United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
NY HARBOR HEALTHCARE SYSTEM,
New York, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1501
Issued: February 23, 2021

Case Submitted on the Record

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

JURISDICTION
On July 3, 2019 appellant, through counsel, filed a timely appeal from a May 30, 2019
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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 30, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation, effective May 30, 2018, as she no longer had disability causally related to her
accepted employment injuries; and (2) whether appellant has met her burden of proof to establish
continuing disability due to the accepted conditions after May 30, 2018.
FACTUAL HISTORY
On November 23, 2009 appellant, then a 53-year-old social worker, filed a traumatic injury
claim (Form CA-1) alleging that on November 18, 2009 she was attacked by a patient that shoved
her in her back and hit her twice with a door while in the performance of duty. She alleged that
she injured her right side, shoulder, back, calf, and foot. On January 21, 2010 OWCP accepted
appellant’s claim for neck and lumbar back sprain, and right shoulder contusion. On May 27, 2010
it expanded acceptance of her claim to include post-traumatic stress disorder (PTSD). On July 14,
2010 OWCP again expanded acceptance of appellant’s claim to include lumbar disc displacement.
On June 11, 2014 it expanded acceptance of her claim to include rotator cuff syndrome of the right
shoulder and allied disorders.
In an attending psychologist’s report dated October 13, 2010, Dr. C. Edward Robins, a
licensed clinical psychologist, found appellant to be totally disabled through October 6, 2010 due
to PTSD. Dr. Debra H. Goldman, a licensed clinical psychologist, found her totally disabled from
work due to her accepted PTSD through October 19, 2010.
On December 8, 2010 OWCP referred appellant for a second opinion evaluation with
Dr. Solomon Miskin, a Board-certified psychiatrist. In a January 5, 2011 report, Dr. Miskin found
that appellant continued to exhibit symptoms of PTSD, but that she could return to her regular
work duties with the restrictions that she not be assigned to violent patients or those with a known
history of combativeness.
Drs. Goldman and Robins continued to support appellant’s diagnosis of PTSD and
disability from work through August 25, 2011.
On August 26, 2011 OWCP referred appellant, a statement of accepted facts (SOAF), and
a list of questions for an impartial medical examination with Dr. Harry Aaron, a Board-certified
psychiatrist.
In a report dated October 14, 2011, Dr. Aaron noted appellant’s history of injury and her
symptoms of occasional nightmares and disturbing memories of her assault. He reported that she
had returned to the employing establishment without significant emotional discomfort and that she
felt emotionally ready to return to her duties and to work with patients even if they had a history
of violence. Appellant noted that she wanted to return to work without restrictions. Dr. Aaron
diagnosed PTSD, chronic type, and paranoid personality disorder. He agreed that it was in
appellant’s best interest to return to work to aid in her continuing recovery. Dr. Aaron also
recommended that appellant be given up to one year to pass her social work licensing examination.
He found that the intensity of appellant’s PTSD had diminished to the extent that it no longer
interfered with her test-taking ability. Dr. Aaron found that, although appellant continued to suffer

from the symptoms of PTSD, the intensity of the symptoms had diminished to the point that she
was no longer psychiatrically disabled by her disorder and could immediately return to work with
no restrictions.
Appellant continued to treat with Dr. Goldman through November 2, 2012 and Dr. Robins
through July 15, 2014. On March 22, 2012 Dr. Goldman found that appellant was unable to return
to work due to continuing health problems, even though she had a strong desire to resume
employment. Her last note, dated November 2, 2012, addressed stress associated with interactions
with the employing establishment and the rehabilitation counselor. Dr. Goldman indicated that
appellant was considering disability retirement, but did not specifically address her ability to return
to work due to PTSD. Dr. Robins completed a series of weekly and biweekly form reports.
On January 15, 2015 the employing establishment offered appellant a light-duty position
as a financial account technician. Appellant accepted the light-duty position on January 26, 2015
and returned to work on February 9, 2015.
On June 28, 2016 OWCP authorized right shoulder rotator cuff repair.
Appellant filed a notice of recurrence (Form CA-2a) on August 8, 2017 alleging that on
June 15, 2017 she sustained a recurrence of disability causally related to her November 18, 2009
employment injury. On August 15, 2017 she underwent right shoulder surgery.
By decision dated August 18, 2017, OWCP accepted that appellant sustained a recurrence
of disability on June 15, 2017 due to the accepted right shoulder condition and resultant surgery.
On October 10, 2017 it placed her on the periodic rolls, with wage-loss compensation retroactive
to September 16, 2017.
On September 20 and November 15, 2017 appellant’s attending physician, Dr. David
Capiola, a Board-certified orthopedic surgeon, found that she was totally disabled from work.
By letter dated November 27, 2017, the employing establishment informed appellant that
her term appointment as a “social worker associate” would be terminated effective
December 30, 2017.
On January 19, 2018 OWCP referred appellant, a SOAF, and a series of questions to
Dr. Andrew Farber, an osteopath specializing in orthopedic surgery, to address her disability from
work.
In a February 5, 2018 report, Dr. Farber noted appellant’s history of injury and medical
treatment and performed a physical examination, noting that appellant walked without an assistive
device or antalgic gait. He found that appellant was neurovascularly intact in the upper extremities,
but had some hypertrophic paraspinal musculature on the right extending toward the trapezial
region. Dr. Farber found loss of range of motion (ROM) in the neck. Regarding appellant’s lumbar
spine, Dr. Farber reported loss of ROM and positive straight leg raising with no radicular
symptoms and no reflex abnormalities. He noted that appellant’s right shoulder was recovering
from surgery. Dr. Farber found that she had disabling residuals of her accepted conditions
including hypertonic paraspinal musculature on the right and limited ROM. He determined that
appellant’s conditions had not resolved, but that she had reached maximum medical improvement
3

and could return to her date-of-injury job eight hours a day with no restrictions. Dr. Farber noted
that appellant believed that she could adequately walk, sit, write, and stand when needed.
On February 7, 2018 Dr. Capiola found that appellant could return to part-time work for
six hours a day beginning March 12, 2018. On February 15 and March 1, 2018 Dr. Irfan Alladin,
a Board-certified orthopedic surgeon, noted appellant’s history of injury and listed her diagnoses
as low back pain, thoracic spine pain, cervicalgia, shoulder pain, cervicobrachial syndrome,
cervical radiculopathy, and lumbar radiculopathy.
On February 15 and March 1, 2018 Dr. Torrance Winn, a physician Board-certified in pain
medicine, completed form reports and opined that appellant could not return to work due to pain
and restricted movement of her neck, mid and lower back, and right shoulder.
In a letter dated March 19, 2018, OWCP requested a supplemental report from Dr. Farber
and provided him with appellant’s date-of-injury position description as well as her limited-duty
position as a financial accounts technician. On March 23, 2018 Dr. Farber provided an addendum
after he reviewed the position description, and opined that appellant was capable of returning to
her position as a social worker.
In a March 28, 2018 form report, Dr. Capiola found that appellant was totally disabled due
to limited ROM of her right shoulder.
On April 25, 2018 OWCP provided appellant with a notice of proposed termination of her
wage-loss compensation. It found that Dr. Aaron’s October 14, 2011 report established that she
was no longer psychiatrically disabled and could return to work in her date-of-injury position.
OWCP noted that appellant had remained under psychological treatment from Dr. Robins and
returned to full-time limited-duty work on February 9, 2015 as a financial accounts technician until
her right shoulder surgery. It found that Dr. Farber’s February 5, 2018 report established that she
had no continuing physical disability and could return to her date-of-injury position, despite her
ongoing medical residuals. OWCP afforded appellant 30 days to submit additional evidence or
arguments if she disagreed. Appellant did not respond.
By decision dated May 29, 2018, OWCP terminated appellant’s wage-loss compensation
effective May 30, 2018.
On May 31, 2018 counsel requested that OWCP further develop the issue of appellant’s
psychiatric condition and resulting disability, if any.
In a report dated May 24, 2018, Dr. Winn continued to list appellant’s diagnosed
conditions.4
On August 13, 2018 appellant underwent a lumbar spine magnetic resonance imaging
(MRI) scan which demonstrated a herniated disc at L3-4 and disc bulges at L1-2, L2-3, L4-5, and
L5-S1.

4

In August 2 and 30, 2018 reports, Dr. Winn repeated his diagnoses.

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On August 20, 2018 Dr. Alladin opined that appellant could not work due to pain and
limited movement from ongoing pain.
On August 22, 2018 appellant underwent an
electromyogram and a nerve conduction velocity (EMG/NCV) study, which demonstrated
evidence of right L5-S1 lumbar radiculopathy and sensory neuropathy of the bilateral lower
extremities.
On December 4, 2018 appellant, through counsel, requested reconsideration of the May 29,
2018 decision. Counsel contended that the medical evidence that appellant’s PTSD was no longer
disabling was stale and failed to establish that the condition had resolved. He further contended
that there was an existing conflict of medical opinion evidence between Dr. Farber and appellant’s
attending physicians. Counsel provided a report dated August 28, 2018 from Dr. Capiola and an
August 29, 2018 report from Dr. Goldman.
On August 28, 2018 Dr. Capiola found that appellant was totally disabled and diagnosed
status post right shoulder arthroscopy. He noted that she had requested to return to work due to
financial constraints in August 2018 and that the accident of November 18, 2009 was the
competent producing cause of her disability.
In her August 29, 2018 report, Dr. Goldman addressed appellant’s ongoing PTSD. She
opined that appellant could no longer function optimally under conditions of stress or in crowds
as she had flashbacks of the attack. Dr. Goldman noted that appellant’s sleep was interrupted and
disturbed by nightmares. She found that appellant was hyper-alert and fearful that the unexpected
could recur. Dr. Goldman found that without the wherewithal to resume her pre-accident life, she
was unable to work at a job that had defined who she was. She reported that appellant continued
to ruminate about the employment injury and had developed a personality that was inconsistent
with her pre-accident personality. Dr. Goldman opined that appellant’s moodiness, tearfulness,
obsessive thinking, anxiety, and sadness did not predate her employment injury.
On October 18, 2018 Dr. Capiola provided an addendum to his August 28, 2018 report and
noted that appellant continued to have severe pain in her right shoulder, difficulties lifting, lifting
overhead, typing, and sleeping on her right shoulder. He reported physical findings including
edema, tenderness, and positive Hawkin’s and Neer signs. Dr. Capiola found that appellant was
totally disabled from her work as a social worker due to her inability to type as well as her inability
to lift files and paperwork. He noted that in February 2015 appellant had requested a return to
work due to financial constraints.
In a December 5, 2018 report, Dr. Jacob Nir, a Board-certified physiatrist, found that
appellant was disabled from all work due to continued restricted motion, pain, and weakness to
the right arm. He diagnosed cervical and lumbar radiculopathy with nerve root involvement.
Dr. Nir noted that appellant had returned to clerical work which entailed typing and sitting for
prolonged periods. He advised that appellant could not perform these duties.
On February 21, 2019 OWCP referred appellant, a SOAF, and a list of questions for a
second opinion evaluation with Dr. Tara Brass, a Board-certified psychiatrist.
In her March 20, 2019 report, Dr. Brass noted appellant’s history of injury and described
her medical treatment. She diagnosed PTSD causally related to the accepted employment injury.

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Dr. Brass recommended further psychiatric treatment. She found a moderate, partial disability,
but determined that appellant was able to return to work part time to minimize stress.
In a decision dated May 30, 2019, OWCP affirmed the finding that appellant was not totally
disabled as her physicians had not provided a rationalized medical explanation for her continued
disability. It determined, therefore, that the weight of the medical evidence remained with
Dr. Farber who found that she was capable of physically returning to her date-of-injury position
as a social worker. With regard to appellant’s continuing disability due to PTSD, OWCP further
found that appellant continued to be partially disabled due to this condition and continued to
require medical treatment. Therefore, it vacated this aspect of the May 29, 2018 termination
decision and thus, the issue of termination of wage-loss compensation due to PTSD is not before
the Board on appeal.5
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.6 After it has determined that an employee
has disability causally related to his or her federal employment, it may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.7
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective May 30, 2018.
OWCP terminated appellant’s wage-loss compensation effective May 30, 2018 due to her
accepted physical conditions based on the February 5 and March 23, 2018 reports of Dr. Farber,
OWCP’s referral physician. In his February 5, 2018 report, Dr. Farber found that appellant had
some hypertrophic paraspinal musculature on the right extending toward the trapezial region as
well as loss of ROM in the neck. Regarding appellant’s lumbar spine, he reported loss of ROM
and positive straight leg raising. Dr. Farber found that appellant had disabling residuals of her
accepted conditions, that her conditions had not resolved, but that she could return to her date-ofinjury job eight hours a day. He noted that appellant believed that she could adequately walk, sit,
write, and stand when needed. In his March 23, 2018 addendum, Dr. Farber reviewed appellant’s
date-of-injury position description, and opined that appellant was capable of returning to her
position as a social worker.

5
See S.S., Docket No. 19-1091 (issued December 3, 2019) (in which an OWCP hearing representative vacated a
termination decision and that decision was not before the Board on appeal).
6

M.M., Docket No. 17-1264 (issued December 3, 2018).

7

E.B., Docket No. 18-1060 (issued November 1, 2018).

8

G.H., Docket No. 18-0414 (issued November 14, 2018).

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The Board notes that Dr. Farber provided no specific objective medical findings to
substantiate that appellant’s accepted conditions had resolved, such that she was no longer
disabled. Dr. Farber related that she continued to have hypertrophic paraspinal musculature on the
right extending toward the trapezial region as well as loss of ROM in the neck and in the lumbar
spine with positive straight leg raising, but he opined that she was not totally disabled. To establish
that appellant is no longer disabled due to the accepted conditions, the medical evidence must
explain that she ceased to exhibit objective findings of the accepted conditions.9 Dr. Farber
provided a conclusory opinion, without rationalized objective support for his opinion that
appellant’s disability had ceased.10
The Board has held that the weight of a medical opinion is determined by the opportunity
for and thoroughness of examination, the accuracy and completeness of the physician’s knowledge
of the facts of the case, the medical history provided, the care of analysis manifested, and the
medical rationale expressed in support of stated conclusions.11 As Dr. Farber provided no medical
reasoning and merely communicated appellant’s belief that she could return to work, his report is
insufficient to meet OWCP’s burden of proof.12 The Board therefore finds that Dr. Farber’s
opinion is of limited probative value on the underlying issue of this case because he failed to
provide a rationalized medical opinion based on objective findings, that appellant ceased to have
disability or residuals of her accepted employment-related physical conditions.13
For these reasons, the Board finds that OWCP has not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits effective May 30, 2018.14
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective May 30, 2018.

9

M.R., Docket No. 20-0707 (issued November 30, 2020): A.D., Docket No. 18-0497 (issued July 25, 2018).

10

R.G., Docket No. 16-0271 (issued May 18, 2017).

11

G.B., Docket No. 20-0750 (issued October 27, 2020); A.R., Docket No. 20-0335 (issued August 7, 2020).

12

Cf. L.A., Docket No. 19-0820 (issued December 6, 2019) (finding that medical rationale is based on an
independent analysis rather than a claimant’s belief).
13

G.B., supra note 11.

14

In light of the Board’s disposition in Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the May 30, 2019 decision of the Office of Workers’
Compensation Programs is reversed.15
Issued: February 23, 2021
Washington, DC

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

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

15
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board effective January 20, 2021.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIAL COMMAND, Texarkana, TX,
Employer
__________________________________________

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Appearances:
William D. Fenaughty, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 11-1491
Issued: February 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 9, 2011 appellant filed an appeal of a May 9, 2011 merit decision of the Office
of Workers’ Compensation Programs (OWCP) denying his 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 has met his burden of proof to establish that he sustained
an injury in the performance of duty on January 22, 2011, as alleged.
FACTUAL HISTORY
On February 22, 2011 appellant, then a 60-year-old heavy mobile equipment mechanic
inspector, filed a traumatic injury claim alleging that he injured his right shoulder on January 22,
2011 while in the performance of duty. He explained that, while inspecting a vehicle, he crawled
1

5 U.S.C §§ 8101-8193.

down inside but the hydraulic seat did not work so he pulled himself out of the vehicle and
injured his right shoulder. Appellant did not stop work at that time.
The employing establishment submitted February 24 and March 7, 2011 letters
controverting the claim. In a March 10, 2011 letter, appellant’s supervisor, Larry Welch, noted
that, on January 24, 2011, appellant reported having a hard time looking at the Armored Security
Vehicles (ASV) because of his neck surgery. He indicated that appellant asked to go to the clinic
on February 7, 2011 because he had hurt his shoulder getting out of an ASV on
January 22, 2011. Mr. Welch also noted that appellant had worked 12 hours of overtime on
January 22, 2011.
Also submitted were copies of diagnostic tests dated February 17 and 18, 2011 and
medical reports from Dr. Darius F. Mitchell, III, a Board-certified orthopedic surgeon. In a
February 18, 2011 report, Dr. Mitchell reported that appellant stated that he injured his shoulder
at work while working at night. He indicated that they had no documentation to show that this
was a work-related injury, outside a piece of paper which showed appellant had gone to a clinic
complaining of this injury as well. Dr. Mitchell noted examination findings and provided an
impression of right shoulder rotator cuff tear. In a March 7, 2011 report, he indicated that
appellant’s magnetic resonance imaging scan showed a glenohumeral tear of the supraspinatus,
tenosynovitis and arthritis. Dr. Mitchell discussed examination findings and noted that appellant
wanted to proceed with rotator cuff surgery.
In an April 1, 2011 letter, OWCP requested that appellant provide additional factual and
medical evidence supportive of his claim, including medical evidence diagnosing a condition in
connection with the claimed injury and a medical explanation as to how the reported work
incident caused or aggravated a medical condition.
Appellant submitted an April 11, 2011 statement, numerous e-mails from himself and
Mr. Welch, dated January 24 to April 11, 2011 discussing his shoulder injury, a February 7, 2011
record of injury report, a picture of an M1117 ASV hull, employee timesheets; and a February 7,
2011 report and treatment record from Robert Houser, an employing establishment physician’s
assistant, who noted that appellant reported injuring his right shoulder about two weeks earlier
while lifting himself out of an ASV hatch.
By decision dated May 9, 2011, OWCP denied appellant’s claim. It found that, while the
work-related incident, he pulled himself out of an ASV hull was established, the medical
evidence did not establish that a medical condition related to the January 22, 2011 incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable time

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limitation period of FECA, that an injury2 was sustained in the performance of duty, as alleged
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.4 An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6
ANALYSIS
OWCP accepted and the record supports, that appellant climbed out of an ASV hull on
January 22, 2011. Thereafter, a right rotator cuff tear was diagnosed in connection. The issue is
whether appellant submitted sufficient medical evidence to establish that the employment
incident caused an injury. The Board finds that the medical evidence is insufficient to establish
that the employment incident caused or aggravated a right shoulder condition.
On February 18, 2011 Dr. Mitchell stated that appellant had a right shoulder rotator cuff
tear and that he reported that he hurt the shoulder at work. While he advised that appellant “says
2

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
3

E.K., Docket No. 09-1827 (issued April 21, 2010).
Elaine Pendleton, 40 ECAB 1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003);

4

In clear-cut traumatic injury claims where fact of injury is established and competent to cause the condition
described, such as a fall from a scaffold resulting in a broken arm, a physician’s affirmative statement is sufficient
and no rationalized opinion on causal relationship is needed. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3d(2) (June 1995). In all other traumatic injury claims, a rationalized medical
opinion supporting causal relationship is required. Id. at Chapter 2.805.3d(3).
5

Id. Shirley A. Temple, 48 ECAB 404 (1997); see John J. Carlone, 41 ECAB 354 (1989).

6

See Gary J. Watling, 52 ECAB 278 (2001).

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it is a work-related injury,” he stated that he had “no documentation outside of this piece of
paper” showing that appellant presented to a clinic complaining of an injury. Dr. Mitchell did
not provide a clear opinion that appellant’s injury was employment related and he offered no
explanation as to how the January 22, 2011 accepted employment incident caused or aggravated
the diagnosed condition.7 In his March 7, 2011 report, Dr. Mitchell did not specifically address
the cause of appellant’s right shoulder condition. Thus, his reports of February 18 and March 7,
2011 are not sufficient to meet appellant’s burden of proof.
Reports of diagnostic testing are also insufficient to establish the claim as they fail to
address the medical issue of causal relationship.8 Also submitted were medical records from
Mr. Houser, a physician’s assistant. However, these reports are of limited probative value as a
physician’s assistant is not a “physician” as defined by section 8101(2) of FECA.9
Appellant has not submitted sufficient rationalized medical evidence to support his claim
that he sustained an injury causally related to the January 22, 2011 employment incident. He has
failed to meet his burden of proof. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference of causal relation.10
An award of compensation may not be based on surmise, conjecture, speculation or on the
employee’s own belief of causal relation.11 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and OWCP
properly denied his claim for compensation.
On appeal, appellant expressed his frustration regarding the processing of his claim and
argues that the evidence supports that his injury is work related. For the reasons set forth, his
claim was properly denied because the medical evidence is insufficient to establish causal
relationship between the right shoulder condition and the January 22, 2011 work incident. While
appellant’s representative also submitted a December 19, 2011 letter requesting that the case be
remanded for appellant to pursue other review options, for the reasons set forth, there is no basis
for a remand by the Board as OWCP properly denied his claim. Appellant, however, 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.

7

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
8

Id.

9

J.M., 58 ECAB 303 (2007). See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also
Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be
given by a qualified physician).
10

Daniel O. Vasquez, 57 ECAB 559 (2006).

11

D.D., 57 ECAB 734 (2006).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury on January 22, 2011, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 9, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Chicago, IL, Employer
__________________________________________

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

Docket No. 16-0191
Issued: April 21, 2016

Case Submitted on the Record

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

JURISDICTION
On November 11, 2015 appellant, through counsel, filed a timely appeal from a
September 17, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish cervical or hand
conditions causally related to an October 29, 2012 employment incident.
FACTUAL HISTORY
On November 28, 2012 appellant, a 58-year-old veteran service representative, filed an
occupational disease claim (Form CA-2) alleging that she sustained a cervical injury on
1

5 U.S.C. § 8101 et seq.

October 29, 2012 as a result of reaching up to grab a form from an upper shelf in the
performance of duty.2 She stated that she heard her neck crack, and then later that day she turned
her head and felt her neck lock. Appellant did not stop work.
An OWCP Form CA-16, authorization for examination, was issued by the employing
establishment on November 28, 2012. Appellant was authorized to visit Chicago Health and
Physical Therapy in Chicago, Illinois. She submitted an undated attending physician’s report
from Dr. Richard Dietzen, a chiropractor, who asserted that appellant developed severe pain
while reaching up to a shelf and hyperextended her neck. Dr. Dietzen diagnosed cervical
brachial syndrome and carpal tunnel syndrome and opined that appellant’s conditions were
commonly associated with office or computer keyboard work.
In a November 27, 2012 report, Dr. Dietzen indicated that appellant continued to have
left-side neck and shoulder pain and noted objective joint restriction and tenderness throughout
the cervical spine, most notable on the left. Appellant also submitted reports dated
November 19, 2012 through January 3, 2013 from a physical therapist.
In a February 13, 2013 letter, OWCP advised appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted an x-ray of the cervical spine dated November 20,
2012 which demonstrated mild malalignment of the cervical vertebrae, more pronounced at C4
over C5 and severe degenerative disc disease, and borderline foraminal stenosis at C4-6. She
also submitted reports dated February 26 and March 12, 2013 from Dr. Thomas Albert, an
internist, who found tender palpation of the cervical spine at C4-7, right greater than left, and
diagnosed cervicalgia.
In reports dated January 8 through March 21, 2013, Dr. Dietzen reported that appellant
continued to suffer from neck pain. On February 12, 2013 he diagnosed significant degenerative
joint disease and found joint restriction and tenderness of the lower cervical spine with trigger
points in the mid-thoracic region.
By decision dated April 1, 2013, OWCP denied appellant’s claim because she failed to
establish a medical condition causally related to the accepted work factors.
On April 25, 2013 appellant’s counsel requested an oral hearing before an OWCP hearing
representative. Appellant submitted reports dated April 2 and May 11, 2013 from Dr. Albert
who reported that appellant continued to suffer neck pain and reiterated his diagnosis. On
August 7, 2013 Dr. Albert diagnosed cervical radiculopathy, cervical myofascitis, and cervical
spondylosis. He noted that appellant was reaching at work and felt a crack in her neck.
Dr. Albert found multiple trigger points and tenderness throughout the cervical spine. He opined
that appellant’s conditions were causally related to the employment incident.
In reports dated April 13, June 5 and 20, 2013, Dr. Dietzen noted that appellant continued
to have neck and low back pain. In an undated report, he found that appellant was nearing
2

Appellant’s counsel subsequently requested that the claim be adjudicated as a traumatic injury claim.

2

maximum medical improvement and opined that her injury would resolve conservatively without
surgical intervention.
In reports dated May 31 through October 8, 2013, Dr. Sajjad Murtaza, a Board-certified
physiatrist, diagnosed cervical radiculopathy, bilateral carpal tunnel syndrome, and facet
arthropathy, right greater than left. He noted that appellant had an accident at work on
October 29, 2012. Appellant was carrying some work above her head when she felt a sudden
crack in her cervical spine and pain that radiated down from her cervical spine into her right
trapezius and shoulder area. Physical examination revealed tenderness to palpation of the
cervical spine, a positive Spurling’s test on the right side, and tenderness to palpation throughout
the superior spinals on the right. Dr. Murtaza also found right shoulder abduction weakness
compared to the left side and signs of bilateral carpal tunnel syndrome with a positive Tinel’s
and Phalen’s sign upon examination. On June 14, 2013 he released appellant to light-duty work
effective June 17, 2013 with the following restrictions: no overhead activity; no lifting over 10
pounds.3 Appellant also submitted additional physical therapy reports.
A telephonic oral hearing was held on September 4, 2013. During the hearing, appellant
testified that she sustained a traumatic injury at work on October 29, 2012 when she reached up
to grab a form and heard her neck crack. Counsel argued that the medical evidence of record
was sufficient to establish a causal relationship between appellant’s conditions and the
October 29, 2012 employment incident.
By decision dated November 21, 2013, an OWCP hearing representative affirmed as
modified the April 1, 2013 denial of the claim, finding that appellant had not submitted sufficient
medical evidence to establish causal relationship between the October 29, 2012 work incident
and her diagnosed conditions.
On April 7, 2014 counsel requested reconsideration.
Appellant submitted
electromyography (EMG) and nerve conduction velocity (NCV) studies dated November 5, 2013
which were positive for cervical spine radiculopathy at C5-6. In a report dated November 19,
2013, an unidentified healthcare provider diagnosed cervicalgia and cervical radiculopathy at
C5-6 based upon EMG results.
On March 10, 2014 Dr. Albert reiterated the factual history of appellant’s claim and
opined that reaching up from a seated position contributed to appellant’s medical diagnosis of
cervical radiculopathy, which was caused by a sudden extension/strain that closed on the neural
foramen resulting in nerve injury. He further opined that repetitive neck movements of looking
down on a claim file and then up into a computer on a constant basis over eight hours per day for
over seven and a half years aggravated and contributed to the acceleration of appellant’s
degenerative condition. Dr. Albert concluded that these factors were the direct and proximate
cause of appellant’s cervical radiculopathy at C5-6 which was confirmed by EMG and NCV
studies.
3

A June 10, 2013 magnetic resonance imaging (MRI) scan of the cervical spine revealed moderate spondylotic
change and disc desiccation at C4-6, mild reversal of the normal cervical spine lordosis with trace retrolisthesis of
C4 over C5, abnormal appearance of the right facet joint at C3-4, and multilevel mild-to-moderate foraminal
narrowing in the mid-cervical spine.

3

By decision dated September 17, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury5 was sustained in the performance of
duty, as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that her condition relates to the employment incident.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
OWCP has accepted that the employment incident of October 29, 2012 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s cervical or hand
conditions resulted from the October 29, 2012 employment incident. The Board finds that she
did not meet her burden of proof to establish a causal relationship between the claimed
conditions and the October 29, 2012 employment incident.

4

Id.

5

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
6

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

7

Id.

8

Id.

4

In his reports, Dr. Albert diagnosed cervicalgia, cervical radiculopathy, cervical
myofascitis, and cervical spondylosis. He noted that appellant was reaching at work and felt a
crack in her neck and concluded that her conditions were causally related to the employment
incident. On March 10, 2014 Dr. Albert opined that reaching up from a seated position
contributed to appellant’s medical diagnosis of cervical radiculopathy, which was caused by a
sudden extension/strain that closed on the neural foramen resulting in nerve injury. He further
opined that repetitive neck movements of looking down on a claim file and then up into a
computer on a constant basis over eight hours per day for over seven and a half years aggravated
and contributed to the acceleration of appellant’s degenerative condition. Dr. Albert concluded
that these factors were the direct and proximate cause of appellant’s cervical radiculopathy at
C5-6 which was confirmed by EMG and NCV studies. However, he did not provide sufficient
medical rationale explaining the mechanism of how appellant’s cervical conditions were caused
or aggravated by repetitive neck movements or reaching at work on October 29, 2012.
Dr. Albert’s opinion was based, in part, on temporal correlation. The Board has held that neither
the mere fact that a disease or condition manifests itself during a period of employment, nor the
belief that the disease or condition was caused or aggravated by employment factors or incidents
is sufficient to establish a causal relationship.9 Dr. Albert did not otherwise sufficiently explain
the reasons why diagnostic testing and examination findings led him to conclude that the
October 29, 2012 work incident caused or contributed to the diagnosed conditions. Medical
opinion evidence submitted to support the claim should offer a sound medical explanation by the
physician of how the specific employment duties physiologically caused or aggravated her
claimed conditions.10 Thus, the Board finds that the reports of Dr. Albert are insufficient to
establish that appellant sustained an employment-related injury.
Dr. Murtaza diagnosed cervical radiculopathy, bilateral carpal tunnel syndrome, and facet
arthropathy, right greater than left. He asserted that appellant had an accident at work on
October 29, 2012 while she was carrying some work above her head and above her shoulder
when she felt a sudden crack in her cervical spine and pain that radiated down from her cervical
spine into her right trapezius and shoulder area. The Board finds that Dr. Murtaza failed to
provide a rationalized opinion explaining how the October 29, 2012 work incident, such as
carrying work above her head and shoulder, caused or aggravated her claimed conditions.
Dr. Murtaza noted that appellant’s conditions occurred while she was at work, but such
generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how her
physical activity at work actually caused or aggravated the diagnosed conditions.11 He failed to
provide an opinion adequately addressing how the October 29, 2012 employment incident
contributed to appellant’s conditions. Thus, the Board finds that the reports from Dr. Murtaza
are insufficient to establish that appellant sustained an employment-related injury.

9

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

10

See D.B., Docket No. 15-1506 (issued October 26, 2015).

11

See K.W., Docket No. 10-98 (issued September 10, 2010).

5

The reports from appellant’s chiropractor, Dr. Dietzen, are of no probative medical value
as he failed to diagnose spinal subluxation or document whether x-rays were taken.12 As such,
the Board finds that appellant did not meet her burden of proof with the submission of this
evidence. Appellant also submitted a November 19, 2013 report from a healthcare provider
whose identity cannot be discerned from the record. Because it cannot be determined whether
this record is from a physician as defined in 5 U.S.C. § 8101(2), it does not constitute competent
medical evidence.13 Likewise, physical therapy reports submitted by appellant do not constitute
competent medical evidence because physical therapists are not considered “physicians” as
defined under FECA.14 This evidence is therefore of no probative medical value.
The other medical evidence of record, including diagnostic test reports, is of limited
probative value and insufficient to establish the claim as it does not specifically address whether
appellant’s diagnosed conditions are causally related to the October 29, 2012 work incident.15
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. As
appellant has not submitted any rationalized medical evidence to support her allegation that she
sustained an injury causally related to the October 29, 2012 employment incident, the Board
finds that she failed to meet her burden of proof to establish a claim for compensation.
The Board also notes that the employing establishment issued appellant a Form CA-16 on
November 28, 2012 authorizing medical treatment. The Board has held that where an employing
establishment properly executes a Form CA-16, which authorizes medical treatment as a result of
an employee’s claim for an employment-related injury, it creates a contractual obligation, which
does not involve the employee directly, to pay the cost of the examination or treatment regardless
of the action taken on the claim.16 Although OWCP denied appellant’s claim for an injury, it did
not address whether she is entitled to reimbursement of medical expenses pursuant to the Form
CA-16. Upon return of the case record, OWCP should further address this issue.

12

Section 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by xray to exist and subject to regulations by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
13

R.M., 59 ECAB 690, 693 (2008). See C.B., Docket No. 09-2027 (issued May 12, 2010) (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) and reports lacking proper identification do not constitute
probative medical evidence).
14

5 U.S.C. § 8101(2). See Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
15

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).
16

See D.M., Docket No. 13-535 (issued June 6, 2013). See also 20 C.F.R. § 10.300.

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
cervical conditions are causally related to an October 29, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

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

Docket No. 16-1524
Issued: February 6, 2017

Case Submitted on the Record

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

JURISDICTION
On July 22, 2016 appellant filed a timely appeal from an April 22, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
effective April 22, 2016 due to her failure to attend a scheduled medical examination.
FACTUAL HISTORY
On August 29, 2009 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 27, 2009 she sustained a fracture of the right little

1

5 U.S.C. § 8101 et seq.

finger when another employee lifted a shelf while she was pulling on the side of a general
purpose mail container (GPMC), causing her finger to break. She did not stop work.2
OWCP accepted the claim for closed fracture of the right digit of the distal phalanx.
Appellant was released to work without restrictions on March 4, 2010.
On June 12, 2015 appellant filed a claim for a schedule award (Form CA-7).
Appellant was referred by OWCP to Dr. Brent Sprinkle, an osteopathic physician, for a
second opinion evaluation to determine whether appellant had a permanent impairment of her
right upper extremity causally related to her accepted employment injuries. On August 24, 2015
Dr. Sprinkle reported that appellant’s diagnosis was closed fracture of the distal phalanges of the
right hand. He provided examination findings and concluded that she had one percent permanent
impairment of the right hand pursuant to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment.3 In a report dated January 28, 2016,
Dr. Sprinkle noted diagnoses of right carpal tunnel syndrome and lesion of the right ulnar nerve.
He concluded that appellant had 10 percent permanent impairment of the right upper extremity
pursuant to the A.M.A., Guides.
In a report dated February 8, 2016, an OWCP medical adviser reviewed the record and
found that, based upon Dr. Sprinkle’s examination findings appellant had three percent
permanent impairment of the right little finger pursuant to the A.M.A., Guides. In a second
report dated February 26, 2016, the district medical adviser noted that Dr. Sprinkle had found
that appellant had 10 percent permanent impairment of the right upper extremity due to ulnar and
median nerve entrapment. He also related that a review of appellant’s medical records revealed
that appellant’s physician Dr. Rooney had reported on March 7, 2007 that appellant had full
sensation in the right upper extremity, following surgery, which conflicted with Dr. Sprinkle’s
findings of decreased sensation in the ulnar nerve distribution. The district medical adviser
concluded that his review of appellant’s medical records revealed a significant conflict between
Dr. Rooney and Dr. Sprinkle as to appellant’s neurological examination that could not be
resolved on the basis of a medical records review.
By letter dated March 16, 2016, OWCP notified appellant that an impartial medical
examination was needed in order to address the conflict in medical evidence between her
attending physician and the second opinion physician regarding her permanent impairment rating
and date of maximum medical improvement. It advised that an appointment had been scheduled
for April 1, 2016 at 1:00 p.m. with Dr. Kenneth Rosenzweig, a Board-certified orthopedic
surgeon, for an impartial medical examination. Appellant was further advised that, if she refused
or obstructed the examination, her compensation could be suspended under 5 U.S.C. § 8123(d).
2

The Board notes that appellant also has a September 19, 2006 occupational disease claim which was accepted
for right carpal tunnel syndrome and right ulnar nerve lesion. Appellant was released to work without restrictions on
May 23, 2007. (OWCP File No. xxxxxx735). Appellant’s treating physician, Dr. Thomas P. Rooney, Boardcertified in orthopedic surgery, reported on September 17, 2009 that appellant had no symptoms regarding her right
carpal tunnel condition. He also noted that her scar was well healed, that she had full function, no sensory deficit,
no atrophy and no permanent impairment.
3

A.M.A., Guides (6th ed. 2009).

2

An April 5, 2016 e-mail correspondence, reflects that OWCP was notified by the
impartial medical examiner that appellant did not appear for her April 1, 2016 examination.
On April 6, 2016 OWCP proposed to suspend appellant’s compensation benefits pursuant
to section 8123(d) of FECA for failure to attend the April 1, 2016 examination with
Dr. Rosenzweig. Appellant was advised that she should provide a written explanation of her
reasons, with substantive corroborating evidence, within 14 days for failing to attend the
scheduled examination. She did not respond.
By decision dated April 22, 2016, OWCP finalized its proposed suspension effective that
same date. It noted that it directed appellant on March 16, 2016 to report for the examination
scheduled on April 1, 2016 but she did not attend the examination or show good cause for her
failure to attend the examination as she failed to respond to the proposed suspension.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.4
The determination of the need for an examination, the type of examination, the choice of locale,
and the choice of medical examiners are matters within the province and discretion of OWCP.5
OWCP regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.6
Section 8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit
to or obstructs a directed medical examination, his or her right to compensation is suspended
until the refusal or obstruction ceases.7 OWCP procedures provide that, before OWCP may
invoke these provisions, the employee is to be provided a period for 14 days within which to
present in writing his or her reasons for the refusal or obstruction.8 If good cause for the refusal
or obstruction is not established, entitlement to compensation is suspended in accordance with
section 8123(d) of FECA.9
ANALYSIS
OWCP scheduled an impartial medical examination on April 1, 2016 with
Dr. Rosenzweig. Appellant did not appear for the scheduled examination. By decision dated
April 22, 2016, OWCP suspended her compensation benefits based on her failure to appear. The

4

5 U.S.C. § 8123.

5

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

6

20 C.F.R. § 10.320.

7

Supra note 4; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.13(d) (September 2010).
9

Id.

3

Board finds that OWCP properly suspended appellant’s compensation for failure to attend a
medical examination on April 1, 2016.
The determination of the need for an examination, the type of examination, the choice of
locale, and the choice of medical examiners are matters within the province and discretion of
OWCP. The only limitation on OWCP’s authority, with regard to instructing a claimant to
undergo a medical examination, is that of reasonableness.10 The Board has interpreted the plain
meaning of section 8123(d) to provide that compensation is not payable while a refusal or
obstruction of an examination continues.11
On March 16, 2016 OWCP advised appellant that it would refer her for an impartial
medical examination and that, if she did not keep the appointment, her benefits could be
suspended. Appellant was referred for an impartial medical evaluation with Dr. Rosenzweig and
was advised of the need for the examination and the time and place for the scheduled
appointment. She did not attend the scheduled April 1, 2016 appointment. OWCP subsequently
allowed appellant 14 days to provide reasons for failing to appear. Again, appellant did not
respond. As she did not respond to the proposed suspension, appellant has not established good
cause for refusing to undergo the April 1, 2016 examination.12 OWCP properly suspended her
right to future compensation benefits effective April 22, 2016 pursuant to section 8123 of
FECA.13
Thus, the Board finds that OWCP properly suspended entitlement to compensation in
accordance with 5 U.S.C. § 8123(d) until the date on which appellant agrees to attend the
examination. When appellant actually reports for examination, payment retroactive to the date
on which she agreed to attend the examination may be made.14
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective April 22, 2016 for failure to attend a medical examination.

10

Lynn C. Huber, 54 ECAB 281 (2002).

11

M.B., Docket No. 10-1755 (issued March 24, 2011).

12

L.B., Docket No. 14-2005 (issued January 28, 2015).

13

Supra note 4; S.B., 58 ECAB 267 (2007).

14

C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008). When the claimant
actually reports for examination, payment retroactive to the date on which the claimant agreed to attend the
examination may be made. Supra note 8 at Chapter 2.810.13(e) (September 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the April 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 12-930
Issued: September 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 20, 2012 appellant, through her attorney, filed a timely appeal from an
October 28, 2011 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 sustained bilateral carpal tunnel or tendinitis conditions
causally related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. On April 24, 2009 appellant, a 46-yearold mail clerk, filed a claim for injury to both wrists, arms and shoulders, due to repetitively
handling mail of various weights.
1

5 U.S.C. § 8101 et seq.

On January 5, 2011 the Board affirmed OWCP’s decisions dated October 13, 2009 and
January 21, 2010, which denied appellant’s claim. The Board found that the medical evidence of
record was not sufficient to establish that appellant’s bilateral carpal tunnel syndrome or bilateral
hand tendinitis were causally related to factors of her federal employment. The facts of the case as
set forth in the Board’s January 5, 2011 decision are herein incorporated by reference.
In a letter received by OWCP on May 2, 2011, appellant requested reconsideration. In a
report dated March 7, 2011, Dr. Elizabeth McKendry, a specialist in internal medicine, stated
that appellant had bilateral carpal tunnel syndrome and bilateral tendinitis. She advised that the
conditions were caused or aggravated by pushing carts, hand trucks and sorting mail. In an
April 20, 2011 report, Dr. McKendry opined that appellant’s claimed conditions were caused or
aggravated by continuously grasping and sorting mail.
By decision dated October 28, 2011, OWCP denied modification of the January 21, 2010
decisions.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
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 medical evidence required to establish causal relationship is usually rationalized medical
evidence. 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.5
2

5 U.S.C. §§ 8101-8193.

3

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

4

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

5

Id.

2

Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed bilateral carpal tunnel and hand
tendinitis conditions and her federal employment. This burden includes providing medical
evidence from a physician who concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.6
ANALYSIS
The Board finds that appellant failed to submit sufficient medical opinion which relates
her claimed bilateral carpal tunnel or bilateral hand tendinitis conditions to factors of her
employment. For this reason, she has not met her burden of proof.
Appellant submitted reports from Dr. McKendry, who related findings of pain on
examination and diagnosed bilateral carpal tunnel syndrome and bilateral hand tendinitis.
Dr. McKendry did not, however, provide a rationalized medical opinion addressing how the
claimed conditions or disability were causally related to appellant’s work as a mail clerk. She
diagnosed bilateral carpal tunnel syndrome and bilateral tendinitis in her March 7 and April 20,
2011 reports and generally indicated that these conditions were caused or aggravated by her
employment duties such as repetitive motions, handling, sorting and lifting mail. The reports
from Dr. McKendry are of limited probative value as they do not provide a full history of injury
or medical rationale explaining how appellant’s conditions were caused or contributed to by her
factors of employment.7 The weight of medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.8 Dr. McKendry did not sufficiently
describe appellant’s job duties with information including how often and how long she had
performed the alleged duties, or explain the medical process through which such duties would
have been competent to cause the claimed conditions. Her reports do not constitute adequate
medical evidence to establish that appellant’s claimed conditions were causally related to her
employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her conditions were caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
Appellant did not meet her burden of proof to establish that her claimed bilateral carpal
tunnel and bilateral hand tendinitis conditions are causally related to her employment.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

William C. Thomas, 45 ECAB 591 (1994).

8

See Anna C. Leanza, 48 ECAB 115 (1996).

9

Id.

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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 failed to meet her burden of proof to establish that her
claimed bilateral carpal tunnel and bilateral hand tendinitis conditions were sustained in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 13, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 19-1769
Issued: July 10, 2020

Case Submitted on the Record

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

JURISDICTION
On August 26, 2019 appellant filed a timely appeal from a March 1, 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 cervical condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 12, 2018 appellant, then a 57-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he injured his neck due to factors of his federal employment,
including the repetitive motions of casing and pulling down mail, carrying a mailbag weighing up
to 35 pounds, pushing and pulling postal equipment, operating a postal vehicle, and “placing mail
1

5 U.S.C. § 8101 et seq.

in and taking it out of mailboxes.” He noted that he first became aware of his condition on
December 30, 2014 and he first realized that his condition was caused or aggravated by his federal
employment on June 27, 2018. On the reverse side of the claim form, the employing establishment
indicated that appellant stopped work on May 16, 2016.
In an accompanying personal narrative statement dated June 28, 2018, appellant noted that
he had been a letter carrier for 16 years, and that his duties consisted of casing mail, pulling down
mail, delivering mail, loading and unloading mail and parcels into a postal vehicle, carrying a
mailbag on his neck/shoulder weighing up to 35 pounds, pushing and pulling postal equipment,
and placing mail in and taking it out of mailboxes. He noted that he performed these duties for a
minimum of eight hours a day, five days a week, and that they affected his neck. Appellant
indicated that in 2014 he began feeling pain, stiffness, and spasms in his neck, and since at the
time he felt those same symptoms in his shoulders, he thought that all of his symptoms were caused
by his shoulders. After his bilateral shoulder surgeries, however, he continued to experience
symptoms in his neck. Appellant noted that in the past eight months his symptoms worsened, so
he went to a physician and was diagnosed with cervical degenerative disc disease.
In a July 13, 2018 development letter, OWCP informed appellant that additional evidence
was required to establish his claim and advised him of the type of factual and medical evidence
required. It afforded him 30 days to submit the requested evidence.2
A May 14, 2018 x-ray of appellant’s cervical spine interpreted by Dr. Bruce Lowry, a
Board-certified radiologist, revealed a mild reversal of normal lordotic curvature and prominent
anterior osteophytes at C4-5 and C5-6 with left prominent anterior osteophytes at C3-4 and C6-7.
Appellant’s bony spinal canal appeared widely patent, and his cervical spine had very limited range
of motion in extension. Dr. Lowry’s impression included multilevel spondylosis most severe at
C4-5 and C5-6 and a limited range of motion in extension.
A May 14, 2018 cervical spine magnetic resonance imaging (MRI) scan, interpreted by
Dr. Lowry, demonstrated a straightening and mild reversal of the normal lordotic curvature. His
impression included multilevel degenerative changes with significant multilevel recess and
foraminal stenosis, with the most severe findings at C6-7 where there was an associated right
central subarticular and foraminal disc protrusion.
A June 27, 2018 medical report by Dr. Lashondria Simpson-Camp, a Board-certified
general surgeon, indicated that appellant complained of stiffness and pain in his neck. Appellant
indicated that he had prior issues with his neck and upper extremities and thought all of his
symptoms were caused by his bilateral shoulder injuries. After he had both shoulders repaired he
still felt tightness and stiffness in his neck, which prompted him to seek further treatment.
Dr. Simpson-Camp conducted a physical examination, which revealed tenderness in appellant’s
cervical spine at C5 through C7. Appellant had a limited range of motion with pain in his cervical
spine and decreased sensation to light touch in his left upper extremity.

2
In a July 19, 2018 revised development letter, OWCP again informed appellant that additional evidence was
required in support of his claim. It afforded him 30 days from the date of the revised letter to submit the requested
evidence.

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Dr. Simpson-Camp reviewed appellant’s May 14, 2018 cervical spine x-ray and MRI scan
and diagnosed cervical degenerative disc disease. She opined that his cervical degenerative disc
disease was a direct result of his factors of federal employment, including carrying a mailbag
around his neck weighing up to 35 pounds, lifting trays of mail, and reaching and lifting overhead.
Dr. Simpson-Camp explained that appellant turned his head from side to side when in his truck to
place mail into mailboxes and while pushing and pulling heavy equipment, and that this excessive
amount of repetitive abnormal mechanics and pressure on the cervical spine can cause injury
overtime due to the amount of stress and strain that is placed on the area while performing his
employment duties. She suggested that he would greatly benefit from physical therapy and other
interventions to improve his overall function.
On August 2, 2018 appellant submitted an OWCP questionnaire and provided more details
regarding the factors of his federal employment and his cervical symptoms.
By decision dated September 13, 2018, OWCP denied appellant’s occupational disease
claim finding that the evidence of record failed to establish a causal relationship between his
diagnosed condition and the accepted factors of his federal employment.
On October 11, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated March 1, 2019, an OWCP hearing representative affirmed the
September 13, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (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

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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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.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.9
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of his claim, appellant submitted a June 27, 2018 medical report by
Dr. Simpson-Camp which indicated that he complained of stiffness and pain in his neck.
Dr. Simpson-Camp noted his medical history of bilateral shoulder injuries, conducted a physical
examination, reviewed his x-ray and MRI scan of his cervical spine, and diagnosed cervical
degenerative disc disease. She opined that appellant’s cervical degenerative disc disease was a
direct result of the factors of his federal employment, including carrying a mailbag around his neck
weighing up to 35 pounds, lifting trays of mail, and reaching and lifting overhead. Dr. SimpsonCamp indicated that he turned his head from side to side when in his truck to place mail into
mailboxes and while pushing and pulling heavy equipment, and that this excessive amount of
repetitive abnormal mechanics and pressure on the cervical spine can cause injury due to the
amount of stress and strain that is placed on the area.
The Board finds that, while Dr. Simpson-Camp’s June 27, 2018 medical report is not fully
rationalized, it does provide an explanation of the physiological process by which appellant’s
accepted factors of federal employment could have resulted in the claimed cervical condition.10 It
is unnecessary that the evidence of record in a case be so conclusive as to suggest causal connection
beyond all possible doubt. Rather, the evidence required is only that which is necessary to
convince the adjudicator that the conclusion drawn is rational, sound, and logical.11 Dr. SimpsonCamp’s report provided a physiological explanation as to how the factors of appellant’s
employment as a city letter carrier caused his cervical condition.

6
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

K.P., Docket No. 18-0056 (issued January 27, 2020).

11

C.C., Docket No. 19-1631 (issued February 12, 2020).

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The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is
not a disinterested arbiter.12 Although the medical report by Dr. Simpson-Camp is alone
insufficient to meet appellant’s burden of proof to establish his claim, it does raise an
uncontroverted inference between the diagnosed cervical condition and the accepted employment
factors of his federal employment sufficient to require OWCP to further develop the claim.13
On remand OWCP shall prepare a statement of accepted facts and refer appellant to an
appropriate Board-certified specialist for a second opinion examination and an evaluation
regarding whether he sustained a medical condition due to the accepted factors of his federal
employment. Following any necessary further development deemed necessary, it shall issue a
de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 10, 2020
Washington, DC

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

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

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

12

See B.B., Docket No. 18-1321 (issued April 5, 2019).

13

E.G., Docket No. 19-1296 (issued December 19, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CHEYENNE VA MEDICAL CENTER,
Cheyenne, WY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1202
Issued: January 27, 2021

Case Submitted on the Record

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

On May 27, 2020 appellant filed a timely appeal from an April 27, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-1202.
On January 8, 2019 appellant, then a 34-year-old diagnostic radiologist technologist, filed
a traumatic injury claim (Form CA-1) alleging that on January 1, 2019 she sustained a low back
strain when assisting a patient who had a medical emergency while in the performance of duty.
She stopped work on January 1, 2019. OWCP accepted the claim for low back strain.
In a letter dated March 6, 2020, Kristi Roybal, a nurse practitioner, requested that OWCP
expand acceptance of the claim to include a bulge in the lumbar spine as an accepted condition
causally related to the January 1, 2019 employment injury.
In a development letter dated March 26, 2020, OWCP advised appellant that it had received
notification of a possible consequential condition of lumbar spine bulge. It advised her of the
medical and factual evidence required, including a rationalized report from a physician explaining
the cause of her back condition. OWCP afforded appellant 30 days to submit the necessary
evidence.

OWCP received February 21, and March 20, 2020 office notes from Nurse Practitioner
Roybal.
In a March 9, 2020 progress note, Dr. Kirby J. Duvall, a Board-certified family
practitioner, noted that appellant was seen for exacerbation of back pain. He advised that she had
multilevel disc disease and noted that she had a strain of the lower back. Dr. Duvall diagnosed
exacerbation of back pain and multilevel disc disease.
A March 21, 2019 magnetic resonance imaging (MRI) scan interpreted by Dr. Nathaniel S.
Charter, a Board-certified neurologist, revealed mild early degenerative disc disease from L3-L5
with mild effacement of the ventral thecal sac, mild bilateral foramina narrowing, and nonspecific
mild superficial subcutaneous soft tissue swelling.
In a report dated April 20, 2020, Dr. Mark R. Rangitsch, a Board-certified orthopedic
surgeon, acting as OWCP’s second opinion physician, noted that appellant had sustained injury at
L3-L4, and L4-L5.
On April 27, 2020 OWCP received a March 27, 2020 report by Dr. Harlan Ribnik, a pain
medicine specialist, wherein he noted diagnoses including lumbar radiculopathy, low back strain,
strain of low back fascia, low back tendon strain. He noted onset dates for appellant’s diagnoses
and provided left sacroiliac joint steroid injections. OWCP also received a January 23, 2020 report
from Nurse Practitioner Roybal.
By decision dated April 27, 2020, OWCP denied expansion of the acceptance of
appellant’s claim to include the additional diagnosis of lumbar spine bulge. It explained that the
medical evidence did not demonstrate that the additional medical condition was related to the
established work injury or illness. OWCP noted receipt of encounter notes from Nurse Practitioner
Roybal dated March 6, February 21, and March 20, 2020, as well as a progress report from
Dr. Duvall dated March 9, 2020, and a March 21, 2019 MRI scan report.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. The Couch principle applies with equal force when evidence is
received by OWCP the same day a final decision is issued.2
In its April 27, 2020 decision, OWCP indicated that the evidence received included a
March 21, 2019 MRI scan report, February 21, March 6 and March 20, 2020 notes from Nurse
Practitioner Roybal, and a March 9, 2020 report from Dr. Duvall. However, appellant also

1

41 ECAB 548 (1990); see also D.S., Docket No. 20-0589 (issued November 10, 2020); S.D., Docket No. 17-1818
(issued April 3, 2018).
2
See S.S., Docket No. 19-1737 (issued April 7, 2020); J.S., Docket No. 16-0505 (issued July 18, 2016); Linda
Johnson, 45 ECAB 439 (1994) (evidence received the same day as the issuance of OWCP’s decision).

2

submitted a March 27, 2020 report from Dr. Ribnik, January 23, 2020 notes from Nurse
Practitioner Roybal, and OWCP also received Dr. Rangitsch’s April 20, 2020 report.
It is crucial that OWCP address all relevant evidence received prior to the issuance of its
final decision, as the Board’s decisions are final with regard to the subject matter appealed.3 As
OWCP did not note receipt or consideration of these pertinent medical reports it possessed, it failed
to follow its own procedures by properly discussing the relevant medical reports of record.4 The
Board finds that this case is not in posture for decision, as OWCP did not address the above-noted
evidence in its April 27, 2020 decision.5 On remand, following any further development as
deemed necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the April 27, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: January 27, 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

3

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 1.
4

K.F., Docket No. 19-0888 (issued January 2, 2020).

5

Supra note 2.

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