United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Panorama City, CA, Employer
__________________________________________

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

Docket No. 10-128
Issued: December 7, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant, through his representative, timely appealed the
September 10, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied his claim for an employment-related emotional condition. Pursuant to 20 C.F.R. §§ 501.2
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
Appellant, a 58-year-old former letter carrier, filed an occupational disease claim for
major depressive disorder and panic disorder which arose on or about October 1, 2007. He
attributed his emotional condition to not being permitted to return to work, as he had not
received a medical clearance by the employing establishment. Since December 2006, appellant

had been absent from work due to a prior employment-related back and neck injury.1 He alleged
that his treating physician released him to resume full-time unrestricted duty in October 2007;
however, an employing establishment physician refused to allow him to return to work.
Appellant was scheduled for a number of fitness-for-duty examinations that he contended were
ill-timed and at inconvenient locations. In one instance, he was scheduled to see a physician in
California while he resided in Alabama. Appellant accused the employing establishment of
engaging in delay tactics and contended that his medical clearance by the employer was not
required.2 The employer controverted the claim.
In March 2007, appellant came under the care of Dr. Gunilla M. Karlsson, a clinical
psychologist. In a September 14, 2007 report, Dr. Karlsson diagnosed major depressive disorder
and panic disorder without agoraphobia. She noted findings of anxiety, stress and depression
due to hypertension. Dr. Karlsson attributed appellant’s psychiatric condition to the failure of his
employer to honor medical restrictions regarding the July 20, 1985 injury under claim file
number xxxxxx988. She stated that not honoring his medical restriction caused his hypertension,
anxiety and depression.
In a September 13, 2008 CA-20 report, Dr. Karlsson reiterated the diagnoses of major
depression, anxiety and stress but attributed appellant’s condition to “abusive discrimination
practice by supervisor against disabled employees.” She identified September 12, 2008 as the
date of injury and reported a history of injury of stress from the employer by delaying appellant’s
return to duty after being released. In the remarks section, Dr. Karlsson commented that,
because of the delay in returning him back to duty, he had a relapse of his depression. On
October 12, 2008 she submitted another CA-20 report that diagnosed major depressive disorder
and panic disorder, without agoraphobia. By checkmark, Dr. Karlsson indicated that appellant’s
condition was directly caused by the employer’s refusal to allow him to return to duty. She
explained that his treating physician had released him to full, unrestricted duties; however, since
October 2007, an employing establishment physician refused to approve his return and the
continued delay caused his depressive disorder.
In a decision dated November 10, 2008, the Office denied appellant’s claim. It found that
he did not attribute his emotional condition to his regular or specially assigned duties or to any
requirement imposed by his employer. The Office determined that appellant had not established
error or abuse by the employing establishment in referring him for fitness-for-duty examinations.
Appellant’s anxiety arising from any delay in returning to work was not compensable under the
Federal Employees’ Compensation Act.

1

The prior injury appellant referenced on his September 11, 2008 Form CA-2 involved a July 20, 1985 dog
attack. He was delivering mail at the time. The Office accepted the claim file number xxxxxx988 for lumbar sprain,
lumbar disc displacement and aggravation of neck sprain. Appellant was unable to resume his letter carrier duties
and identified his occupation as a rehabilitation clerk.
2

In addition to his 1985 employment injury, appellant filed numerous other compensation claims, including the
current emotional condition claim. The Board previously addressed these claims by decisions in Docket Nos. 961098, 04-2268 and 08-2348. This is the first appeal pertaining to the October 1, 2007 emotional condition under
claim file number xxxxxx930.

2

Appellant requested an oral hearing, which was held on June 30, 2009. He explained that
he filed his claim because the employing establishment just sat on his paperwork after his
treating physicians had released him to return to work in October 2007.3 After submitting the
necessary paperwork, appellant did not hear anything for several months. Instead of going back
to work, his employer requested additional documentation from his treating physicians.
Appellant also noted that it took about a year for the employing establishment to schedule
fitness-for-duty examinations. Instead of arranging all necessary examinations together, the
various examinations were separately scheduled. Appellant reiterated that, while residing in
Alabama, the employer scheduled him to see a physician located in California.4 He noted that all
three physicians he had been referred to agreed with his physicians that he was able to go back to
work with the same restrictions that were in place when he last worked in December 2006;
however, the employing establishment still did not put him back to work.
Appellant further testified that the employing establishment should have brought him
back to work first and afterwards schedule the fitness-for-duty examinations. He filed a
complaint with the Equal Employment Opportunity (EEO) Commission, which purportedly
directed the employer to return him to work, which it had not been done. Appellant noted,
however, that he was awaiting a hearing on the EEO Commission complaint and a formal
decision had not yet been issued. He contended that an EEO Commission judge verbally ordered
the employing establishment to place him back to work.
On July 24, 2009 Lesley Morgan, an employing establishment occupational health
specialist, responded to appellant’s hearing testimony. She noted that appellant was off duty for
various medical conditions, including cervical and lumbar spondylosis, chronic pain, bilateral
carpal tunnel, hypertension and his emotional condition. Rather than being released to return to
work, the employing establishment medical director noted that appellant’s return was with a
“guarded” prognosis and with multiple restrictions that impacted his job duties. Several
examinations were scheduled as the medical records indicated that appellant’s treating physician
had never referred him to an orthopedic specialist or a specialist in physical medicine and
rehabilitation. Ms. Morgan noted that appellant was restricted from answering incoming
telephone calls as he would have problems dealing with potentially angry or hostile customers
but it was not adequately explained why this restriction did not also apply to dealing with people
face-to-face in his job as a greeter. A fitness-for-duty examination was scheduled for June 9,
2008, that was rescheduled to June 18, 2008 at his request. After the examination, appellant’s
treating physician went from stating no restrictions to recommending extensive medical
restrictions.
The employer scheduled its own fitness-for-duty examination following conflicting
recommendations pertaining to appellant’s carpal tunnel residuals. While originally scheduled
for August 11, 2008, it was cancelled by appellant and rescheduled at his request for
October 3, 2008. Subsequent to the evaluation, appellant was cleared on December 2, 2008 for
his personal orthopedic conditions but he still had other outstanding medical conditions that
required clearance. While Dr. Karlsson indicated that he could return based on his emotional
3

Appellant noted that he had a 30 percent service-connected emotional disability.

4

At the time of the hearing, appellant had relocated to California.

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status at no restrictions, she had previously restricted him from telephones. Ms. Morgan noted
that despite several attempts, Dr. Karlsson did not adequately respond to inquiries by the
employing establishment physician. Appellant was ultimately cleared to return to work based on
his behavioral health condition given Dr. Karlsson’s December 13, 2008 report. Ms. Morgan
noted that appellant did not submit medical documentation clearing his return to work based on
his sleep apnea condition until January 28, 2009. She contended that any delay in appellant’s
return to work was due to his treating physician not responding adequately to the medical
director’s questions. This necessitated multiple examinations by medical specialists who found
significant pathology. In turn, it resulted in reinstatement of restrictions by the treating
physician. The need for fitness-for-duty examinations arose because of inconsistencies in the
various reports submitted by appellant’s treating physician.
Appellant provided additional medical reports from Dr. Karlsson dated November 17 and
December 5, 2008 and June 19, 2009. Dr. Karlsson cleared him to return to work from a
psychological standpoint effective November 17, 2008. She continued to attribute appellant’s
major depressive disorder and panic disorder to the employing establishment’s delay in returning
him to work.
By decision dated September 10, 2009, the hearing representative affirmed the
November 10, 2008 decision.
LEGAL PRECEDENT
To establish that appellant sustained an emotional condition causally related to factors of
his federal employment, he must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.6 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or to hold a particular position.7
Administrative and personnel matters, although generally related to the employment, are
administrative functions of the employer unrelated to the regular or specially assigned duties of
5

See Kathleen D. Walker, 42 ECAB 603 (1991).

6

Pamela D. Casey, 57 ECAB 260, 263 (2005).

7

Lillian Cutler, 28 ECAB 125, 129 (1976).

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the employee.8 Moreover, the processing of compensation claims bears no relation to the day-today or specially assigned duties of the employee. Although handling of a compensation claim is
generally related to the employment, it is an administrative function of the employer and not a
duty of the employee and not compensable absent evidence of error or abuse.9
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting his allegations with probative
and reliable evidence.10 When the matter asserted is a compensable factor of employment and
the evidence of record establishes the truth of the matter, the Office must base its decision on an
analysis of the medical evidence.11
ANALYSIS
Appellant did not attribute his emotional condition to any specially assigned job
requirement or duty arising from his status as an employee under Cutler. The record clearly
establishes that appellant was not at work or engaged in any job requirements arising in the
course of his federal employment.
Rather, appellant attributed his major depressive disorder and panic disorder to the
employing establishment’s delay in returning him to work. He contended that his treating
physician had released him to resume work in October 2007. The employer advised that it had
processed appellant’s return-to-work documents in a timely fashion. It attributed the delay in
returning him to work to inconsistencies in the recommended limitations pertaining to his
various orthopedic and emotional conditions. This necessitated multiple fitness-for-duty
examinations, several of which were rescheduled at appellant’s request. Appellant contends that
the employer should have first allowed him to return to work and then afterwards scheduled the
fitness-for-duty examinations.
Assessing whether an employee is both physically and emotionally capable of returning
to work is an administrative matter. An employee’s emotional reaction to administrative or
personnel matters generally falls outside the Act.12 However, to the extent the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.13
8

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 566 (1991).
9

David C. Lindsey, 56 ECAB 263 (2005); George A. Ross, 43 ECAB 346 (1991).

10

Kathleen D. Walker, supra note 5.

11

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
12

Andrew J. Sheppard, 53 ECAB 170, 173 (2001).

13

Id.

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The record documents that appellant’s recommended return to the workplace was
monitored by the employer’s medical director. The employing establishment noted that his
review of various medical reports revealed medical restrictions pertaining to the various
orthopedic and psychological conditions that were not consistent with his anticipated job duties
or adequately explained in the medical records. The evidence of record does not establish that
the employer’s requests for clarification regarding appellant’s physical and psychological
conditions were either erroneous or abusive. Appellant has failed to demonstrate that, in
ordering various fitness-for-duty examinations by medical specialists, the employer committed
error or abuse. His allegations do not question the necessity of these examinations, but he
suggests that the timing and location of the examinations were a nuisance or inconvenience.
While the medical appointments may have posed some inconvenience for appellant, this does not
establish error or abuse on the part of his employer. It is also noteworthy that on more than one
occasion the employing establishment accommodated his request to reschedule certain fitnessfor-duty examinations.
Under certain circumstances, an employee’s mandatory participation in a fitness-for-duty
examination may represent a compensable employment factor when considered a “requirement
imposed by the employment.” When a fitness-for-duty examination is required as a condition of
ongoing employment or is otherwise directly related to the work for which the employee was
hired, then the required participation is compensable.14 There must be an “important link”
between the employee’s specific duties and the need for a fitness-for-duty examination.15
Appellant’s claim is not premised on the requirement that he participate in the fitness-for-duty
examinations; as noted, he largely questioned their convenience due to timing and location. In
this regard, his claim is similar to that in Margaret M. Boyle.16 The employee based her claim
for compensation on the contention that she experienced mental anguish due to her separation
from employment.
Appellant also attributed his emotional condition to his separation from employment, his
desire to return to the workplace and the delay encountered in securing the appropriate work
restrictions for his various physical and emotional conditions. This is supported by the medical
record. Dr. Karlsson did not attribute appellant’s emotional reaction to the requirement that he
attend the fitness-for-duty examinations as directed. Rather, she noted that he had been released
by his attending physician and the employer failed to honor his medical restrictions by failing to
reinstate his employment. Dr. Karlsson explained that the employer had discriminated against
appellant by delaying his return to duty after she provided a medical release. As noted, the
employer countered that the restrictions initially recommended by appellant’s treating physician
and his psychologist required clarification and necessitated examination by other appropriate
medical specialists. Following the fitness-for-duty examinations, additional medical restrictions
were recommended, to which appellant’s physicians agreed.

14

Charles D. Edwards, 55 ECAB 258, 268-70 (2004).

15

Id. at 268.

16

13 ECAB 172 (1961).

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At the June 30, 2009 hearing, appellant testified that he filed an EEO complaint and a
judge reportedly directed the employing establishment to place him back to work; however, he
did not submit any evidence to substantiate this allegation. The fact that an employee filed an
EEO complaint does not establish error or abuse on the part of his or her employer.17 There is no
compelling evidence on which to find that the employer’s assessment of whether he was fit to
return to work was either abusive or erroneous. Consequently, this administrative matter is not
compensable under the Act. It is well established that an employee’s frustration from not being
permitted to work in a particular environment or to hold a particular position is not
compensable.18
Appellant’s December 2006 work stoppage was reportedly related to his July 20, 1985
employment injury. Therefore, the delay in his return to work is tangentially related to his
previous workers’ compensation claim. Although appellant did not attribute his current
complaints to his 1985 injury claim, the Board notes that an employee’s emotional reaction from
pursuing a workers’ compensation claim is not compensable.19 Because appellant failed to
establish a compensable factor of employment, he did not meet his burden of proof.20
CONCLUSION
The Board finds that appellant did not establish an emotional condition causally related to
his federal employment.

17

Grievances and EEO complaints do not establish that workplace harassment or unfair treatment occurred. Id.
at 266. Furthermore, absent an admission of fault, a settlement agreement does not establish error or abuse on the
part of the employing establishment. Kim Nguyen, 53 ECAB 127, 128 (2001).
18

Lillian Cutler, supra note 7.

19

John D. Jackson, 55 ECAB 465, 474 n.19 (2004).

20

Under the circumstances, the Office was not required to evaluate Dr. Karlsson’s various reports concerning
appellant’s psychological condition. Garry M. Carlo, supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the September 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Union City, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-982
Issued: November 14, 2012

Case Submitted on the Record

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

JURISDICTION
On April 4, 2012 appellant, through his attorney, filed a timely appeal from a
December 19, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a back condition causally related to factors of his
federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 6, 2008 appellant, then a 53-year-old letter carrier,
sustained a lumbar sprain in the performance of duty under File No. xxxxxx790. He stopped
work on May 28, 2009 and returned to modified employment on January 21, 2009.
On June 3, 2009 appellant filed a notice of recurrence of disability on May 28, 2009
causally related to the August 6, 2008 work injury. In a statement dated June 27, 2009, he
related that he had back pain after he returned to limited duty and that repeatedly twisting while
casing mail increased his back strain. OWCP advised appellant that, as he attributed his
condition to new work duties, it was adjudicating the notice of recurrence of disability as an
occupational disease claim. It assigned the claim File No. xxxxxx045.
In a report dated February 18, 2009, Dr. William Matarese, a Board-certified orthopedic
surgeon, noted that appellant experienced radicular pain after returning to work in January 2009.
On March 18, 2009 he diagnosed lumbosacral radiculitis and lumbar degenerative disc disease.
On July 2, 2009 the employing establishment controverted the claim, asserting that it
provided work within appellant’s restrictions and that he had not submitted supporting medical
evidence.
By decision dated August 17, 2009, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish that he sustained a diagnosed condition causally
related to the accepted work factors.
On August 27, 2009 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative.
In a report dated November 10, 2009, Dr. Mark Filippone, a Board-certified physiatrist,
reviewed appellant’s history beginning in 1986 of both work-related and nonemployment-related
back injuries. Appellant returned to modified employment after his 2008 work injury but
stopped on May 29, 2009 due to increased back pain radiating into the lower extremities.
Dr. Filippone diagnosed lumbosacral radiculitis and to rule out lumbosacral radiculopathy,
plexopathy and sciatic neuropathy. He stated, “In my professional medical opinion, the above
abnormal presentation is directly and solely the result of injuries sustained while at work as a
letter carrier and as a truck driver as stated above.” Dr. Filippone noted that appellant was
unable to work beginning May 29, 2009 due to back pain radiating into the lower extremities.
He stated, “[Appellant] relates that he hurt himself pulling down work and doing the above
activities and his subjective and physical complaints agree with the overall physical
presentation.” Dr. Filippone interpreted a magnetic resonance imaging (MRI) scan study as
showing degenerative changes with disc bulging at L2-3 to L5-S1 and a median disc protrusion
at L4-5 with foraminal narrowing. He asserted that appellant was totally disabled because of the
job-related injuries since May 29, 2009.
On February 5, 2010 OWCP’s hearing representative vacated the August 17, 2009
decision. He reviewed a physician’s report in File No. xxxxxx790 finding that appellant
sustained only a soft tissue injury and Dr. Filippone’s finding that he was unable to work as a

2

result of an employment injury.2 The hearing representative found that Dr. Filippone’s report
was sufficient to warrant further development. He instructed OWCP to combine the present case
with File No. xxxxxx790 and refer appellant for a second opinion examination. The hearing
representative also instructed OWCP to describe all of his prior work injuries to the low back in
its statement of accepted facts (SOAF).
In a report dated April 28, 2010, Dr. Wayne J. Altman, a Board-certified orthopedic
surgeon and OWCP referral physician, diagnosed lumbar spine arthritis. He found that appellant
could perform modified employment. In a supplemental report dated June 11, 2010, Dr. Altman
opined that appellant had no low back condition as a result of his light-duty employment.
By decision dated June 23, 2010, OWCP denied appellant’s occupational disease claim.
It found that Dr. Altman’s opinion represented the weight of the evidence and established that he
had no condition due to the identified work factors.
On June 30, 2010 counsel requested an oral hearing. Following an October 6, 2010
hearing, on December 28, 2010, OWCP’s hearing representative vacated the June 23, 2010
decision. She found that Dr. Altman did not support his opinion with sufficient rationale. The
hearing representative further determined that it was unclear whether his opinion was based on
an accurate factual history as he was not provided with the evidence from File No. xxxxxx790
and the SOAF did not clearly describe each injury or the requirements of his light-duty position.
She remanded the case for OWCP to prepare an amended SOAF and obtain a medical opinion
sufficient to resolve the question of the diagnoses due to the August 2008 work injury and
whether appellant was unable to perform his modified employment beginning May 29, 2009 due
to a worsening of his back condition.
On January 14, 2011 OWCP referred appellant, with an updated SOAF, to Dr. Jerome D.
Rosman, a Board-certified orthopedic surgeon, for a second opinion examination. The SOAF
accepted that appellant sustained lumbar sprains on May 15, 1993, August 6, 2002 and August 6,
2008 in the performance of duty. OWCP requested that Dr. Rosman address whether there were
objective findings of the August 6, 2008 work injury and whether performing limited duty
beginning January 21, 2009 resulted in a worsening of his back condition.
In a report dated February 5, 2011, Dr. Rosman discussed appellant’s 2008 employment
injury and noted that he “returned to work in January 2009 but due to his back pain he was out of
work completely as of May 28, 2009. Appellant retired in May 2010.” Dr. Rosman listed

2

In a report dated August 19, 2009, submitted in File No. xxxxxx790, Dr. Arash Emani, a Board-certified
orthopedic surgeon, discussed appellant’s August 6, 2008 work injury. He noted that appellant stopped work in
May 2009. Dr. Emani interpreted MRI scan studies as showing degenerative changes at L3 to L5 and lumbar
spondylosis. He stated, “I do not find any causal relationship between the injury and the degenerative findings that
[are] found on imaging studies and MRI scans and I am somewhat puzzled as why [he] has been out of work for
what appears to be a minor soft tissue injury to the lumbar region.” Dr. Emani opined that appellant could return to
his regular employment.

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findings on examination of equal reflexes, motor strength and intact sensation of the lower
extremities. He diagnosed lumbosacral sprain and stated:
“[Appellant] has a long history of back injuries and pain predating the injury of
August 6, 2008. He has MRI [scan study] confirmed degenerative lumbar disc
disease and lumbar spondylosis. [Appellant’s] present complaints and treatments
with physical therapy are consistent with a preexisting condition and not causally
related to the accepted diagnosis of lumbosacral sprain.”
Dr. Rosman found that appellant had no further findings of lumbosacral sprain and opined that
his limited-duty employment did not cause any worsening of his accepted low back condition.
He found that appellant could perform modified employment and provided a work restriction
evaluation listing limitations due to preexisting injuries of the lumbar spine and degenerative
disc disease.
In an addendum dated April 16, 2011, Dr. Rosman stated that appellant had no objective
findings of lumbar sprain on examination. He noted there was “no evidence based medicine to
support the concept that a minor soft tissue injury causes permanent worsening of a preexisting
degenerative spine.” In an addendum dated May 25, 2011, Dr. Rosman reiterated his prior
findings and stated:
“Similarly, there is no evidence based medicine to support the concept that the
limited (light)[-]duty work that the claimant does on a daily basis causes structural
changes in degenerative discs beyond what occurs naturally with the activities of
daily living; whether working or not.”
By decision dated June 3, 2011, OWCP denied appellant’s claim on the grounds that the
medical evidence, as represented by Dr. Rosman’s opinion, did not establish that he sustained a
medical condition due to the claimed work factors.
On June 9, 2011 appellant, through his attorney, requested an oral hearing. At the
September 21, 2011 hearing, counsel noted that appellant had a history of multiple
employment-related back conditions. He argued that Dr. Rosman did not accept that appellant
had work injuries prior to August 2008 but instead found that was the date of his initial injury.
Counsel contended that citing preexisting injuries as the cause of his back condition was akin to
attributing his condition to prior work injuries. He further maintained that the supplemental
reports were general in nature rather than specific to appellant and that the record contained a
conflict in opinion.
In a decision dated December 19, 2011, OWCP’s hearing representative affirmed the
June 3, 2011 decision.3 She found that appellant had not established that his limited-duty
employment from January to May 2009 caused an injury.

3

OWCP’s hearing representative reported that a Dr. David Rubinfeld had performed the second opinion
examination. In fact, however, Dr. Rosman performed the examination. Any error, however, would not affect the
disposition of the case.

4

On appeal, counsel argues that Dr. Rosman’s report is insufficient to constitute the
weight of the evidence. He maintains that a conflict in medical opinion exists between
Dr. Rosman and Dr. Filippone.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing 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.9
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
ANALYSIS
Appellant attributed his lumbar sprain to performing the duties of his modified
employment from January 21 to May 28, 2009. OWCP accepted the occurrence of the claimed
employment factors. It previously accepted that appellant sustained lumbar sprain due to an
August 6, 2008 work injury under File No. xxxxxx790. OWCP combined both claims on the
instructions of OWCP’s hearing representative and further developed the evidence to determine
whether appellant had further residuals of his August 6, 2008 employment injury and whether he
4

Supra note 1.

5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

5 U.S.C. § 8123; 20 C.F.R § 10.321(b); see also Darlene R. Kennedy, 57 ECAB 414 (2006).

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sustained a new back injury due to performing his limited duty from January 21 to
May 28, 2009.
The Board finds that there is a conflict in medical opinion between Dr. Rosman, the
OWCP referral physician, and Dr. Filippone, appellant’s attending physician. In a report dated
November 10, 2009, Dr. Filippone discussed appellant’s history of back injuries beginning in
1986 and noted that he stopped work on May 29, 2009 after returning to modified employment
following a 2008 injury. He diagnosed lumbosacral radiculitis and possible lumbosacral
radiculopathy, plexopathy and sciatic neuropathy. Dr. Filippone attributed the conditions to
appellant’s work duties and opined that he was disabled from work beginning May 29, 2009. By
contrast, Dr. Rosman found that appellant had no objective evidence of a lumbosacral sprain and
that his injuries did not aggravate his preexisting degenerative lumbar disc disease. He provided
work restrictions due to preexisting degenerative disc disease. The Board, therefore, finds a
conflict in medical opinion.
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination.11 The case will be remanded for an
impartial medical examiner to resolve the conflict in medical opinion. On remand, OWCP
should refer appellant and a SOAF to an appropriate physician to examine him and evaluate the
evidence pursuant to section 8123(a) of FECA. Following this and such further development as
OWCP deems necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

Id. at § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 14, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Sacramento, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1823
Issued: March 14, 2013

Case Submitted on the Record

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

JURISDICTION
On September 4, 2012 appellant, through his attorney, filed a timely appeal from a
May 8, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) which
affirmed the denial of his claim for a recurrence of disability. 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability commencing November 30, 2004 causally related to his accepted work
injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 7, 2001 appellant, then a 51-year-old real estate specialist, injured his right
shoulder and neck when he was involved in an automobile accident while in the performance of
duty.
OWCP accepted right shoulder strain and cervical strain and paid wage-loss
compensation. Appellant returned to regular duty and retired on November 30, 2004.
Appellant submitted a September 13, 2001 report from Dr. Dennis Walker, a family
practitioner, who treated him for right shoulder and neck pain after the motor vehicle accident.
Dr. Walker diagnosed neck and shoulder pain that was work related. He noted that appellant had
a history of previous right shoulder pain as well as neck arthritis as shown by an x-ray.
Dr. Walker opined that no permanent effects were expected and that appellant could return to
regular duty.
Appellant’s claim remained dormant until 2010. On October 29, 2010 he filed a CA-2a,
notice of recurrence of disability, asserting that he experienced increasing back and right
shoulder pain causally related to his work injury. Appellant also noted that he underwent right
shoulder surgery. After he retired in November 2004, he worked in the private sector from
April 2006 to July 2007 with the Albuquerque District Corps of Engineers as a realty specialist.
Appellant worked from November 2007 to August 2008 with Otay Group, Inc., as a chief of
supply logistics and from October 2009 to November 2010 as a realty specialist.
From January 21, 2004 to July 22, 2010, appellant came under the treatment of
Dr. Keith W. Harvie, an osteopath, for back and neck injuries sustained on September 7, 2001.
In reports dated January 21 to May 3, 2004, Dr. Harvie noted that appellant had several back and
shoulder surgeries; however, he continued to experience persistent neck and back pain. On
May 4, 2004 he performed a microdecompression laminectomy of L4-5 and diagnosed spinal
stenosis at L4-5. Dr. Harvie noted that appellant was progressing well until a fall in August 2004
which exacerbated his pain. He noted that an MRI scan of the lumbar spine revealed a herniated
disc at L1-2 and he performed selective nerve root blocks without improvement. On
February 15, 2005 Dr. Harvie performed microlaminectomy with excision of disc at L1-2 and
diagnosed nerve root compression secondary to herniated disc at L1-2.
Appellant continued to be treated by Dr. Harvie for persistent lumbar pain. Dr. Harvie
performed an x-stop at L2-3 on February 24, 2009 and at L3-4 on August 11, 2009. He
diagnosed spinal stenosis at L2-3 and L3-4 and residual and foraminal stenosis.
In a report dated July 14, 2010, Dr. Harvie noted a history of injury on September 7, 2001
and summarized appellant’s treatment from 2001 to 2010 for neck, back and shoulder pain. He
opined that appellant suffered a significant injury to his right shoulder after the 2001 accident
with degenerative changes which predated the accident. Dr. Harvie noted that appellant also had
pain in his back which began at the time of the accident. He diagnosed status post right shoulder
injury with joint arthritis with impingement syndrome, herniated disc at L3-4, discitis at L3-4,
spinal stenosis at L4-5, herniated disc at L1-2, spinal stenosis at L2-3, chronic pain syndrome,
depression, tobacco addiction. Dr. Harvie opined that to a reasonable degree of medical
probability appellants back and shoulder injuries were related to his accident. He noted that
appellant had prior right shoulder problems but was asymptomatic prior to the injury. In a

2

July 22, 2010 report, Dr. Harvie diagnosed status post right shoulder injury with joint arthritis
and impingement syndrome, the arthritis predated the injury but was aggravated by the injury,
herniated disc at L3-4 and discitis in L3-4, spinal stenosis in L4-5, herniated disc in L1-2 and
spinal stenosis at L2-3, related to the accident and chronic pain syndrome and depression related
to the accident.
In a June 7, 2011 letter, OWCP advised appellant of the evidence needed to establish his
claim for recurrence of disability. It requested that he submit a physician’s reasoned opinion
addressing the relationship of his present condition to his work injury, accepted for a right
shoulder and cervical strain.
In a June 21, 2011 statement, appellant noted that he returned to regular duty after the
September 7, 2001 injury but experienced worsening symptoms from his accident. He used sick
and annual leave from September 2001 to November 2004 to undergo back and shoulder
surgeries. Appellant asserted that the surgeries were due to his accident. After returning to
work, he performed office duties with little field work and noted his work ability changed due to
constant pain and difficulty walking.
In a decision dated September 30, 2011, OWCP denied appellant’s claim for a recurrence
of disability. It found that Dr. Harvie’s reports did not reflect an accurate history of the accepted
conditions and related appellant’s disability to nonaccepted conditions.
On October 28, 2011 appellant requested a telephonic oral hearing which was held on
February 8, 2012. He submitted reports from Dr. Walker dated September 8, 2001 to
September 14, 2003, who treated his neck and back pain after the 2001 work injury. On
March 10, 2005 Dr. Walker noted appellant’s complaints of chronic low back pain status post
surgery and diagnosed low back pain, musculoskeletal and neurologic, possibly impingement
and scarring post surgery. Appellant submitted reports from Dr. Mark D. Erasmus, a Boardcertified neurosurgeon, from February 6 to April 23, 2003. Dr. Erasmus treated appellant for
severe back pain radiating into the legs beginning in July 2002. He noted that epidural steroid
injections were not successful and on April 4, 2003 he performed an L3-4 discectomy and
diagnosed ruptured lumbar disc, right L3-4. On April 18, 22 and 23, 2003 Dr. Erasmus
performed a repair of the spinal fluid leak. Appellant submitted reports from Dr. Harvie dated
January 21, 2004 to May 4, 2005, previously of record. Also submitted were MRI scans of the
lumbar spine dated June 3, 2003 to December 10, 2004 which revealed prominent left
paracentral disc extrusion at L1-2 impinging on the L1 nerve root, multilevel degenerative disc
changes, multilevel facet arthropathy and changes consistent with prior L4-5 hemilaminectomy.
In a May 8, 2012 decision, an OWCP hearing representative affirmed the decision dated
September 30, 2011.

3

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
injury or illness without an intervening injury or a new exposure to the work environment.2
When an employee claims a recurrence of disability causally related to an accepted
employment injury, he or she has the burden to establish by the weight of the reliable, probative
and substantial medical evidence that the claimed recurrence of disability is causally related to
the accepted injury.3 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that
the disabling condition is causally related to the employment injury and supports that conclusion
with sound medical reasoning.4 An award of compensation may not be made on the basis of
surmise, conjecture, or speculation or on an appellant’s unsupported belief of causal relation.5
ANALYSIS
OWCP accepted that appellant sustained a right shoulder strain and cervical strain on
September 7, 2001. He returned to regular duty and retired on November 30, 2004. Appellant
noted that he worked in the private sector from April 2006 to November 2010. He filed a Ca-2a,
notice of recurrence of disability on October 29, 2010.
On appeal, appellant asserts that he has submitted sufficient medical evidence to establish
his claim. The Board finds that the medical evidence of record lacks a well-reasoned narrative
opinion from an attending physician providing an accurate history of the accepted condition or
explaining how appellant’s claimed disability is related to his accepted employment injury.
In a July 14, 2010 report, Dr. Harvie listed the date of injury on September 7, 2001 and
summarized appellant’s treatment from 2001 to 2010 for neck, back and shoulder pain. He
opined that appellant suffered significant injury to his right shoulder during the 2001 work
accident. Dr. Harvie advised that, while appellant had degenerative changes which predated the
accident, he was asymptomatic prior to the injury. He opined that to a reasonable degree of
medical probability appellant’s back and shoulder injuries were related to his accident. In a
July 22, 2010 report, Dr. Harvie diagnosed status post right shoulder injury with joint arthritis
and impingement syndrome, the arthritis predated the injury but was aggravated by the injury,
herniated disc at L3-4 and discitis in L3-4, spinal stenosis in L4-5, herniated disc in L1-2 and
spinal stenosis at L2-3, related to the accident and chronic pain syndrome and depression related
to the accident. He did not specifically address how the right shoulder or cervical strains in 2001
caused or contributed to appellant’s disability or condition in 2010. Dr. Harvie did not provide a
full history of medical treatment or address appellant’s work in the private sector. This is
2

20 C.F.R. § 10.5(x).

3

Alfredo Rodriguez, 47 ECAB 437 (1996); see Dominic M. DeScala, 37 ECAB 369 (1986).

4

See Nicolea Bruso, 33 ECAB 1138 (1982).

5

Ausberto Guzman, 25 ECAB 362 (1974).

4

especially important where the claim was dormant for a number of years and where the record
documents that appellant had a nonwork-related fall in August 2004 and reported right shoulder
pain prior to the work injury. Dr. Harvie did not sufficiently address why appellant’s condition
was not the result of the more recent nonwork-related injury instead of the 2001 work injury. He
also did not address Dr. Walker’s contemporaneous September 13, 2001 report which stated that
there were no permanent effects expected and that appellant could return to regular duty. The
Board has found that unrationalized medical opinions on causal relationship have little probative
value.6 Other reports from Dr. Harvie are insufficient as they either predate the time of the
claimed recurrence of disability or do specifically address how appellant’s disability beginning
November 30, 2004 was causally related to the September 7, 2001 work injury.
In a March 10, 2005 report, Dr. Walker diagnosed low back pain, musculoskeletal and
neurologic, possibly impingement and scarring post surgery. However, he did not specifically
support that appellant had a recurrence of disability beginning November 30, 2004 causally
related to the September 7, 2001 work injury. Other reports from Dr. Walker either predated the
date of the claimed recurrent disability or did not support that the September 7, 2001 work injury
was the cause of disability. Likewise, medical reports of record, such as reports from
Dr. Erasmus and reports of diagnostic testing, either predate the claimed recurrence of disability
or do not address causal relationship between the claimed disability and that accepted right
shoulder strain and cervical strain
Therefore, appellant did not meet his burden of proof in establishing that he sustained a
recurrence of disability. He did not otherwise submit medical evidence supporting that he
sustained a recurrence of disability beginning November 30, 2004 causally related to his
September 7, 2001 work injury. Although appellant’s counsel, on appeal, asserts that OWCP’s
decision is contrary to fact and law and that appellant’s evidence was ignored, the Board notes
that, for the reasons set forth, the medical evidence is insufficient to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability commencing November 30, 2004 causally related to his
accepted employment-related injury in September 7, 2001.

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

5

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 14, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF INTERIOR, CHINLE
AGENCY, Many Farms, AZ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 18-0470
Issued: March 7, 2019

Case Submitted on the Record

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

On December 27, 2017 appellant filed a timely appeal from a December 21, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 18-0470.
On June 20, 2015 appellant, then a 57-year-old special education teacher, filed a traumatic
injury claim (Form CA-1) alleging injury to her ribs and torso on June 15, 2015 while in the
performance of duty when her vehicle door slammed against her left side as she was entering a
vehicle. On July 27, 2015 she was released to return to her previous modified work.1 By decision
dated August 17, 2015, OWCP accepted the claim for a contusion of chest wall and paid
appropriate compensation benefits.
On October 18, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a list of questions and the medical record, to Dr. Michael Steingart, an osteopath and
orthopedic specialist, for a second opinion examination. In a November 10, 2017 report,
Dr. Steingart diagnosed resolved contused ribs. He indicated that the chest wall contusion did not
have positive objective findings and that such a condition would have been expected to have
resolved within three weeks of the incident. Dr. Steingart opined, in pertinent part, that medical
1

Appellant had prior claims before OWCP. Under OWCP File No. xxxxxx444, OWCP accepted a lower back
sprain for a November 6, 2014 injury. Appellant was assigned modified-duty work within restrictions pertaining to
his prior claim.

treatment was unnecessary and that appellant had no residuals or disability from the chest wall
contusion. He further concluded that appellant’s multiple injuries since the June 15, 2015 injury
were unrelated to her chest wall contusion.
By decision dated December 21, 2017, OWCP denied a requested medical procedure.2 The
decision provided in full: “Your request for a medical treatment under this claim is denied on the
grounds based on the Second Opinion report of [November 20, 2017]. No further consideration
in relation to the requested procedures will be given. Further medical treatment related to
conditions accepted as work related, is not authorized and prior authorization, if any, is
terminated.” (Emphasis in the original.) The decision purported to provide appeal rights.
The Board finds that this case is not in posture for decision. Although OWCP effectively
terminated appellant’s medical benefits when it issued its December 21, 2017 denial of
authorization for medical treatment, the record does not contain a preliminary notice of a proposal
to terminate medical compensation.3
The Board has held that compensation benefits constitute a property interest protected by
the due process clause. Reduction of benefits prior to the issuance of a pretermination notice
defeats the purpose of OWCP procedures that provide for notice before reduction of benefits.4
OWCP procedures provide that notice is required prior to termination in all cases where benefits
are being paid on the periodic rolls and in the case of termination of medical benefits.5 The
procedures indicate that a notice is required if medical benefits are terminated based upon the
opinion of a second opinion or referee examiner, as opposed to the treating physician.6 The Board
has held that OWCP must follow its procedures and provide notice and an opportunity to respond
prior to the termination of compensation benefits.7
In light of the fact that appellant’s request for authorization for medical treatment was
denied and OWCP terminated appellant’s medical benefits related to accepted work-related
conditions based on the opinion of a second opinion examiner, the burden remains on OWCP to
properly terminate appellant’s compensation benefits.8 Without a proper notice of a proposal to
terminate compensation in the record, OWCP improperly terminated appellant’s medical
compensation.
The case must be returned to OWCP for proper notification of appellant’s medical benefits
status. Following this and any other further development deemed necessary, OWCP shall issue an
2

The procedure was not identified.

3
OWCP’s Federal (FECA) Procedure Manual specifies procedural requirements for termination of compensation
benefits, including issuance of a pretermination notice. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Disallowances, Chapter 2.1400.4b(3) (February 2013).
4

See Felix Voyles, 46 ECAB 895 (1995).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Pretermination Notices, Chapter
2.1400.4b (February 2013); see also Winton A. Miller, 52 ECAB 405 (2001).
6

Id. at Chapter 2.1440.4.b(2) (February 2013).

7

K.S., Docket No. 11-2021 (issued August 21, 2012).

8

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

2

appropriate decision, including findings of facts and a statement of reasons, regarding appellant’s
medical benefits.
IT IS HEREBY ORDERED THAT the December 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action in
accordance with this order of the Board.
Issued: March 7, 2019
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
E.A., Appellant
)
)
and
)
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DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Boston, MA, Employer
)
___________________________________________ )

Docket No. 07-2037
Issued: April 11, 2008

Appearances:
John Whitehouse, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On July 30, 2007 appellant filed a timely appeal from the July 11, 2007 decision of the
Office of Workers’ Compensation Programs’ hearing representative who affirmed the
termination of her wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over these issues.
ISSUES
The issues on appeal are: (1) whether the Office properly terminated appellant’s wageloss compensation effective June 1, 2004; and (2) whether appellant met her burden of proof to
establish that she was entitled to compensation for wage loss after June 1, 2004.
FACTUAL HISTORY
On July 22, 1994 appellant, then a 31-year-old nursing assistant/phlebotomist, filed a
traumatic injury claim alleging that, on June 27, 1994, she lifted a bedside table and picked up a
bucket of supplies.1 The Office accepted the claim for a back sprain. Appellant returned to full
1

This claim was given File No. 010324535.

duty on August 2, 1994. She filed another traumatic injury claim alleging that, on November 29,
1994, she injured the upper right side of her back while bending over to draw blood from a
patient. The Office accepted that appellant sustained a lumbosacral strain.2 Appellant returned
to light-duty work following this injury. She filed recurrences of disability claims on June 14
and November 18, 1995 and March 18, 1996, which were accepted by the Office.
A July 8, 1995 thoracic spine magnetic resonance imaging (MRI) scan, read by Dr. John
Ostheimer, a Board-certified diagnostic radiologist, revealed T6-7 posterior and right-sided disc
herniation with mild cord impingement, T11-12 disc and left-sided herniation with slight cord
impingement and a small posterior disc bulge at T10-11 and intervertebral disc without cord
impingement. A July 19, 1995 MRI scan of the thoracic spine, read by Dr. Ricardo Sanchez, a
Board-certified diagnostic radiologist, revealed a right-sided herniation at T6-7, a left-sided
herniation at T11-12, and a small posterior bulge at T10-11.
Appellant filed a third traumatic injury claim that involved pushing a wheelchair on
March 11, 1998. The Office accepted this claim for lumbosacral strain.3
An October 8, 2000 thoracic MRI scan read by Dr. Avishai W. Shapiro, Board-certified
in internal medicine, revealed shallow disc protrusions at C6-7, T9-10, T10-11 at L4-5 and
L5-S1.
On July 29, 2003 appellant twisted and sprained her left ankle while wiping her feet on a
rug due to the wet ground outside. The record reflects that appellant’s claim was
administratively processed and lost time was addressed through continuation of pay. The Office
combined appellant’s claims under master File No. 0355729.
Dr. Stanley Leitzes, an attending orthopedic surgeon, diagnosed thoracolumbar spasm
and placed appellant on light duty working no more than three days or 24 hours per week. She
later returned to part-time limited duty and worked eight hours per day for three days per week.4
Appellant received appropriate compensation. Dr. Leitzes continued to treat appellant and
indicate that her work status remained unchanged.
A June 26, 2004 MRI scan of the thoracic spine read by Dr. Ostheimer revealed
degenerative disc disease, small right-sided protrusions at several levels but no cord
impingement and no evidence of spinal stenosis or intrinsic thoracic spinal cord pathology.
On March 17, 2004 the Office referred appellant for a second opinion to Dr. James S.
Broome, a Board-certified orthopedic surgeon. In a March 30, 2004 report, Dr. Broome noted
appellant’s history of injury and treatment. He found that appellant had complaints of muscle
spasms, and focal pain in the thoracic and lumbar areas. Dr. Broome examined appellant and
2

The claim was given File No. 010324932.

3

The Office accepted this claim under File No. 0355729. The Office also accepted several recurrence claims in
2000.
4

The employing establishment confirmed that appellant had continued in this status since her original injury in
1994.

2

determined that there was no evidence of spastic parapesis, her reflexes were intact, and a
Babinski sign was negative. He opined that appellant did not have the “classical signs and
symptoms of a symptomatic thoracic disease.” Dr. Broome advised that the results of his
physical examination did not support a symptomatic thoracic disease as there were no objective
findings to support her subjective complaints. He opined that appellant had reached maximum
medical improvement. Dr. Broome advised that appellant’s current condition was not work
related.
On April 12, 2004 the Office proposed to terminate appellant’s compensation benefits.
The Office determined that her injury-related disability had ceased.
In an April 15, 2004 report, Dr. Leitzes opined that appellant was under his care for a
ruptured intervertebral disc and disc protrusions which were impinging on her nerves. He noted
that appellant had maintained a reduced schedule, which “has enabled her to continue working
with her ongoing symptomatology.” Dr. Leitzes advised that this prevented her situation from
worsening. He indicated that appellant should continue her present work schedule.
By decision dated June 1, 2004, the Office terminated appellant’s compensation benefits
on the grounds that her injury-related condition and disability had ceased.
Dr. Leitzes continued to submit reports and opine that appellant was limited to working
three eight-hour days per week.
On June 30, 2004 appellant requested a hearing, which was held on March 29, 2005.
By letter dated April 21, 2005, appellant’s representative alleged that the Office did not
meet its burden of proof to terminate her benefits. He enclosed additional evidence, which
included an April 6, 2005 report, in which Dr. Leitzes noted that he had treated appellant for
more than 10 years. Appellant’s representative indicated that it was unclear how Dr. Broome
arrived at his conclusion, as the diagnostic testing revealed a herniated intervertebral disc.
Dr. Broome opined that appellant’s herniated discs at the thoracic level were directly related to
her 1994 incident at work. Dr. Leitzes indicated that appellant was never totally asymptomatic.
In an October 7, 2004 report, Dr. Anthony S. Lapinsky, an orthopedic surgeon, who opined that
appellant had degenerative disc disease, at multiple levels of the thoracic spine, and advised that
she needed “a modification in her work activity to meet her functional capacity.”
In a June 22, 2005 decision, the Office hearing representative affirmed the June 1, 2004
decision which terminated appellant’s compensation benefits effective June 1, 2004. However,
the hearing representative found that the new medical evidence from Dr. Leitzes and
Dr. Lapinsky subsequently created a conflict in medical opinion with Dr. Broome on the issue of
continuing work-related residuals and disability and whether appellant’s thoracic disc herniations
were employment related. The hearing representative directed the Office to refer appellant for
an impartial medical examination to resolve the medical conflict.
On May 4, 2006 the Office referred appellant along with a statement of accepted facts,
and the medical record to Dr. Vincent Genovese, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve the conflict in medical opinion.

3

In a June 8, 2006 report, Dr. Genovese noted appellant’s history of injury and treatment,
including her diagnostic test results. He indicated that she had complaints of pain in her back
traveling down to her buttocks, which appellant described as severe or mild, depending upon her
activity and whether she was sitting or standing. Dr. Genovese related that appellant indicated
that she was never pain free. Appellant reported that she was able to tolerate a modified work
schedule, as she was able to rest and use pain medication. Dr. Genovese determined that
appellant was able to ambulate normally with no evidence of any gait disturbance. He diagnosed
chronic pain syndrome, status post-recurrent thoracolumbar strain episodes. Dr. Genovese
opined that appellant could continue her current pattern of three days of gainful employment.
She reached maximum medical improvement and continued to have residuals of chronic pain
syndrome. Dr. Genovese stated that appellant had chronic axial pain in the thoracic and lumbar
spine of “uncertain etiology.” He also noted that appellant’s condition arose “apparently, as a
result of sprains and strains of the past, reported to have occurred in relationship to her job.”
On June 19, 2006 the employing establishment provided the Office with surveillance
photographs and summaries, which included that on May 18, 2006 appellant, walked and pushed
a carriage for approximately 50 minutes in a Wal-Mart store.
By letter dated July 28, 2006, the Office requested clarification from Dr. Genovese
regarding whether appellant’s current symptoms were work related, whether her current work
capacity was the result of her employment-related conditions, and whether appellant’s chronic
pain syndrome arose from her accepted injuries.
In an August 4, 2006 report, Dr. Genovese noted reviewing the surveillance photographs,
and opined that it appeared that appellant’s activities contradicted her reported activity
limitations. He completed a work capacity evaluation and opined that appellant was at
maximum medical improvement. Appellant was found capable of performing office work 40
hours per week. In an August 31, 2006 follow-up report, Dr. Genovese opined that appellant’s
chronic pain behavior was exacerbated by her work-related injury of June 27, 1994; however, he
noted that it did not cause a post-traumatic disc herniation on July 11, 1994 that could account
for her current complaints in 2006. He also noted that appellant became pregnant in the fall of
1996 and was seen for intermittent complaints. Dr. Genovese reviewed the MRI scan results and
noted that there was no medical rationale to support a causal relationship for post-traumatic
thoracic disc herniation related to the March 11, 1998 incident to explain her current symptoms
in 2006. He also reviewed the photographic documentation before and after his examination and
opined that appellant had the “physical capacity to do more than what she is willing to reveal and
is no doubt capable of working 40 hours in her current light-duty position.” Dr. Genovese
opined that appellant was “currently satisfied with her current work situation and has a strong
desire to keep her situation the way it is now.” He explained his statement that appellant’s
current chronic pain syndrome had an “unknown etiology” and noted that he had referenced
Dr. Broome’s conclusion. It was Dr. Genovese’s opinion that thoracic disc herniations were not
the etiology of appellant’s ongoing subjective complaints; he opined that appellant’s “chronic
pain behavior diagnosis developed in response to a series of thoracolumbar and lumbar strains.”
By decision dated September 27, 2006, the Office denied reinstatement of compensation
on and after June 1, 2004 on the basis that the weight of the medical evidence, as represented by
the opinion of Dr. Genovese, indicated that appellant had no continuing condition or disability

4

causally related to her prior work injuries. In an October 13, 2006 decision, the Office issued an
amended decision which denied compensation on and after June 1, 2004.
On October 16, 2006 appellant requested a hearing, which was held on April 25, 2007.
By decision dated July 11, 2007, the Office hearing representative reversed the Office’s
October 13, 2006 decision with regard to further medical benefits. The hearing representative
affirmed the decision with regard to entitlement to compensation for wage loss on or after
June 1, 2004.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6
ANALYSIS -- ISSUE 1
At the time of the Office’s June 1, 2004 termination decision, the Board finds that the
weight of the medical evidence was represented by Dr. Broome, the second opinion physician.
In a report dated March 30, 2004, Dr. Broome noted appellant’s history of injury and
treatment. While he noted that appellant had complaints of muscle spasms and focal pain in the
thoracic and lumbar areas, he conducted a physical examination and determined that there was
no evidence of spastic parapesis, her reflexes were intact, and she had a negative “Babinski.”
Dr. Broome concluded that appellant did not have symptomatic thoracic disease as there were no
objective findings to support appellant’s subjective complaints. He opined that appellant had
reached maximum medical improvement and that her current condition was not work related.
Appellant’s treating physician, Dr. Leitzes, diagnosed thoracolumbar spasm and placed
appellant on light duty. He opined that appellant should work no more than 3 days or 24 hours
per week. In his April 15, 2004 report, Dr. Leitzes opined that appellant was under his care for a
ruptured intervertebral disc and disc protrusions which were impinging on her nerves. He noted
that appellant was able to maintain a reduced schedule, which “has enabled her to continue
working with her ongoing symptomatology” and opined that appellant continue her present work
schedule. However, Dr. Leitzes did not specifically relate any ongoing disability to appellant’s
accepted conditions and he did not explain how the ruptured intervertebral disc arose as a result
of her work-related injury.7 This is especially important in light of the fact that a July 19, 1995
5

Curtis Hall, 45 ECAB 316 (1994).

6

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

7

The Office did not accept any disc rupture or herniation was employment related. Thus, with respect to
nonaccepted conditions, appellant has the burden of proof to establish that they are employment related. See Jaja K.
Asaramo, 55 ECAB 200 (2004).

5

MRI scan of the thoracic spine only revealed a right-sided herniation at T6-7, a left-sided
herniation at T11-12, and a small posterior bulge at T10-11. While the medical opinion of a
physician supporting causal relationship does not have to reduce the cause or etiology of a
disease or condition to an absolute certainty, neither can such opinion be speculative or
equivocal. The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.8
At the time of the Office’s termination of wage-loss compensation the record contained
no other current medical evidence addressing whether appellant’s accepted back sprain and
lumbar strains caused any continuing disability for work.
In these circumstances, the Office properly accorded the weight of the evidence to
Dr. Broome’s March 30, 2004 findings. Thus, the Board finds that Dr. Broome’s report
established that appellant had no work-related disability on or after June 1, 2004, thereby
justifying the Office’s June 1, 2004 termination of her wage-loss compensation.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.9
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.10
Furthermore, the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the Office and the employee’s
physician, the Office shall appoint a third physician who shall make an examination.11 In cases
where the Office has referred appellant to an impartial medical examiner to resolve a conflict in
8

Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow, 50 ECAB 370 (1999).

9

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

10

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

11

5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

6

the medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.12
ANALYSIS -- ISSUE 2
Subsequent to the Office’s June 1, 2004 decision, the Office found that a conflict of
medical opinion existed regarding whether or not work-related conditions continued and whether
her thoracic spine condition was related to her employment based on the opinions of Drs. Lietzes
and Lapinsky, for appellant, and Dr. Broome, the second opinion physician, for the Office.
Therefore, the Office properly referred appellant to Dr. Genovese, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the conflict.
In his June 8, 2006 report, Dr. Genovese examined appellant and determined that she was
able to ambulate normally without evidence of gait derangement. He diagnosed chronic pain
syndrome and advised that she was “post-recurrent” thoracolumbar strain episodes.”
Dr. Genovese advised that appellant continue her current pattern of working three days per week
of gainful employment and noted that she continued to have residuals of chronic pain syndrome.
On July 28, 2006 the Office requested clarification with regard to whether appellant’s
current symptoms were work related and whether her chronic pain syndrome arose from her
accepted injuries. When the Office secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in the medical evidence and the opinion from the specialist
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting a defect in the original report.13 As the
Office needed clarification from the doctor regarding whether the employment-related condition
had resolved, it properly requested clarification from Dr. Genovese.
In an August 4, 2006 report, Dr. Genovese noted that he had reviewed the surveillance
photographs, and opined that it appeared that appellant’s activities contradicted her reported
activity limitations. He completed a work capacity evaluation and indicated that appellant was
capable of performing office work for 40 hours per week. Dr. Genovese provided an August 31,
2006 follow-up report, in which he indicated that appellant’s chronic pain behavior was
exacerbated by her June 11, 1994 employment injury; however, it did not cause a post-traumatic
disc herniation at that time, which would account for her current complaints. He reviewed the
MRI scan reports of record and opined that there was “no medical rationale to support a causal
relationship for post-traumatic disc herniation related to the March 11, 1998 incident to explain
her current symptoms in 2006.”
Dr. Genovese also explained that the photographic
documentation before and after his examination revealed that “appellant had the “physical
capacity to do more than she is willing to reveal and is no doubt capable of working 40 hours in
her current light-duty position.” He opined that appellant was satisfied with her current situation
and had a “strong desire to keep her situation the way it is now.” Dr. Genovese also clarified his
statement that appellant’s current chronic pain syndrome had an unknown etiology and explained

12

Gary R. Sieber, 46 ECAB 215, 225 (1994).

13

Roger W. Griffith, 51 ECAB 491 (2000).

7

that he was merely referencing Dr. Broome’s conclusion, but that he had determined that her
chronic pain syndrome arose from a series of thoracolumbar and lumbar strains.
The Board finds that Dr. Genovese’s opinion is entitled to special weight as his reports
are sufficiently well rationalized and based upon a proper factual background. The Office
properly relied upon his reports in finding that appellant’s disc herniation was not work related
and that she was able to work 40 hours per week. Dr. Genovese examined appellant, reviewed
her medical records, and reported accurate medical and employment histories. He concluded
that appellant had no work-related disc herniation and that she was capable of working 40 hours
in her current light-duty position.
Appellant did not submit any additional evidence, which would establish that she was
unable to work 40 hours per week in her current light-duty position.
Accordingly, appellant did not meet her burden of proof to establish that she was entitled
to compensation for wage loss after June 1, 2004 causally related to her June 27, 1994
employment injury.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective June 1, 2004. Further, the Board finds that appellant did not
meet her burden of proof to establish that she had an employment-related disc herniation or that
she was entitled to compensation for wage loss after June 1, 2004 causally related to the June 27,
1994 employment injury.

8

ORDER
IT IS HEREBY ORDERED THAT the July 11, 2007 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: April 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1765
Issued: March 1, 2013

Case Submitted on the Record

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

JURISDICTION
On August 20, 2012 appellant filed a timely appeal from a June 4, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this claim.2
ISSUE
The issue is whether appellant sustained a medical condition in the performance of duty
on April 17, 2006.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board, however, may only review evidence that was in the
record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued
September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On April 25, 2006 appellant, then a 68-year-old clerk, filed a traumatic injury claim
alleging that on April 17, 2006 she injured her left leg when an unsecured gate fell on her leg.
She stopped work on April 18, 2006 and returned to work on April 20, 2006. Also submitted
were a statement from appellant describing the injury, an April 17, 2006 employer health unit
report noting the history of injury and that appellant’s left leg was swollen and an April 18, 2006
disability certificate from Dr. F. Rose Jahroumi, a Board-certified family practitioner who noted
examining appellant for a left leg injury sustained at work. Thereafter, the claim was dormant
until April 2012 when appellant submitted physical therapy requests.
In an April 26, 2012 letter, OWCP advised appellant that it required additional medical
evidence in support of her claim. It requested a comprehensive medical report from a physician
which includes a history of the claimed work injury and which diagnoses a medical condition
causally related to the claimed work injury and contains medical rationale for the opinion
provided. Appellant was given 30 days to submit the requested information.
Appellant submitted an April 23, 2012 statement noting that she was submitting medical
documentation for her left knee and leg injury. In medical reports dated August 20, 2010 and
May 23, 2011, Dr. Mark Madden, a Board-certified orthopedic surgeon, noted that appellant had
some left knee pain from her previous work injury. No diagnosis or work history was provided.
In a September 4, 2009 report, Dr. George Aguiar, a Board-certified orthopedic surgeon,
noted that appellant presented with left knee pain which increased while gardening in her yard.
An impression of patellofemoral degenerative joint disease and patellofemoral pain syndrome
was provided from x-rays of the left knee. Appointment records from December 9, 16 and 23,
2009 reveal that appellant was provided injections in her left knee for osteoarthrosis. Also
submitted were physical therapy records, magnetic resonance imaging (MRI) scan tests of
appellant’s left knee dated April 16, 2008 and January 11, 2012 and a November 19, 2008 left
knee operative report for partial medial and lateral meniscal tears with osteoarthritis of left knee.
By decision dated June 4, 2012, OWCP denied appellant’s claim on the basis that causal
relationship was not established. It noted that the evidence submitted was insufficient to
establish that the medical condition was causally related to the accepted work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component of fact of
injury is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.6
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, 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 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.8
ANALYSIS
OWCP accepted that on April 17, 2006 appellant experienced the claimed event of an
unsecured gate falling on her left leg. The Board finds, however, that the medical evidence is
insufficient to establish that she sustained a left knee or leg injury on or about April 17, 2006
causally related to the claimed incident.
As noted, after filing the claim in 2006, the matter was dormant until 2012. On April 18,
2006 Dr. Jahroumi took appellant off work on April 18, 2006 for an injury to her left leg at

4

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

5

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

6

Id.

7

Leslie C. Moore, 52 ECAB 132 (2000).

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

3

work.9 However, Dr. Jahroumi provided no clear diagnosis and did not address how an injury
was caused by particular work factors. Thus, this report is of limited probative value.10
The reports of diagnostic testing, the November 19, 2008 left knee operative report and
Dr. Aguiar’s September 4, 2009 report are insufficient to establish the claim as they do not
specifically address causal relationship between the April 17, 2006 work incident and a
diagnosed medical condition.11 Moreover, Dr. Aguiar’s report indicates that appellant’s left knee
pain increased while doing yard work. Appellant presented no medical evidence from a
physician providing a reasoned opinion that explains why her current left knee condition is
causally related to the April 17, 2006 work incident. The need for medical reasoning is
particularly important since the claim was dormant for a number of years after 2006. Thus, the
medical reports submitted are insufficient to establish appellant’s claim.
Appellant also submitted physical therapy records in support of her claim. However, lay
individuals such as physician’s assistants, nurses and physical therapists are not competent to
render a medical opinion under FECA.12 Thus, records from nonphysicians are of no probative
medical value in establishing the claim.
Consequently, the medical evidence is insufficient to establish a causal relationship
between specific factors or conditions of employment and the diagnosed medical conditions.
On appeal, appellant contended that the medical evidence supported her left leg
conditions. However, as noted above, the medical evidence is insufficient to establish that the
April 17, 2006 incident caused or aggravated a diagnosed medical condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

The employing establishment’s health unit’s April 17, 2006 treatment record cannot be considered as probative
medical evidence as there is no indication that it was signed by a physician. The Board has held that a medical
report may not be considered as probative medical evidence if there is no indication that the person completing the
report qualifies as a physician as defined in 5 U.S.C. § 8101(2). C.B., Docket No. 09-2027 (issued May 12, 2010).
10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
11

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).
12

David P. Sawchuk, 57 ECAB 316 (2006). See 5 U.S.C. § 8101(2) (defines the term “physician” as used in
FECA).

4

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a medical condition causally related to her April 17, 2006 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5