additional medical evidence based on
OWCP’s development letter. In support of his claim he submitted an August 9, 2016 medical
report from Dr. Rose.
By decision dated August 12, 2016, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that his diagnosed condition was causally related to the
accepted June 13, 2016 employment incident.

2

On September 10, 2016 appellant requested an oral hearing before an OWCP hearing
representative and argued that the June 13, 2016 incident caused his injury.4 In support of his
claim, appellant submitted medical reports dated September 20 through December 12, 2016 from
Dr. Rose documenting treatment for internal derangement of the right and left knee.
A hearing was held on January 12, 2017. Appellant testified that he had a prior workrelated left knee injury from December 17, 2007 under OWCP File No. xxxxxx714. He
underwent surgery for his left knee conditions on August 28, 2008 and February 18, 2010,
subsequently returning to part-time light-duty work on May 10, 2012. Appellant noted no prior
right knee injuries. He recounted the June 13, 2016 employment incident, explaining that he was
delivering mail and walking on the sidewalk which was covered with cracks and holes. As
appellant was walking, he stepped into a crack/hole in the ground that was covered by grass,
causing him to turn his ankle and shift his right knee to the right. He attempted to smack his
right kneecap back in when his left knee gave out, causing him to fall to the floor. The hearing
representative noted that it was unclear whether appellant stepped in a crack or a hole as he was
citing both. Appellant stated that it was a crack in the ground. The hearing representative asked
for clarification as to why he sometimes referenced it as a hole. Appellant reported that he went
back to the site of the employment incident with an attorney who took pictures of where he fell
and saw that grass was covering the crack in the ground. When the grass was pulled out it was
revealed to be a hole in the ground. The record was held open for 30 days.
By letter dated February 10, 2017, counsel noted submission of a pleading, appellant’s
January 16, 2017 affidavit, and a January 19, 2017 medical report from Dr. Joshua Macht,
Board-certified in internal medicine, in support of his traumatic injury claim. In the pleading,
counsel reported that appellant was delivering mail on June 13, 2016 when he stepped in a hole
in the pavement, resulting in his right ankle to turn and his right knee to shift. He noted that the
hole was covered with grass so it only appeared to be a crack at the time of the injury. Counsel
further noted submission of additional medical evidence in support of appellant’s claim,
including a medical report from Dr. Macht who provided a comprehensive medical history with
regard to appellant’s prior left knee injury, discussion of diagnostic testing, and an opinion on
causal relationship relating to appellant’s bilateral knee sprain as a result of the June 13, 2016
employment incident.
In a January 16, 2017 affidavit, appellant reported that on June 13, 2016 he was
delivering mail when he stepped in a hole in the pavement, resulting in his right ankle to turn and
right knee to shift to the right side of his leg. He noted that the hole was covered with grass so it
only appeared to be a crack at the time. Appellant discussed the employment incident and his
subsequent course of treatment.
In a January 19, 2017 medical report, Dr. Macht discussed the January 13, 2016
employment incident when appellant was delivering mail and stepped into a hole in the ground
on the sidewalk. He diagnosed bilateral knee sprain and discussed appellant’s medical history,
diagnostic reports, and physical examination findings.
4

Following his request for an oral hearing, appellant submitted an authorization for representation from
Stephen J. Dunn, Esq. to handle all matters arising out of his workers’ compensation claim.

3

Following the hearing, appellant submitted additional medical evidence in support of his
claim, including a June 6, 2009 left knee MRI scan, August 28, 2008 and February 18, 2010 left
knee operative reports, and reports dated November 15, 2016 through March 1, 2017
documenting treatment with Dr. Rose.
By decision dated March 15, 2017, the hearing representative affirmed the August 12,
2016 decision, as modified, finding that the evidence of record failed to establish that the
June 13, 2016 employment incident occurred as alleged. It noted that appellant had provided
contradictory statements and testimony pertaining to the history of injury and whether he stepped
in a crack or a hole covered by grass.5 The hearing representative further noted that the
mechanism of injury was unclear, and as such the medical evidence could not establish the
claim. Upon return of the case record, the hearing representative instructed OWCP to combine
the current claim with OWCP Nos. xxxxxx714 and xxxxxx288 as the claims all involved knee
injuries.6
On April 17, 2017, appellant requested reconsideration of OWCP’s decision. He noted
that he would like to submit an addendum from Dr. Macht in support of his claim. Appellant
further noted that he would also like to submit pictures from the site of his June 13, 2016 injury
which showed the sidewalk where he was injured. He explained that the evidence would show
why he called the area a hole/crack during his testimony. Appellant reported that, after the grass
was removed from this area, it showed a crack in the pavement with a hole 1.5 inches deep. He
argued that his previous testimony about the area where he was injured should coincide with the
evidence submitted. Appellant further discussed his prior workers’ compensation claims and
argued that he sustained a new injury on June 13, 2016. This new evidence was received in the
master file on April 17, 2017.
An April 11, 2017 medical report was received from Dr. Rose documenting appellant’s
course of treatment.
By decision dated August 9, 2017, OWCP denied appellant’s request for reconsideration,
finding that he neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant a merit review. It noted that his April 12, 2017 statement was
substantially similar to his June 14, 2016 statement and January 16, 2017 affidavit which were
previously considered. OWCP further noted, that while his statement indicated that he was
submitting new evidence, including pictures and an addendum from Dr. Macht, no such evidence
was received.

5

OWCP’s hearing representative noted a prior December 17, 2007 left knee injury when appellant slipped on a
piece of ice on the stairs which was accepted for internal derangement of left knee under OWCP File No.
xxxxxx714. Appellant underwent arthroscopic surgeries on August 28, 2008 and February 18, 2010. The hearing
representative also noted an October 17, 2013 occupational disease claim for the left knee which was denied on
January 23, 2014 for failing to establish fact of injury.
6
A memo to file dated April 6, 2017 notes that the three files were combined per the instructions of the hearing
representative, with OWCP File No. xxxxxx714 serving as the master file.

4

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.7 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.8
ANALYSIS
The Board finds that this case is not in posture for decision.9
In its August 9, 2017 denial of appellant’s reconsideration request, OWCP noted that the
only evidence submitted was an April 11, 2017 medical report from Dr. Rose and appellant’s
April 12, 2017 narrative statement which was cumulative and substantially similar to evidence
already contained in the case file, and previously considered. It noted that, while his statement
indicated that he was submitting new evidence, including pictures and an addendum from
Dr. Macht, no such evidence was received. Thus, OWCP denied merit review of his claim
finding that he failed to submit any relevant and pertinent new evidence addressing fact of injury
sufficient to warrant a merit review.10
However, the record reflects that OWCP received new evidence from appellant prior to
the issuance of its August 9, 2017 decision. The Board notes that appellant submitted evidence
in support of his claim including medical reports and documents from the employing
establishment regarding modified work duties, offers of modified assignments, and notice of
separation. Appellant also submitted his April 12, 2017 narrative statement requesting
reconsideration, as well as photographs documenting the location of the June 13, 2016
employment incident and a March 21, 2017 medical report from Dr. Macht. The Board notes
that the documents submitted in support of appellant’s reconsideration request were filed under
the master file, OWCP File No. xxxxxx714, and received by OWCP on April 17, 2017.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim, which was properly submitted to OWCP
prior to the time of issuance of its final decision, be reviewed and addressed by OWCP.11 In its
7

20 C.F.R. § 10.606(b)(3); see also D.K., 59 ECAB 141 (2007).

8

Id. at § 10.608; see also K.H., 59 ECAB 495 (2008).

9

J.W., Docket No. 13-1666 (issued August 18, 2014).

10

M.H., Docket No. 13-2051 (issued February 21, 2014).

11

See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not
consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994)
(applying Couch where OWCP did not consider a medical report received on the date of its decision).

5

August 9, 2017 decision, OWCP did not review the additional evidence submitted in support of
appellant’s claim as it found that the record did not contain an addendum report from Dr. Macht
or pictures as indicated in appellant’s April 12, 2017 reconsideration request. Because OWCP
did not consider the new evidence submitted by appellant on reconsideration, the Board cannot
review such evidence for the first time on appeal.12
The Board finds that this case is not in posture for a decision. This case will be remanded
to OWCP to review and consider appellant’s evidence which was properly submitted prior to the
August 9, 2017 decision. Following this and such other development as deemed necessary,
OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2017 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion.
Issued: March 5, 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

12

20 C.F.R. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
JOHN F. KENNEDY INTERNATIONAL
AIRPORT, Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-0507
Issued: October 6, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 17, 2021 appellant, through counsel, filed a timely appeal from an October 15,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 15, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted April 28, 2019
employment injury.
FACTUAL HISTORY
On April 28, 2019 appellant, then a 58-year-old customs and border patrol officer, filed a
traumatic injury claim (Form CA-1) alleging that on that date he slipped when pulling a postal
container and injured his back, left foot, and ankle while in the performance of duty. He did not
immediately stop work.
On May 13, 2019 Dr. Gus Katsigiorgis, a Board-certified orthopedist, treated appellant for
a work-related injury to his back, left foot, and ankle that occurred on April 28, 2019 when he was
hit by a mail postal container. Findings on examination revealed paraspinal muscle tenderness,
tenderness about the Achilles, and medially about the ankle. X-rays of the left ankle, left foot,
lumbar spine, and pelvis demonstrated no sign of obvious fracture. Dr. Katsigiorgis diagnosed
lumbar, left ankle and left foot sprain, lumbar spine pain, pain of ligaments of lumbar spine initial
encounter, sprain of other ligament of the left ankle, and left foot pain. He returned appellant to
restricted duties. In an attending physician’s report (Form CA-20) dated May 14, 2019,
Dr. Katsigiorgis indicated that appellant was injured at work on April 28, 2019 and diagnosed
lumbar pain and sprain of left foot and ankle. He affirmed that the diagnosed conditions had been
caused or aggravated by the described employment incident. Dr. Katsigiorgis treated appellant
again on May 24, 2019 for low back and left ankle pain. He noted tenderness of the left ankle and
lumbar spine and paraspinal muscle tenderness. Dr. Katsigiorgis indicated that appellant was
disabled from work. In a work excuse form of even date, he noted that appellant was treated for a
back and left ankle condition and was totally disabled.
A magnetic resonance imaging (MRI) scan dated May 15, 2019 of the left ankle revealed
thickening of the lateral ligaments compatible with healed partial tears, Achilles te ndinopathy with
low grade linear interstitial tears proximal to the superior calcaneal process with a 10-millimeter
moderate grade tear at the insertion, per tendinitis, bursitis, impaction injury of the anterior central
distal tibia, and marrow edema.
On June 5, 2019 Dr. Kanwarpaul Grewal, a Board-certified orthopedist, treated appellant
for lower and mid back pain that developed on April 28, 2019 after a fall at work. Findings on
examination revealed antalgic gait, tenderness to palpation of the thoracic spine, and limited range
of motion of the lumbar spine. Dr. Grewal reviewed the MRI scan of the lumbar spine, which
showed a minor slip at L4-5 and noted “nothing of concern and unrelated to issues presented by
patient.” He diagnosed acute lumbar strain. Dr. Grewal saw appellant in follow-up on June 10
and July 1, 2019 for low back pain attributed to a fall that occurred at work on April 28, 2019. He
diagnosed acute lumbar strain. Dr. Grewal performed a trigger point injection on June 10, 2019.
In work excuse forms dated June 10 and July 1, 2019, he treated appellant for thoracic and lumbar
strain and advised that appellant was totally disabled.
In a July 9, 2019 development letter, OWCP advised appellant of the deficiencies of his
claim and requested additional factual and medical evidence. It afforded him 30 days to respond.
2

On June 25, 2019 appellant underwent an MRI scan of the thoracic spine, which revealed
compressive presumptive calcified thoracic disc herniation at T9 -10 and thoracic degenerative
disease.
Appellant was seen again by Dr. Katsigiorgis on July 10, 2019 for persistent low back and
left ankle pain. He reported new left knee pain that he attributed to the way he has been walking.
Findings on examination revealed paraspinal muscle tenderness, restricted range of motion,
antalgic gait, and tenderness of the left ankle. Dr. Katsigiorgis diagnosed left ankle derangement,
lumbar derangement, left knee tendinitis compensatory to antalgic gait, sprain of other ligament
of the left ankle, sprain of ligaments of lumbar spine, and sprain of other parts of the left knee. In
a July 10, 2019 work excuse note, Dr. Katsigiorgis advised that he remained totally disabled. In
an attending physician’s report (Form CA-20) dated July 11, 2019, he affirmed that the diagnosed
conditions were caused or aggravated by the described employment incident. On August 28, 2019
Dr. Katsigiorgis released appellant to light-duty modified work on September 1, 2019 with no
heavy lifting.
In an attending physician’s report (Form CA-20) dated July 30, 2019, Dr. Grewal
referenced his July 1, 2019 report. He examined appellant on August 12, 2019 for persistent low
back pain, which improved with conservative treatment. Dr. Grewal provided a history of the
April 28, 2019 work injury noting that appellant had a twisting injury to the left leg leading to a
fall. He opined that the left knee is likely strained from that injury since the pain persisted since
that time. Dr. Grewal diagnosed acute lumbar strain improving, thoracic disc herniation with
radiculopathy, and left knee pain.
In response to the development letter, on August 1, 2019 appellant indicated that at the
time of the injury he was performing official duties as a custom and border patrol officer at the
post office in the employing establishment. He noted that after the injury occurred he experienced
immediate pain in the left ankle and back. Appellant advised that he did not sustain any other
injury between the date of injury and date first reported to his supervisor. He noted that his
condition had worsened prohibiting him from walking or sleeping. 4
On September 4, 2019 the employing establishment offered appellant a temporary limitedduty position, eight hours a day, with the same pay as his current salary. The position was subject
to the restrictions set forth by appellant’s treating physician.
In a report dated September 14, 2019, Dr. Manoj Sadhnani, a podiatrist, treated appellant
for an injury to his left foot and left ankle/heel sustained at work on April 8, 2019. He noted that
an MRI scan revealed tearing of the left heel Achilles tendon and prominent bone spur on the
posterior left heel. Dr. Sadhnani noted that x-rays of the left foot revealed no fracture, but
calcification of posterior left heel. He diagnosed strain of left Achilles tendon and calcaneal spur,

4

OWCP referred appellant’s case file to Dr. James Caviness, a Board-certified physiatrist and OWCP medical
review physician. In a report dated August 19, 2019, Dr. Caviness noted reviewing the medical records, but not
examining appellant. He indicated that he could not tell from the medical notes which muscles were being injected
or the medical necessity of these procedures. Dr. Caviness advised that there was no sound medical rationale in the
recent notes or on file for appellant being off work and recommended referral to a district medical adviser or second
opinion physician to evaluate the work relationship, medical necessity of trigger point injections, and his capacity to
work.

3

left foot. Dr. Sadhnani recommended surgical debridement of frail tendon , repair of Achilles
tendon, and excision of spur and bony prominence left heel.
By decision dated September 18, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not established causal relationship between his diagnosed conditions and his
accepted April 28, 2019 employment incident.
Appellant subsequently submitted additional evidence. Dr. Katsigiorgis continued to treat
appellant through August 28, 2019 for persistent low back, left ankle, and left knee pain. He noted
paraspinal muscle tenderness, tenderness about the left Achilles, antalgic gait, and positive
patellofemoral femoral pain of the left knee. Dr. Katsigiorgis diagnosed sprain of the ligaments
of the lumbar spine, sprain of other ligament of the left ankle, and sprain of other specified parts
of the left knee. He noted that appellant could resume light-duty work.
On September 26, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. By letter dated October 11, 2019,
appellant withdrew his request for an oral hearing and requested OWCP proceed with adjudication
of his claim for reconsideration.
In reports dated January 15, June 10, and July 15, 2020, Dr. Grewal treated appellant in
follow-up for his work injury and related continued lower back pain that occasionally radiates
down the right leg. Appellant reported having left knee surgery on November 1, 2019 and left
Achilles surgery on December 11, 2019. He diagnosed improving acute lumbar strain, improving
thoracic disc herniation with radiculopathy, left knee pain, and Achilles pain. In a report dated
February 24, 2020, Dr. Grewal noted that appellant was postoperative left knee arthroscopy and
left Achilles tendon debridement and had limited mobility. In an addendum dated July 21, 2020,
he advised that, due to compressive disc herniation in the thoracic spine, chronic pain management
needs with injections, and potential surgery, appellant was not an ideal candidate for police or
correction work. Dr. Grewal opined that appellant’s injury was causally related to the fall on
April 28, 2019 and as a result appellant has developed significant limitations secondary to his
work-related injury. He opined that his treatment and injury to the spine was associated with direct
trauma associated with the fall.
In an April 20, 2020 report, Dr. Craig S. Radnay, a Board-certified orthopedist, noted
treating appellant since February 15, 2017 for left posterior ankle pain. Appellant reported being
an active runner who would run four to five times a week around six to sev en miles. He noted
x-rays of the left foot and left ankle at that time revealed evidence of a small Achilles insertional
spur with Haglund’s deformity. Dr. Radnay diagnosed left Achilles insertional tendinopathy with
gastrocnemius contracture. He treated appellant again on September 25, 2019 for left Achilles
tendon pain and left knee pain. Appellant reported pulling something heavy at work and he slipped
and fell. Dr. Radnay reviewed the MRI scan of the left ankle dated May 15, 2019 and opined that
appellant’s recent work injury exacerbated appellant’s condition. He recommended a left Achilles
tendon debridement, repair with resection of Haglund’s deformity, and gastrocnemius recession
and bursectomy. Dr. Radnay indicated that the Achilles tendinopathy pain occurred secondary to
appellant’s work as a police officer, the recent fall in April 2019, and after a cart that rolled over
posterior left ankle at work causing appellant to fall. He reviewed an MRI scan of the left knee
from October 2, 2019, which revealed a medial meniscus tear along the inferior articular surface
with a flap tear of the body and posterior horn from the inferior articular surface. Dr. Radnay
indicated that since appellant’s injury in April 28, 2019 appellant remained very tender with
4

limited mobility. On October 29, 2019 he performed a left knee arthroscopic partial medial
meniscectomy with arthroscopic partial synovectomy, arthroscopic excision of the medial plica,
arthroscopic debridement, chondroplasty of the medial femoral condyle, medial tibial plateau, and
femoral trochlea. On December 11, 2019 Dr. Radnay performed a left Achilles tendon
debridement with repair of chronic Achilles insertional tendinopathy with left Achilles
gastrocnemius recession and a left calcaneus exostectomy and saucerization. Appellant developed
a deep vein thrombosis after surgery. Dr. Radnay treated appellant on January 29 and March 11,
2020 and noted that he transitioned into a weight-bearing shoe, but experienced neuritis symptoms
consistent with decreased sensation along the sural nerve.
By decision dated October 15, 2020, OWCP accepted appellant’s claim for lumbar sprain,
lumbar strain, thoracic strain, left ankle sprain, left knee sprain, and left Achilles strain.
By separate decision dated October 15, 2020, OWCP vacated the decision dated
September 18, 2019 in part, accepting that the conditions of lumbar sprain, lumbar strain, thoracic
strain, left knee sprain, left ankle sprain, and left Achilles strain were caused by the work injury
on April 28, 2019. However, it found that the evidence of record was insufficient to establish that
the remaining orthopedic conditions including thoracic disc herniation with radiculopathy,
compressive disc herniation of the thoracic spine, left Achilles insertional tendinopathy, left knee
tear, left foot calcaneal spur, left ankle internal derangement, lumbar derangement, and left knee
tendinitis were caused by the April 28, 2019 work injury.
LEGAL PRECEDENT
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5
To establish causal relationship between the condition as well as any additional conditions
claimed and the employment injury, an employee must submit rationalized medical evidence. 6
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish the expansion
of the acceptance of his claim to include additional conditions as causally related to the accepted
April 28, 2019 employment injury.
OWCP accepted appellant’s claim for lumbar sprain, lumbar strain, thoracic strain, left
ankle sprain, left knee sprain, and left Achilles strain. However, it denied expansion of the
5

M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
7

T.K., id.; I.J., 59 ECAB 408 (2008).

5

acceptance of his claim to include additional diagnosed conditions as his physicians had not
provided sufficient medical rationale explaining how the April 28, 2019 employment injury caused
or contributed to the additional diagnosed conditions.
Appellant was treated by Dr. Katsigiorgis on May 13 and August 28, 2019 for a workrelated injury to his back, left foot, and ankle that occurred on April 28, 2019 when he was hit by
a mail postal container. Dr. Katsigiorgis diagnosed lumbar, left ankle and left foot sprain, lumbar
spine pain, sprain of ligaments of lumbar spine initial encounter, sprain of other ligament of the
left ankle, and left foot pain. Similarly, Dr. Grewel saw appellant in follow-up on June 10 and
July 1, 2019 for low back pain attributed to a fall that occurred at work on April 28, 2019. He
diagnosed acute lumbar strain and performed a trigger point injection. In reports dated January 15,
February 24, June 10, and July 15, 2020, Dr. Grewal treated appellant in follow-up for his work
injury. Appellant reported having left knee surgery on November 1, 2019 and left Achilles surgery
on December 11, 2019. Dr. Grewal diagnosed acute lumbar strain, thoracic disc herniation with
radiculopathy, left knee pain, and Achilles pain. These reports are of no probative value as to
whether acceptance of the claim should be expanded as they do not address the additional
diagnosed conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.8
Dr. Katsigiorgis treated appellant on May 24 and July 10, 2019 for low back and left ankle
pain and noted that appellant was totally disabled from work. Appellant was seen again by
Dr. Katsigiorgis on July 10, 2019 for persistent low back and left ankle pain and new left knee
pain. Dr. Katsigiorgis diagnosed left ankle derangement, lumbar derangement, left knee tendinitis
compensatory to antalgic gait, sprain of other ligament of the left ankle, sprain of ligaments of
lumbar spine, and sprain of other parts of the left knee, but offered no opinion as to the cause of
these diagnosed conditions. Similarly, in work excuse forms dated June 10 and July 1, 2019,
Dr. Grewal treated appellant for thoracic and lumbar strain and advised that he was totally
disabled. An opinion which does not address the cause of an e mployee’s condition is of no
probative value on the issue of causal relationship.9 As the reports of Drs. Katsigiorgis and Grewel
do not offer an opinion on causal relationship, they are of no probative value and, thus, insufficient
to establish the expansion of the acceptance of appellant’s claim.
In attending physician’s reports (Form CA-20) dated May 14 and July 11, 2019,
Dr. Katsigiorgis affirmed that the condition was caused or aggravated by an employment activity.
However, the Board has held that an affirmative opinion on causal relationship, without more by
way of medical rationale, is insufficient to establish the claim.10 Therefore, the Board finds that
these reports are insufficient to establish appellant’s burden of proof.
On June 5, 2019 Dr. Grewal treated appellant for lower and mid back pain that developed
on April 28, 2019 after a fall at work while pulling a mail cart. He reviewed an MRI scan of the
lumbar spine and stated the findings were “nothing of concern and unrelated to issues presented
8

See S.H., Docket No. 19-1128 (issued December 2, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
9

Id.

10

See R.H., Docket No. 20-1684 (issued August 27, 2021); C.S., Docket No. 18-1633 (issued December 30, 2019);
Donald W. Long, 41 ECAB 142 (1989); Lillian M. Jones, 34 ECAB 379, 381 (1982).

6

by patient.” This report is insufficient to establish the expansion of the acceptance of appellant’s
claim for additional lumbar conditions as he does not attribute the conditions to the April 28, 2019
work injury, rather he opined that the “minor slip at L4-5” was unrelated to the issues presented
by appellant.
Dr. Grewel examined appellant on August 12, 2019 and provided a history of the April 28,
2019 work injury. He opined that the left knee was likely strained from that injury since the pain
was persistent since that time. The Board has held that an opinion that a condition is causally
related to an employment injury because the employee was asymptomatic before the injury is
insufficient, without supporting rationale, to support a causal relationship. 11
In an addendum report dated July 21, 2020, Dr. Grewel opined that appellant’s injury was
causally related to the fall on April 28, 2019. He opined that appellant’s treatment and injury to
the spine was associated with direct trauma associated with the fall. While Dr. Grewel provided a
conclusory opinion, he did not explain, with rationale, how the accepted employment injury had
caused or aggravated additional lumbar conditions. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how a given medical condition/disability was causally related to employment factors. 12
In a report dated September 14, 2019, Dr. Sadhnani treated appellant for an injury to
appellant’s left foot and left ankle/heel sustained at work on April 8, 2019; however, appellant’s
injury occurred on April 28, 2019. The Board has held that medical opinions based on an
incomplete or inaccurate history are of limited probative value. 13 Therefore, this report is
insufficient to meet appellant’s burden of proof.
In an April 20, 2020 report, Dr. Radnay noted treating appellant since February 15, 2017
for left posterior ankle pain attributed to being an active runner. He diagnosed left Achilles
insertional tendinopathy with gastrocnemius contracture. Dr. Radnay treated appellant again on
September 25, 2019 and opined that appellant’s recent work injury exacerbated his condition. He
indicated that the Achilles tendinopathy pain occurred secondary to appellant’s work as a police
officer, the recent fall in April 2019, and after a cart that rolled over posterior left ankle at work
causing appellant to fall. While his opinion is supportive of causal relationship, Dr. Radnay did
not provide sufficient medical rationale explaining the basis of his opinion on causal relationship. 14
He did not explain how the mechanism of injury would have physiologically caused or aggravated
the additional diagnosed conditions. 15 As noted, the failure to provide medical rationale in support
of a causation finding, results in the determination that Dr. Radnay’s report is insufficient to
establish appellant’s burden of proof.16

11

J.F., Docket No. 19-1694 (issued March 18, 2020); Kimper Lee, 45 ECAB 565 (1994).

12

A.L., Docket No. 18-1706 (issued May 20, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017).

13

G.E., Docket No. 19-1190 (issued November 26, 2019); T.O., Docket No. 17-0093 (issued March 22, 2018).

14

C.V., Docket No. 18-1106 (issued March 20, 2019); M.E., Docket No. 18-0330 (issued September 14, 2018);
A.D., 58 ECAB 149 (2006).
15

See J.B., Docket No. 19-1042 (issued November 8, 2019); J.K., Docket No. 19-0462 (issued August 5, 2019).

16

M.C., Docket No. 18-0361 (issued August 15, 2018).

7

Appellant submitted multiple diagnostic testing reports. The Board has held that diagnostic
studies, standing alone, are of limited probative value as they do not address whether the
employment injury caused any of the diagnosed conditions.17
As the medical evidence of record is insufficient to establish causal relationship, the Board
finds that appellant has not met his burden of proof to establish that his claim should be expanded
to accept the additional medical conditions. 18
On appeal appellant asserts that he submitted sufficient evidence to support expansion of
his claim. As explained above, the medical evidence of record is insufficient to establish that the
acceptance of the claim should be expanded to include additional conditions.
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 the
acceptance of his claim should be expanded to include additional conditions causally related to the
accepted April 28, 2019 employment injury.

17

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

18

A.T., Docket No. 19-1608 (issued April 21, 2020).

8

ORDER
IT IS HEREBY ORDERED THAT the October 15, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


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

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Appearances:
Brett Elliot Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0033
Issued: March 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 11, 2016 appellant, through counsel, filed a timely appeal from a
September 2, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

Counsel contends on appeal that appellant has submitted sufficient medical evidence to
warrant acceptance or further development of her claim.
FACTUAL HISTORY
On May 26, 2015 appellant, then a 59-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed spondylolysis and spondylolisthesis due to her
federal job duties. She first realized that her condition was due to her employment on
May 12, 2015. Appellant reported that her condition caused difficulties with walking, sitting,
and standing for long periods of time. She noted that casing mail, with lifting and twisting,
increased her back pain. Appellant also reported that loading her mail truck was difficult due to
severe pain from bending and lifting trays of mail. She noted that sitting in her truck increased
her back pain.
In a report dated May 26, 2015, Dr. David E. Adelberg, a Board-certified orthopedic
surgeon, indicated that appellant’s symptom of back pain began about three months earlier. He
diagnosed lumbar spondylolisthesis at L5-S1.
In a letter dated June 25, 2015, OWCP requested that appellant provide additional factual
and medical evidence in support of appellant’s occupational disease claim. It indicated that she
should respond to this request within 30 days.
On July 7, 2015 the employing establishment noted that appellant had a mounted route
driving for seven hours a day. Appellant was required to walk the remaining hour while casing
her mail.
Appellant responded to OWCP on July 23, 2015 and described her job duties of twisting
and turning while casing mail. She noted that she was required to bend to place the mail in her
hamper. Appellant next lifted flats of mail from racks which ranged from overhead to floor level
and bent to place these in her hamper. She was then required to load her truck from her hamper
and to proceed to start her truck and deliver her route. Appellant noted that delivering packages
caused additional strain on her back because she was required to pull up the emergency brake.
Once her deliveries were completed, in approximately six hours, she then unloaded her truck.
Appellant alleged that she was frequently required to work more than eight hours a day and on
her days off, as the employing establishment was short staffed.
On July 21, 2015 Dr. Priscilla Shube, a Board-certified family practitioner, diagnosed
spondylolisthesis, spinal stenosis, and left L5-S1 radiculopathy. She opined that appellant’s
symptoms were aggravated by activities at work including walking, prolonged sitting, bending,
and lifting.
In a decision dated August 27, 2015, OWCP denied appellant’s claim finding that the
medical evidence did not establish that her diagnosed condition was caused or aggravated by her
employment duties.
Counsel requested reconsideration on June 10, 2016 and submitted additional medical
evidence.

2

In a report dated May 17, 2016, Dr. Byron V. Hartunian, an orthopedic surgeon, noted
that appellant had worked at the employing establishment for 30 years and described her duties
as a letter carrier including lifting, carrying, and moving up to 70 pounds. Appellant was
required to perform repetitive climbing, squatting, bending, twisting, stooping, lifting, and
reaching. Dr. Hartunian noted examination findings and reviewed her x-rays and magnetic
resonance imaging scan. He diagnosed degenerative spondylolisthesis at L5-S1, herniated L45 and L5-S1 discs, lumbar degenerative facet and disc disease, and bilateral L4 and L5
radiculopathy. Dr. Hartunian opined that appellant’s diagnosed conditions were permanently
aggravated, accelerated, contributed to, and precipitated by her repetitive work as a letter carrier.
He described the process by which degenerative arthritis and disc disease occurs including
impact loading resulting from repeated local stresses and causing chronic inflammation.
Dr. Hartunian noted that appellant’s job required impact loading activities such as
constant and repetitive walking, standing, squatting, stooping, climbing, bending, lifting,
carrying, and twisting activities. He opined that excessive impact loading and repeated local
stresses caused mechanical stress on cartilage and disc surfaces resulting in chronic inflammation
and then accelerated loss of articular cartilage and disc structure. Dr. Hartunian provided
citations to medical publications in support of his opinions. He opined that appellant’s spinal
arthritis and disc degeneration would not have reached the point it had, but for her work
activities. Dr. Hartunian concluded that her degenerative spine disease, herniated discs, and
spondylolisthesis were hastened and accelerated by her work. He further noted that lower
extremity loading activities such as repeated walking, standing, bending, kneeling, lifting,
climbing, stooping, pushing, pulling, twisting, squatting, and carrying as required by appellant’s
position contributed to the development and progression of spinal arthritis and disc degeneration.
By decision dated September 2, 2016, OWCP denied modification of the August 27,
2015 decision. It found that Dr. Hartunian’s report did not explain how appellant’s conditions
were permanently aggravated, contributed to, or precipitated by her work activities.
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 causal relationship
3

20 C.F.R. § 10.5(q).

3

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 this case not in posture for a decision.
In support of her claim for an occupational disease resulting in the diagnosed conditions
of degenerative spondylolisthesis at L5-S1, herniated L4-5 and L5-S1 discs, lumbar degenerative
facet and disc disease, and bilateral L4 and L5 radiculopathy, appellant submitted reports from
Drs. Adelberg and Shube. These report, however, provided no opinion on causal relationship.
Thus, the Board finds that they are of no probative value and are insufficient to establish the
claim.5
On reconsideration, appellant submitted a detailed report from Dr. Hartunian dated
May 17, 2016. Dr. Hartunian described her job duties of lifting, carrying, climbing, squatting,
bending, twisting, stooping, and reaching. He provided an opinion that appellant’s employment
duties contributed to her diagnosed conditions as her spinal arthritis and disc degeneration would
not have reached the point it had, but for her work activities. Dr. Hartunian concluded that her
degenerative spine disease, herniated discs, and spondylolisthesis were hastened and accelerated
by her work. He also provided a detailed explanation of how and why appellant’s repetitive
employment duties resulted in excessive impact loading and repeated local stresses, which in
turn caused mechanical stress on cartilage and disc surfaces resulting in chronic inflammation
and then accelerated loss of articular cartilage and disc structure.
Dr. Hartunian’s report contains a history of injury, diagnosis and an opinion that
appellant’s preexisting condition was exacerbated and accelerated by the accepted employment
duties. While this report is not sufficient to meet her burden of proof, it does raise an
uncontroverted inference of causal relation between her accepted employment factors and an
exacerbation of her diagnosed condition sufficient to require further development of her claim.6
On remand OWCP should refer appellant, a statement of accepted facts, and a list of
specific questions to an appropriate physician for a second opinion evaluation to determine if her
diagnosed conditions of degenerative spondylolisthesis at L5-S1, herniated L4-5 and L5-S1
discs, lumbar degenerative facet and disc disease, and bilateral L4 and L5 radiculopathy were
exacerbated and accelerated by the accepted employment duties. After this and such other
development as OWCP deems necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
4

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

5

Willie M. Miller, 53 ECAB 697 (2002).

6

John J. Carlone, 41 ECAB 354, 358-60 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the September 2, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: March 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., widow of L.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Long Beach, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-240
Issued: March 26, 2015

Case Submitted on the Record

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

JURISDICTION
On November 12, 2014 appellant, through counsel, filed a timely appeal from a
September 4, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that the employee’s
death was causally related to his accepted employment injuries.
FACTUAL HISTORY
On November 25, 1981 the employee, then a 51-year-old boilermaker, injured his back
when pulling down on a rope to close a door which had jammed. OWCP accepted the claim for

1

5 U.S.C. § 8101 et seq.

thoracic strain and lumbar muscle spasm with right leg radiculitis. The employee stopped work
in 1982.
The employee died on June 9, 2009. On June 15, 2010 appellant filed a (Form CA-5)
claim for death benefits, alleging that her husband’s death was causally related to employment
factors.
This is the third appeal before the Board regarding appellant’s claim for death benefits.
The relevant facts are as follows.
In a May 22, 2009 hospital report/discharge summary, received by OWCP on August 17,
2010, Dr. Kenneth Shapiro, Board-certified in internal medicine, stated that the employee was
admitted on May 16, 2009, with an admission diagnosis of congestive heart failure. The
discharge diagnosis was congestive heart failure, with severe ischemic cardiomyopathy,
anasarca, chronic, and acute renal failure, diabetes, lower extremity ulcers in fact with
methicillin resistant staphylococcus aureus, and status post coronary artery bypass grafting.
Appellant submitted the employee’s death certificate which listed his causes of death on
June 9, 2009 as cardiopulmonary arrest, coronary artery disease, and with diabetes mellitus a
contributing factor.
In a June 2, 2010 report, Dr. Kesho N. Hurria, the employee’s attending physician, stated
that the effects of chronic hypertension were one of the leading risk factors for heart attack,
stroke, heart failure, and aneurysm. He stated that the employee was a chronic pain sufferer with
high blood pressure, which caused increased sensitivity to pain and frequently resulted in even
higher blood pressure. Dr. Hurria stated that the employee’s 1981 work injury led to a chronic
pain syndrome, which caused a chronic cardiac hypertension, which led to chronic edema to the
lower extremities, causing decreased circulation to the heart muscle. This caused hypertrophy to
the heart that eventually led to the employee’s coronary heart attack and coronary bypass surgery
in 2009. Dr. Hurria stated that the 1981 back injury resulted in chronic hypertension, leading to
coronary artery disease that led to the employee’s fatal cardiopulmonary arrest on May 23, 2009.
In a January 6, 2011 report, Dr. Ellen Pichey, an OWCP medical adviser, expressed her
disagreement with Dr. Hurria’s opinion. She opined that because the employee was 81 years of
age, had a triple bypass and pacemaker, diabetes, hypertension, and a family history of cardiac
disease, it was not reasonable to conclude that his death was a consequence of thoracic and
lumbar sprains and radiculitis from 30 years prior.
In a decision dated March 29, 2011, OWCP denied appellant’s claim, finding that the
evidence failed to establish that the employee’s death was due to factors of his federal
employment. By decision dated November 14, 2011, an OWCP hearing representative affirmed
the March 29, 2011 decision. In a September 20, 2012 decision,2 the Board set aside OWCP’s
decisions. The Board found that there was an unresolved conflict in the medical evidence
between Dr. Hurria and Dr. Pichey regarding whether the employee’s death was causally related
to employment factors. The Board remanded the case to OWCP for referral of appellant to an
2

Docket No. 12-861 (issued September 20, 2012).

2

appropriate impartial medical specialist to resolve the outstanding conflict in the medical
evidence.
Appellant was referred to Dr. Ram K. Setty, a Board-certified cardiologist, who
submitted an impartial medical report dated November 9, 2012. Dr. Setty stated that the risk
factors for coronary artery disease or hypertension were a family history of coronary artery
disease, diabetes mellitus, hypertension, cigarette smoking, and dyslipidemia. He asserted that
the available medical data indicated that acute pain from any reason, including anxiety, could
raise blood pressure. Dr. Setty advised that because the employee was treated for both back pain
and hypertension and did not have hypertension before experiencing back pain, it was possible
that his hypertension might have been caused by his back pain. He also indicated that
hypertension might have contributed in small part to the employee’s developing coronary artery
disease. Dr. Setty stated, however, that it was not the sole cause, as he had two major risk
factors, diabetes, and a family history of coronary artery disease. He expressed doubt as to
whether the employee’s back pain could cause hypertension, given that he was being treated for
back pain as well as mild hypertension, and given that his coronary artery disease was associated
with major, “heavyweight” risk factors like his family history of coronary artery disease and
diabetes. Dr. Setty stated that mild hypertension was hard to accept as the sole cause of coronary
artery disease, though it may have played a minor role.
By decision dated January 9, 2013, OWCP denied the claim for death benefits. It found
that Dr. Setty’s impartial medical opinion represented the weight of the medical evidence.
On May 16, 2013 an OWCP hearing representative affirmed the January 9, 2013
decision. In a November 6, 2013 decision,3 the Board set aside the hearing representative’s
May 16, 2013 decision. The Board, noting that it was not necessary under its case law to provide
a significant contribution of employment factors for the purpose of establishing causal
relationship, found that Dr. Setty’s opinion was insufficient to resolve the conflict in medical
evidence because he opined that hypertension caused by chronic pain might have played at least
a minor role in the development of coronary artery disease, resulting in the employee’s death.
The Board therefore found that his opinion required clarification as to whether the employee’s
death was due, in any part, to his accepted back condition. The Board set aside the May 16,
2013 decision of the hearing representative and directed OWCP on remand to ask Dr. Setty to
submit a report clarifying his opinion as to whether the employee’s death was causally related to
his 1981 work injury. The complete facts of this case are set forth in the Board’s September 20,
2012 and November 6, 2013 decisions and are herein incorporated by reference.
In an August 25, 2014 report, Dr. Setty opined that the employee’s death due to coronary
artery disease and diabetes was not causally related to the 1981 back injury. He stated:
“The issue, as I understand it is [c]hronic [p]ain -- producing hypertension
producing [c]oronary [a]rtery [d]isease. If this is true, much of our population
will have coronary artery disease, as back pain is very common.

3

Docket No. 13-1467 (issued November 6, 2013).

3

“The blood pressure does go up when there is pain -- a very common combination
we see always, especially in emergency rooms.… Even during acute heart attack,
in [emergency rooms] we see blood pressures going sky high and coming down to
base levels with a shot of morphine. What I am getting [at] here is [that] the
blood pressures do go up and down in many patients. We call this group as labile
hypertension or fluctuating blood pressure. [The employee] falls into this group.
In September 28, 1985, his blood pressure was reported as 130/82. In
December 6, 1995 it was 160/98. Now we can see a large difference even in
patients being treated. Obviously, the blood pressure in this patient is not a
persistent one to produce changes in the body to develop coronary artery disease.
“The other thing I brought up in my last letter is that [the employee] is under
constant medical care. We know [patients] treated [for] hypertension do a lot
better (twice as well) than untreated hypertension. Also [the employee] was on
many types of painkillers for his back all through. So when somebody has both
hypertension and back pain and is being treated by continuous medical attention it
is anybody’s guess that chronic pain has nothing to do in the development of
hypertension. [The employee] had his back injury in 1981 and open heart surgery
in 2007. Also, looking at his records, he goes to the hospital with chest pain in
August 2007 and during the same admission he had open heart surgery, meaning
he did not have significant coronary artery disease before. If back pain is to
produce coronary artery disease, [the employee] should have had symptoms of
coronary artery disease earlier.”
Dr. Setty further noted that the employee had a family history of diabetes, which, when
combined with hypertension and the subsequent development of coronary artery disease,
provided more than enough factors to produce a heart attack. He therefore concluded that there
was no chance for patients who have controlled pain stemming from a physical injury, like the
employee, to develop hypertension and coronary artery disease from the injury-related pain.
By decision dated September 4, 2014, OWCP denied the claim for death benefits. It
found that Dr. Setty’s impartial medical opinion represented the weight of the medical evidence.
LEGAL PRECEDENT
Appellant has the burden of proving by the weight of the reliable, probative, and
substantial evidence that the employee’s death was causally related to his federal employment.
This burden includes the necessity of furnishing medical opinion evidence of a cause and effect
relationship based on a proper factual and medical background.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.5 Rationalized medical opinion evidence is medical evidence which
4

Kathy Marshall (James Marshall), 45 ECAB 827, 832 (1994); Timothy Forsyth (James Forsyth), 41 ECAB 467,
470 (1990).
5

See Naomi A. Lilly, 10 ECAB 560, 572-73 (1959).

4

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,6 must be one of reasonable medical certainty,7 and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
It is not necessary to provide a significant contribution of employment factors for the
purpose of establishing causal relationship.9
Section 8123(a) provides that, if there is a 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.10 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.11
ANALYSIS
The Board finds that appellant failed to establish that the employee’s death was causally
related to his work-related injuries. In his August 25, 2014 report, Dr. Setty stated that the
employee’s chronic pain resulting from his 1981 back injury did not produce hypertension,
which resulted in coronary artery disease and caused his fatal heart attack. He advised that back
pain was common in the general population and resulted in elevated blood pressure in many
patients; this, however, did not typically result in the patient developing coronary artery disease.
Dr. Setty advised that blood pressure will fluctuate in patients such as the employee but was not
sufficiently persistent to produce changes in the body which would develop coronary artery
disease. He stated that, if back pain had produced the employee’s coronary artery disease, he
should have manifested symptoms of coronary artery disease earlier. Dr. Setty asserted that
there was no chance for patients with pain stemming from a physical injury, like the employee,
to develop hypertension and coronary artery disease from the injury-related pain. He advised
that the employee’s family history of diabetes, combined with hypertension and the subsequent
development of coronary artery disease, were sufficient factors to result in his heart attack.
Based on these reasons, Dr. Setty concluded that the employee’s death due to coronary artery
disease and diabetes was not causally related to the 1981 back injury.

6

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

7

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

8

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

9

See Richard E. Simpson, 55 ECAB 490 (2004).

10

Regina T. Pellecchia, 53 ECAB 155 (2001).

11

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

5

OWCP relied on Dr. Setty’s opinion in its September 4, 2014 decision, finding that his
amended report was a sufficient basis to conclude that the employee’s 2009 death due to
coronary artery disease and diabetes was not causally related to his accepted 1981 back injury,
and represented the weight of the medical evidence. The Board finds that Dr. Setty’s impartial
opinion negates a causal relationship between the employee’s death due to coronary artery
disease and diabetes was not causally related to the 1981 back injury. Dr. Setty’s opinion is
sufficiently probative, rationalized, and based upon a proper factual background. Therefore,
OWCP properly accorded his opinion the special weight of an impartial medical examiner.12
On appeal, appellant’s counsel reiterates his argument, stated below, that Dr. Pichey’s
January 6, 2011 report was not sufficient to produce a conflict in the medical evidence. The
Board has previously addressed this contention and has found that a conflict in the medical
evidence did exist between the opinions of Dr. Pichey and Dr. Hurria as to whether the
employee’s death due to coronary artery disease was causally related to his work-related 1981
back injury. Counsel further argues that Dr. Setty’s August 25, 2014 report was not sufficiently
rationalized and did not provide a sufficient basis to deny death benefits to appellant; in fact, his
reports supported a finding of causal relationship. She states that he did not address the reports
and opinions of Dr. Hurria, who was the employee’s longtime attending physician, treated him
for years and therefore provided a more credible opinion of whether hypertension, produced by
chronic back pain, contributed to the development of the employee’s coronary artery disease.
The Board does not agree. For the reasons stated above, Dr. Setty’s supplemental opinion is
sufficient to resolve the conflict in medical evidence, as his opinion clarifies that the employee’s
death was not due, in any part, to his accepted 1981 back injury. OWCP properly found that
appellant failed to meet her burden of proof to establish that her husband’s death was caused by
factors of his federal employment.13 The Board therefore affirms the September 4, 2014 decision
denying compensation for death benefits.
CONCLUSION
The Board finds that appellant failed to establish that the employee’s death on May 23,
2009 was causally related to factors of his federal employment.

12

Gary R. Seiber, 46 ECAB 215 (1994).

13

Victor J. Woodhams, 41 ECAB 345 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 4, 2014 is affirmed.
Issued: March 26, 2015
Washington, DC

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

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

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

7