United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUBMARINE BASE, Groton, CT, Employer
__________________________________________

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

Docket No. 09-833
Issued: November 9, 2009

Case Submitted on the Record

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

JURISDICTION
On February 9, 2009 appellant, through his attorney, filed a timely appeal of the
October 29, 2008 decision of the Office of Workers’ Compensation Programs’ hearing
representative finding permanent impairment for schedule award purposes. Pursuant to 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 more than three percent impairment of his left lower
extremity for which he has received a schedule award.
FACTUAL HISTORY
This is the second appeal in this case. On May 14, 1992 appellant, then a 44-year-old
hazardous waste handler, injured his neck, shoulder and arm while moving 55-gallon drums in
the performance of his federal duties. The Office accepted his claim for cervical radiculopathy
and granted him a schedule award for 12 percent impairment of the left upper extremity on
May 18, 1993. Appellant filed a second claim for traumatic injury on September 27, 2003 when

he slipped on cable and injured his left ankle. The Office accepted this claim for left ankle
strain. Appellant filed a third claim on January 20, 1998 alleging on January 17, 1998 he injured
his right and left thumbs and left heel when he slipped off the ladder of a railroad car. The
Office later accepted left ankle strain and authorized arthroscopy of the left ankle. Appellant
underwent an arthroscopy of the left ankle with debridement synovium and scar tissue on
September 15, 2000. The Office accepted lumbar sprain and strain as a result of the January 17,
1998 employment injury on March 15, 2002. By decision dated December 8, 2003, the Office
granted appellant schedule awards for 10 percent impairment of each of his upper extremities
and 1 percent impairment of his left lower extremity. By decision dated April 8, 2005, it granted
appellant a schedule award for an additional two percent impairment of his left lower extremity.
The Office relied on reports from Dr. Ian B. Fries, a Board-certified orthopedic surgeon,
selected to serve as the impartial medical adviser to reach appellant’s impairment ratings. In a
March 23, 2006 report, Dr. Fries stated that there was no specific table in the American Medical
Association, Guides to the Evaluation of Permanent Impairment that provided a rating for ankle
synovitis. He found one percent impairment of the whole person due to this condition. The
district medical adviser noted that appellant had three percent impairment of the left lower
extremity due to pain based on Chapter 18 of the A.M.A., Guides. By decision dated April 12,
2006, the Office granted appellant additional schedule awards of one percent for his upper
extremities. The Board reviewed appellant’s claim on July 11, 20071 and found that the case was
not in posture for a decision on the percentage of his permanent impairment as Dr. Fries’ reports
were not sufficiently detailed or rationalized to constitute the weight of the medical opinion
evidence. The Board remanded the case for the Office to refer appellant, a statement of accepted
facts and a list of specific questions to an appropriate Board-certified physician to resolve the
conflict of medical opinion evidence. The facts and the circumstances of the case as set out in
the Board’s prior decision are adopted herein by reference.
The Office referred appellant, a statement of accepted facts and a list of questions to
Dr. Robert Dennis, a Board-certified orthopedic surgeon, on January 2, 2008. In a report dated
January 15, 2008, Dr. Dennis described appellant’s history of injury and medical treatment. He
provided a detailed analysis of the statement of accepted facts and the medical records and
treatment. Dr. Dennis noted appellant’s concerns of constant left ankle weakness and giving way
as well as swelling and pain in the left calf. Appellant also reported low back pain on the left
with radiation into the left buttock. Dr. Dennis performed a physical examination and listed his
findings. He examined appellant’s lumbar spine and found normal range of motion with no
evidence of radiculopathy, sciatica or spasm. Dr. Dennis concluded that appellant had no
impairment of the lumbar spine. As to appellant’s right lower extremity, he found normal
strength, motion and neurological examination with no evidence of radiculopathy. Dr. Dennis
examined appellant’s left ankle and found normal gait and ability to support appellant’s weight
with a loss of range of motion consisting of 20 degrees of dorsiflexion and 40 degrees of plantar
flexion. He measured appellant’s calves and thighs, and found no evidence of weakness or
muscle loss. Dr. Dennis stated, “There is absolutely no other positive finding.” He examined
appellant’s upper extremities and concluded that appellant had 24 percent impairment to each of

1

Docket No. 07-699 (issued July 11, 2007).

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his arms.2 Dr. Dennis found no impairment of appellant’s lower extremities due to radiculopathy
or functional impairment of the left ankle.
The district medical adviser reviewed Dr. Dennis’ report on February 7, 2008 and agreed
with his assessment awarding appellant 24 percent for each upper extremity and no impairment
for the left ankle. He stated that the left ankle exhibited dorsiflexion of 20 degrees and plantar
flexion of 40 degrees, which were not ratable impairments.3
By decision dated March 20, 2008, the Office granted appellant a schedule award for an
additional 13 percent impairment of each upper extremity. Appellant, through his attorney,
requested an oral hearing on March 25, 2008. Counsel appeared at the oral hearing on July 16,
2008 and withdrew appellant’s objection to the schedule awards for his upper extremities but
challenged the existing three percent impairment rating for the left lower extremity. He
contended that Dr. Dennis did not adequately evaluate appellant’s motor strength or sensory
deficits. Counsel requested additional medical evaluation regarding appellant’s left lower
extremity.
By decision dated October 29, 2008, the hearing representative found that Dr. Dennis
performed a thorough evaluation of appellant’s left lower extremity and found no objective
evidence to support an impairment. She affirmed the Office’s March 20, 2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.7

2

On appeal, appellant’s attorney specifically stated that appellant did not contest the impairment ratings of his
upper extremities and the Board will not address this issue on appeal.
3

A.M.A., Guides 537, Table 17-11.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 – Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).

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It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.8
ANALYSIS
The Board remanded the case for the Office to refer appellant to a second impartial
medical examiner to resolve the conflict of medical opinion regarding the extent of appellant’s
permanent impairment for schedule award purposes. The Office properly referred appellant, a
statement of accepted facts and a list of questions, to Dr. Dennis on January 2, 2008. In a
January 15, 2008 report, Dr. Dennis provided a detailed analysis of the statement of accepted
facts as well as the medical records and treatment. He noted that appellant reported that he
experienced constant left ankle weakness and giving way as well as swelling and pain in the left
calf. Appellant also reported low back pain on the left with radiation into the left buttock.
Dr. Dennis performed a physical examination of appellant and provided the results. He
examined appellant’s lumbar spine and found normal range of motion with no evidence of
radiculopathy, sciatica or spasm. Dr. Dennis concluded that appellant had no impairments of the
lumbar spine. In regard to appellant’s right lower extremity, he found normal strength, motion
and neurological examination with no evidence of radiculopathy. Dr. Dennis examined
appellant’s left ankle and found normal gait and ability to support his weight with a loss of range
of motion of 20 degrees of dorsiflexion and 40 degrees of plantar flexion. He measured
appellant’s calves and thighs and found no evidence of weakness or muscle loss. Dr. Dennis
stated, “There is absolutely no other positive finding.” He found no impairment of appellant’s
lower extremities due to radiculopathy or functional impairment of the left ankle.
The Board finds that Dr. Dennis’ report is sufficiently detailed and well rationalized to
constitute the weight of the medical opinion evidence. Dr. Dennis provided comprehensive
findings on physical examination noting that, although, appellant reported constant left ankle
weakness and giving way as well as swelling, his gait was normal and the ability of his ankle to
support his weight was normal. He found no atrophy of the lower extremity. Appellant’s
attorney argued before the hearing representative and on appeal, that Dr. Dennis should have
utilized manual muscle testing. Manual muscle testing assesses an individual’s ability to move a
joint through a full range of motion against gravity or move it against additional resistance
applied by the examiner or to hold the joint position against resistance. Manual muscle testing is
subject to the individual’s conscious or unconscious control.9 To be valid, the results should
agree with other observable pathologic signs and medical evidence.10 Dr. Dennis specifically
noted that there were no other objective findings in regard to appellant’s lower extremity. The
Board notes that because Dr. Dennis found no other observable deficits suggesting that manual
muscle testing was appropriate, under the A.M.A., Guides he was not required to perform these
tests. The Board further notes that, without findings on examination to suggest a sensory or pain
deficit, Dr. Dennis was not required to provide an impairment rating for these conditions.
8

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

9

A.M.A., Guides 531, 17.2e.

10

Id.

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The district medical adviser reviewed Dr. Dennis’ report on February 7, 2008 and agreed
with his assessment awarding appellant 24 percent for each upper extremity and no impairment
for the left ankle. He stated that the left ankle exhibited dorsiflexion 20 degrees and plantar
flexion of 40 degrees, which were not ratable impairments.
CONCLUSION
The Board finds that the weight of the medical evidence as represented by the wellreasoned report of Dr. Dennis the impartial medical examiner establishes that appellant has no
more than three percent impairment of his left lower extremity for which he has received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, VICKERY STATION,
Dallas, TX, Employer
__________________________________________

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

Docket No. 21-1204
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 3, 2021 appellant filed a timely appeal from a March 29, 2021 merit decision
and a July 27, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment; and (2) whether

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 27, 2021 decision, appellant submitted additional evidence to the Board.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 28, 2021 appellant, then a 69-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bilateral wrist pain due to factors of his federal
employment. He noted that an attached statement explained how his employment factors caused
his condition, however, no such statement was contained in the record. Appellant noted that he
first became aware of his claimed injury on December 16, 2021 and realized its relation to his
federal employment on January 26, 2021.3 On the reverse side of the claim form, his supervisor,
M.J., indicated that appellant’s work was modified so that he did not have to lift items over 10
pounds and that he was attending physical therapy daily. The employing establishment challenged
appellant’s claim because appellant did not submit any factual or medical documentation.
In a development letter dated February 5, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities. It
afforded both parties 30 days to respond.
A January 26, 2021 report from Dr. Juan Zamora, a Board-certified physician specializing
in family medicine, related appellant’s history of injury. Appellant awoke on December 16, 2020
with sharp pain in his left wrist and continued to experience frequent pain and discomfort
extending into his middle fingers. A similar pattern of pain started in his right wrist on
December 30, 2020. Appellant also began to experience right elbow pain on January 4, 2021.
Pain in each of these areas increased with activity. Dr. Zamora opined that appellant’s condition
was work related and recommended diagnostic testing. He diagnosed unspecified sprains of the
right elbow and both wrists.
On February 9, 2021 appellant responded to OWCP’s development questionnaire, noting
that he worked limited duty and retired from the employing establishment on February 1, 2021.
He indicated that his responses to OWCP’s remaining questions were contained in an attached
statement, however, no such statement is found in the record.
Appellant underwent bilateral wrist x-rays and a magnetic resonance imaging (MRI) scan
on February 10, 2021. The x-ray of his left wrist revealed severe triscaphe and mild
trapeziometacarpal osteoarthritis and a one millimeter ulnar positive variance indicating possible
ulnar impaction syndrome or triangular fibrocartilage complex (TFCC) tears. The x-ray of
appellant’s right wrist revealed severe triscaphe and mild radiocarpal and trapeziometacarpal
osteoarthritis. The MRI scan of his left wrist demonstrated tricompartmental wrist effusions,
chondromalacia within the lunate and distal ulna, which could relate to ulnar impaction syndrome
and/or osteoarthritis, severe triscaphe and mild-to-moderate trapeziometacarpal osteoarthritis,
3

A January 20, 2021 notice of separation indicated that appellant retired from the employing establishment on
January 31, 2021.

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increased signal within the TFCC compatible with either a TFCC tear or TFCC degeneration, and
mild generalized extensor tenosynovitis. The MRI scan of appellant’s right wrist demonstrated
mild generalized extensor tenosynovitis with grade 1 strain of the extensor carpi ulnaris tendon,
tricompartmental wrist effusions, severe triscaphe and mild trapeziometacarpal osteoarthritis, and
increased signal within the TFCC indicative of either a TFCC tear or TFCC degeneration .
In a February 23, 2021 report, Dr. Zamora reviewed the February 10, 2021 x-ray and MRI
scans and diagnosed chondromalacia, osteoarthritis, and TFCC degeneration, possibly with tears.
He opined that appellant’s conditions were due to the natural wear and tear of the body but were
aggravated by his 42 years of work for the employing establishment. Dr. Zamora advised appellant
to begin a regimen of physical rehabilitation.
By decision dated March 29, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted factors of his federal employment.
Appellant subsequently submitted an undated statement responding to OWCP’s initial
development questionnaire. He described his employment activities, including daily sorting and
delivering of mail and parcels weighing up to 70 pounds and carrying up to 35 pounds of letters,
flats, and small parcels in a satchel carried on left shoulder such that weight was almost entirely
on his left shoulder and arm. Appellant noted that he had been under lifting restrictions at work
since July 2020 due to a left arm injury. He compensated for his left arm injury by doing more
work with his right arm. Appellant’s left wrist and hand pain began during the night on
December 16, 2020, and he reported it to his station manager, D.D, the next day. Similar pain
began in his right wrist on December 30, 2020 and in his right arm and elbow on January 4, 2021.
Appellant experienced greater pain and discomfort during periods of activity. He reported this
history to his manager, M.J., on January 13 and 15, 2020. Appellant’s activities outside of work
consisted mainly of listening to music and watching movies. He believed that his symptoms were
indicative of repetitive motion injuries due to the nature of his work for the employing
establishment.
OWCP received February 23, 2021 report from Dr. Zamora in which he again reviewed
the February 10, 2021 x-rays and MRI scans and diagnosed chondromalacia, osteoarthritis, and
TFCC degeneration, possibly with tears. Dr. Zamora opined that appellant’s conditions were due
to the natural wear and tear of the body but were aggravated by his 42 years of work at the
employing establishment. Specifically, he explained that appellant’s work duties, including
carrying and handling heavy loads, sorting and casing mail, repetitively twisting at the wrist to
open mailboxes, and repetitively locking and unlocking his work vehicle throughout the day,
aggravated his conditions. Dr. Zamora advised that appellant begin a regimen of physical
rehabilitation.
On April 28, 2021 appellant requested reconsideration. In support of his request, he
submitted an April 27, 2021 statement, in which he contended that his more than 42 years of
service to the employing establishment, including a great deal of overtime, directly contributed to
his diagnosed conditions. Appellant noted that, as a result of a previously accepted left arm injury,
assigned OWCP File No. xxxxxx014, he had been restricted to eight hours of work per day during
the latter half of 2020. Finally, he argued that the medical documentation proved causal

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relationship between his diagnosed medical conditions and the accepted factors of his federal
employment.
By decision dated July 27, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 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, 5 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. 6 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. 7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 8
Causal relationship is a medical question that requires rationalized medical opin ion
evidence to resolve the issue. 9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

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).
8

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).
9

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

10

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

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rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
In his January 26, 2021 report, Dr. Zamora diagnosed unspecified sprains of the right
elbow and both wrists and opined that appellant’s condition was work related. Similarly, in a
February 23, 2021 report, he diagnosed chondromalacia, osteoarthritis, and TFCC degeneration,
possibly with tears, and opined that appellant’s conditions were due to the natural wear and tear of
the body, but were aggravated by appellant’s 42 years of work for the employing establishment.
While he provided an affirmative opinion suggestive of causal relationship, Dr. Zamora did not
offer medical rationale sufficient to explain why he believes appellant’s employment duties could
have resulted in or contributed to his diagnosed conditions. Without identifying specific
employment duties or explaining how they caused or aggravated app ellant’s conditions,
Dr. Zamora’s letter is of limited probative value and is insufficient to meet appellant’s burden of
proof.12
In a separate February 23, 2021 report, Dr. Zamora repeated the above diagnoses and again
opined that appellant’s conditions were due to the natural wear and tear of the body , but were
aggravated by appellant’s 42 years of work for the employing establishment. Specifically, he
explained that appellant’s work duties, including carrying and handling heavy loads, sortin g and
casing mail, repetitively twisting at the wrist to open mailboxes, and repetitively locking and
unlocking his work vehicle throughout the day, aggravated his conditions. However, Dr. Zamora
did not explain how any of these described employment activities caused appellant’s diagnosed
chondromalacia, osteoarthritis, and TFCC degeneration. To be of probative medical value, a
medical opinion must explain how, physiologically, the movements involved in the employment
activities caused or contributed to the diagnosed conditions. 13 As such, Dr. Zamora’s report is
insufficient to establish appellant’s claim.
The remaining medical evidence consisted of bilateral x-ray and MRI scans of appellant’s
wrists. The Board has held, however, that diagnostic testing reports, standing alone, lack probative
value on the issue of causal relationship as they do not address the relationship between the
accepted employment factors and a diagnosed condition. 14 For this reason, this evidence is also
insufficient to meet appellant’s burden of proof.

11

Id.; Victor J. Woodhams, supra note 8.

12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

A.W., Docket No. 19-0327 (issued July 19, 2019); M.D., Docket No. 18-0195 (issued September 13, 2018);
Jimmie H. Duckett, 52 ECAB 332 (2001).
14

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

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As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof. 15
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 16
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought. 18 If it chooses to grant reconsideration, it reopens and
reviews the case on its merits. 19 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 20

15

See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
16

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
17

20 C.F.R. § 10.606(b)(3); see L.D., id; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
18

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
19

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

20

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

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ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant has not advanced a relevant legal argument not
previously considered. Consequently, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
Appellant also did not submit relevant and pertinent new evidence in support of his
reconsideration request. The underlying issue on reconsideration is whether appellant has met his
burden of proof to establish a medical condition causally related to the accepted factors of his
federal employment. This is a medical issue which is addressed by relevant medical evidence not
previously considered. 22
With his request for reconsideration, appellant submitted an undated response to OWCP’s
initial development questionnaire, a February 23, 2021 medical report from Dr. Zamora, and an
April 27, 2021 statement contending that his conditions were causally related to the accepted
factors of his federal employment. The undated questionnaire response and the April 27, 2021
statement do not constitute relevant and pertinent new evidence as they are not medical evidence.
Further, Dr. Zamora’s separate February 23, 2021 medical report substantially replicates a
previously considered report of even date. The only addition in the later-submitted report was a
list of employment activities that he believed aggravated appellant’s medical conditions.
Dr. Zamora’s did not, however, offer an explanation of the causal relationship between those
activities and the diagnosed conditions. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case. 23
As such, appellant is not entitled to further review of the merits of his claim based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).24
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 25
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment. The Board further
21

C.B., Docket No. 18-1108 (issued January 22, 2019).

22

Y.L., Docket No. 20-1025 (issued November 25, 2020).

23

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper; 31 ECAB 224, 225 (1979).
24

Supra note 16.

25

J.B., supra note 20; D.G., Docket No. 19-1348 (issued December 2, 2019).

7

finds that OWCP properly denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 29 and July 27, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed. 26
Issued: March 11, 2022
Washington, DC

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

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

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

26

Upon return of the case record, OWCP may consider administratively combining the current claim file with
OWCP File No. xxxxxx014.

8


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

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Appearances:
Howard Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1949
Issued: April 11, 2016

Case Submitted on the Record

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

JURISDICTION
On September 28, 2015 appellant, through counsel, filed a timely appeal from a
September 4, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated compensation for wage-loss and
medical benefits, effective March 8, 2015.
FACTUAL HISTORY
On November 22, 2004 appellant, then a 42-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained depression and anxiety as a result of her federal
employment. On the claim form she alleged that harassment from a coworker had contributed to
1

5 U.S.C. § 8101 et seq.

her condition. Appellant submitted a statement describing an October 28, 2004 incident
involving the coworker yelling at her. The medical evidence included a December 22, 2004
report from Dr. Stephen Langer, a psychologist, who diagnosed post-traumatic stress disorder,
mild, with depressive and anxious features.
OWCP accepted the claim on August 12, 2005 for major depressive disorder, single
episode, and anxiety. Appellant received wage-loss compensation from January 10, 2005 and
was placed on the periodic compensation rolls as of July 9, 2006.
In a statement of accepted facts (SOAF) dated October 27, 2005, OWCP indicated that
the accepted compensable work factor was an October 24, 2004 employment incident where a
coworker shouted at appellant in front of others. Appellant was referred for a second opinion
examination by Dr. Linda Miller, an osteopath specializing in psychiatry. In a report dated
July 17, 2006, Dr. Miller opined that the accepted conditions had resolved. By report dated
August 24, 2006, she indicated that she had reviewed an August 7, 2006 Minnesota Multiphasic
Personality Inventory (MMPI) and it did not alter her opinions. Dr. Miller again opined in an
October 20, 2006 report that the employment-related conditions had resolved and appellant’s
current stress was related to Equal Employment Opportunity (EEO) claims she was pursuing.
Dr. Langer indicated in a December 14, 2006 report that he disagreed with Dr. Miller’s
conclusions. According to Dr. Langer, appellant remained disabled due to an employmentrelated emotional condition.
OWCP found that a conflict in the medical evidence existed and, pursuant to 5 U.S.C.
§ 8123(a), selected Dr. John Hamm, a Board-certified psychiatrist, to resolve the conflict. In a
report dated April 5, 2007, Dr. Hamm opined that appellant had a slow development of
depression, anxiety, and paranoia that most likely preceded her interaction with the coworker.
He further opined that appellant’s current pathology was not related to an October 28, 2004
incident, as this was the type of incident that would cause transient emotional distress, but not a
psychiatric illness. Dr. Hamm found that appellant was disabled from work and nonwork-related
stressors needed to be addressed in her treatment.
By letter dated September 18, 2007, OWCP advised appellant it proposed to terminate
compensation based on the report from Dr. Hamm. By decision dated October 31, 2007, it
terminated compensation for wage-loss and medical benefits.
Appellant requested a hearing, which was held on March 26, 2008. By decision dated
July 8, 2008, the hearing representative reversed the October 31, 2007 termination decision. He
found the factual evidence had established “mistreatment” by the coworker based on repeated
criticisms of appellant and demeaning behavior prior to the October 28, 2004 incident, and this
was a compensable work factor. According to the hearing representative, other allegations
relating to administrative matters such as performance awards and EEO proceedings were not
compensable. Since the SOAF provided to Dr. Hamm and Dr. Miller did not include a complete
discussion of accepted compensable work factors, the hearing representative found the medical
evidence was insufficient to support a termination of benefits.

2

On August 25, 2009 OWCP prepared a new SOAF, identifying four compensable work
factors: (1) the October 28, 2004 incident, (2) the coworker did not put mail in its proper place
and left it for appellant, (3) the coworker pressured appellant to work faster and criticized her in
front of other employees, and (4) the coworker spoke to appellant in a loud threatening manner.
Appellant was referred to Dr. Larry Bornstein, a Board-certified psychiatrist, for a second
opinion evaluation. In a report dated September 11, 2009, Dr. Bornstein opined that the
“accepted condition of major depression continues” and appellant was disabled for work.
The record contains a March 29, 2011 report of investigation by the employing
establishment’s Office of Inspector General (OIG). The cover letter reports that appellant may
have misrepresented her physical and mental capabilities to medical providers.
On July 26, 2011 OWCP again prepared a SOAF with the four compensable work factors
identified in the August 25, 2009 SOAF. Appellant was referred to Dr. Richard Schneider, a
Board-certified psychiatrist, for a second opinion evaluation. In a report dated August 23, 2011,
Dr. Schneider opined that appellant did not have PTSD as she did not meet the requirement for
such a diagnosis. He indicated that he concurred with Dr. Hamm that appellant’s current
pathology was not related to work incidents, particularly an October 28, 2004 incident.
Dr. Schneider further opined that the accepted conditions “are fixed and stable, but not resolved.
They are chronic and preexisting.” In a report dated September 8, 2011, Dr. Schneider indicated
that he had reviewed a surveillance video from the fall of 2010, with appellant running in
marathons, shopping, and chatting with friends. He opined that his diagnosis would now be
malingering, and appellant was able to return to work.
By letter dated January 26, 2012, OWCP advised appellant it proposed to terminate
compensation for wage-loss and medical benefits. Appellant, through counsel, submitted a
February 17, 2012 letter objecting to the proposed termination. Counsel argued that relevant
materials had not been provided to appellant, including the surveillance video.2 In a report dated
March 13, 2012, Dr. Langer opined that he disagreed with Dr. Schneider. He opined that
appellant continued to have residuals of the employment-related conditions and was disabled
from work.
OWCP again determined that a conflict in the medical evidence existed, and selected
Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the conflict. In a report dated
September 26, 2012, Dr. Robinson diagnosed panic disorder with agoraphobia, and depressive
disorder. He noted the results of an MMPI and found that the surveillance video, while not
prima facie evidence of malingering, was inconsistent with appellant’s claimed degree of fear in

2

By letter dated February 1, 2012, appellant’s counsel requested a copy of the case record, including a copy of
the surveillance video. OWCP sent appellant’s counsel a copy of the surveillance video on February 27, 2012. As
the Board noted in F.S., Docket No. 11-863 (issued September 26, 2012) and in P.S., Docket No. 13-1018 (issued
June 19, 2014) the investigative practices of an employing establishment’s inspection service, including obtaining
surveillance videos, are not within the jurisdiction of the Board. However, the Board has noted that although video
footage may be of some value to a physician asked to render a medical opinion, it may also be misleading if material
facts are omitted. Thus, OWCP is obliged to notify the claimant when such footage is given to a physician and,
upon request, provide a copy of the recording and a reasonable opportunity to respond to its accuracy. A.P., Docket
No. 13-30 (issued March 18, 2013).

3

public locations. Dr. Robinson opined that appellant did not suffer from any psychological
effects from the four accepted work factors.
By letter dated November 14, 2012, OWCP advised appellant that it proposed to
terminate compensation for wage-loss and medical benefits. Appellant submitted a report from
Dr. Langer dated December 28, 2012.
Dr. Langer reported that he disagreed with
Dr. Robinson’s conclusions. He agreed that appellant did not have PTSD, but opined that
appellant remained disabled due to an employment-related emotional condition.
OWCP prepared a SOAF dated April 22, 2013, again listing four accepted employment
factors. Dr. Robinson was requested to submit an additional report. In a report dated May 19,
2013, he opined that, if depressive symptoms were still present, they were not related to the
accepted employment factors.
On June 28, 2013 OWCP found that the April 22, 2013 SOAF contained omissions and
errors and would be corrected. It indicated that it was setting aside the proposed termination. A
proposed June 28, 2013 SOAF again listed the four factors as compensable, with the addition of
October 28, 2004 as the date the coworker spoke to appellant in a loud, threatening manner. The
SOAF now included a description of the clerk position, and deleted references to medical
appointments and observations from the 2010 surveillance video. On August 12, 2013 OWCP
finalized the proposed changes to the SOAF.
Appellant, through counsel, filed an appeal with the Board of the August 12, 2013
OWCP findings. By order dated March 21, 2014, the Board dismissed the appeal.3 The Board
found it did not have jurisdiction over an adverse OWCP final decision.
OWCP referred appellant for a second opinion examination by Dr. Russell Vandenbelt, a
Board-certified psychiatrist. In a report dated June 25, 2014, Dr. Vandenbelt reviewed medical
records and provided results on examination. He opined that the type of interaction described in
the SOAF might lead to a temporary increase in anxiety or depressive symptoms, but this would
abate within a few months. Dr. Vandenbelt opined that it was unreasonable to conclude that
appellant had any current condition causally related to a remote set of circumstances in the
workplace.
By letter dated July 30, 2014, OWCP advised appellant that it proposed to terminate
compensation for wage-loss and medical benefits. Appellant submitted a November 25, 2013
report from Dr. Langer, who diagnosed PTSD with depressive and anxious features. He reported
appellant’s condition was improving slightly, but he did not expect a full or partial recovery.
According to Dr. Langer, appellant could have returned to work in 2006 if she did not work
under the same supervisors who tolerated the harassment from the coworker.
In a report dated October 3, 2014, Dr. Langer reported that appellant continued to show
significant symptoms of major depressive disorder, and he found no evidence her condition had
resolved. He opined that he disagreed with Dr. Vandenbelt’s conclusions. Dr. Langer asserted
that appellant did qualify for a PTSD diagnosis. He wrote that he was unable to secure a change
3

Docket No. 13-1936 (issued December 19, 2013).

4

in her employment, and “[a]t that point, her disability became more entrenched, to the point that
she deteriorated significantly, although she is now doing somewhat better. [Appellant’s] chronic
depression and anxiety as well as her suspiciousness are directly caused by the events leading to
the OWCP claim.”
OWCP again found a conflict in the medical evidence existed and selected Dr. Gary
Hudak, a Board-certified psychiatrist, as an impartial examiner to resolve the conflict. By letter
dated December 11, 2014, appellant, through counsel, objected to the selection. Appellant
asserted that Dr. Hudak was a “contract” physician for the Department of the Army.
In a report dated January 7, 2015, Dr. Hudak indicated that he examined appellant on
December 23, 2014. He provided results on examination, reviewed medical records, a
September 17, 2009 MMPI-2, the 2010 surveillance video, and the SOAF. Dr. Hudak reported
that, while appellant had subjective symptoms, “the only objective evidence in the claim file is
the elevated F and F(b) scales of the aforementioned MMPI-2 which denote grossly exaggerated
symptoms as well as the telling surveillance video which denote no objective evidence to support
the claimant’s subjective psychological complaints.” He opined that there were no residuals of
the accepted conditions related to the work environment. Dr. Hudak found that appellant did not
have a work-related mental health disorder and could return to work.
By letter dated January 21, 2015, OWCP requested that Dr. Hudak review additional
reports from Dr. Langer.4 By report dated February 6, 2015, Dr. Hudak indicated that his
opinion remained the same.
On February 12, 2015 OWCP prepared a new SOAF that indicated an additional accepted
compensable factor was established: the coworker engaged in demeaning and threatening
behavior toward appellant prior to October 28, 2004. In a report dated March 4, 2015,
Dr. Hudak indicated that he had reviewed the February 12, 2015 SOAF. He indicated that his
opinion remained the same.
By decision dated March 5, 2015, OWCP terminated compensation for wage-loss and
medical benefits effective March 8, 2015. It found Dr. Hudak represented the weight of the
medical evidence.
Appellant, through counsel, timely requested a review of the written record by an OWCP
hearing representative on April 6, 2015. By decision dated September 4, 2015, the hearing
representative affirmed the termination of benefits. She found there was no conflict in the
medical evidence, as Dr. Vandenbelt did not have an accurate SOAF. In addition, the hearing
representative found that Dr. Hudak still represented the weight of the medical evidence, as he
provided a rationalized medical opinion that outweighed the unrationalized opinion of
Dr. Langer.

4

The January 7, 2015 report from Dr. Hudak reviewed numerous reports from Dr. Langer. The reports referred
to in the January 21, 2015 letter appear to be handwritten treatment notes.

5

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, OWCP may not terminate compensation without establishing
that the disability had ceased or that it was no longer related to the employment.5
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value, and its convincing quality. The factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested, and the medical rationale expressed is support of the physician’s
opinion.6 Medical rationale is a medically sound explanation for the opinion offered.7
ANALYSIS
In the present case, OWCP accepted that appellant sustained major depressive disorder,
single episode, and anxiety, as a result of compensable work factors occurring on or before
October 28, 2004. The issue is whether the medical evidence is sufficient to meet OWCP’s
burden of proof to terminate compensation for wage-loss and medical benefits effective
March 8, 2015.
The Board notes that the hearing representative correctly found there was no conflict
under 5 U.S.C. § 8123(a) with respect to the June 25, 2014 report of Dr. Vandenbelt, a second
opinion physician, and the reports from Dr. Langer, the attending physician.8 Dr. Vandenbelt did
not have a complete and accurate SOAF as a background for his opinion. OWCP modified the
SOAF on February 12, 2015 and included an additional compensable work factor. A SOAF
must provide a complete background with accepted factors and conditions.9 When a medical
report is based on an incomplete or inaccurate SOAF, it is of diminished probative value.10
Therefore his report is of diminished probative value and is insufficient to create a conflict.
Even though Dr. Hudak was not an impartial medical examiner under 5 U.S.C. § 8123(a), his
report may still constitute the weight of the medical evidence as a second opinion physician.11

5

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

6

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

7

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB
641 (1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
8

Under 5 U.S.C. § 8123 (a), if there is a disagreement between an OWCP physician and an attending physician, a
third physician shall be selected to make an examination.
9

See Barbara A. Palmer, Docket No. 06-0591 (issued July 6, 2006).

10

L.J., Docket No. 14-1682 (issued December 11, 2015); V.H., Docket No. 14-0433 (issued July 3, 2014).

11

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

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The Board affirms the finding of OWCP that Dr. Hudak represents the weight of the
medical evidence in this case. Dr. Hudak provided a detailed medical report reviewing the
numerous medical reports and evidence of record. He unequivocally opined that appellant did
not have continuing residuals of an employment-related condition. Dr. Hudak noted that the
only objective evidence consisted of a 2009 MMPI-2, which indicated that appellant was
exaggerating her symptoms. Dr. Hudak provided a rationalized medical opinion that appellant
did not have a continuing employment-related emotional condition. His opinion was based on an
accurate background, as he reviewed the February 12, 2015 SOAF and thereafter reiterated his
opinion.
The Board finds his opinion is of diminished probative value. Dr. Langer, for example,
continued to refer to a diagnosis of PTSD. The physicians of record consistently found that
appellant did not have PTSD, and this was not an accepted condition. Moreover, Dr. Langer
does not explain why he opined that appellant continues to have a condition causally related to
incidents that occurred in 2004 and earlier. He acknowledged that she could have returned to
work in 2006 if she had different supervisors. It is well established that a fear of a future injury
or reaction after a return to work is not compensable.12
On appeal, appellant’s counsel argues that Dr. Hudak’s opinion was not well rationalized,
as he relied on stale evidence such as videotape more than four years old and an MMPI 2 that
was six years old. As discussed above, Dr. Hudak had a complete background and provided a
rationalized medical opinion. Counsel again argues that the SOAF was insufficient, asserting
that it did not describe the severity of appellant’s harassment. The record contains the significant
history of the development of the SOAF. The February 12, 2015 SOAF discussed the accepted
compensable work factors and provided a detailed and accurate factual background. Counsel
also argues that the September 4, 2015 hearing representative decision imposed a burden on
appellant to provide evidence of disability. The decision properly placed the burden of proof on
OWCP to terminate compensation and found OWCP had met its burden of proof. Counsel
argues that Dr. Hudak relied on medical reports that were found to be of diminished probative
value and was not told to ignore such evidence. Dr. Hudak was provided a complete medical
background and he provided an opinion based on his own examination. There was no reason to
exclude any medical report from the record.13
Counsel further argues that OWCP used leading questions, citing as an example a request
that the physician explain, if there were residuals of the accepted conditions, how appellant had
residuals with no exposure to the work environment since 2005. A rationalized medical opinion
would have to provide such an explanation to be of probative value. The Board finds the
questions provided do not constitute improper leading questions. Appellant’s counsel also
argues that Dr. Hudak was not properly selected as an impartial medical examiner. As discussed
12

See W.R., Docket No. 11-1024 (issued October 18, 2011); L.W., Docket No. 08-1034 (issued
February 13, 2009).
13

See Terrance R. Stath, 45 ECAB 412 (1994) (reports excluded because OWCP might have influenced the
opinion of the physician, such as through improper contact, are distinguished from reports that are of diminished
probative values for other procedural reasons). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810.12 (September 2010).

7

above, Dr. Hudak was properly considered a second opinion physician, and was not a referee
physician under 5 U.S.C. § 8123(a).
The Board finds that the medical evidence of record was sufficient to meet OWCP’s
burden of proof in this case. Dr. Hudak provided a well-rationalized opinion that represents the
weight of the medical evidence.
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 OWCP properly terminated compensation for wage-loss and
medical benefits effective March 8, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 4, 2015 is affirmed.
Issued: April 11, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTHERN ARIZONA HEALTHCARE
SYSTEM, Prescott, AZ, Employer
__________________________________________

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

Docket No. 18-0660
Issued: October 3, 2018

Case Submitted on the Record

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

JURISDICTION
On February 5, 2018 appellant filed a timely appeal from a November 14, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish upper respiratory,
nasal, and vocal cord conditions causally related to the accepted factor of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence on appeal. The Board’s jurisdiction is limited to the
evidence that was before OWCP at the time it issued its final decision. Thus, the Board is precluded from reviewing
this additional evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
On September 21, 2017 appellant, then a 78-year-old emergency medical services work
leader, filed an occupational disease claim (Form CA-2) alleging that he developed upper
respiratory and mucous membrane conditions and experienced larynx and bronchial burning, loss
of voice, puffiness, and dryness as a result of counting microfiber mops that were used to clean
and disinfect all areas of the hospital in which he worked. He alleged that he first became aware
of his claimed conditions and of their relationship to his federal employment on June 19, 2017.
OWCP, by development letter dated September 29, 2017, advised appellant of the
deficiencies in his claim and requested that he submit additional factual and medical evidence,
including a detailed narrative report from his physician containing a history of the injury and a
medical explanation with objective evidence of how the reported work exposure caused,
contributed to, or aggravated his condition. It afforded appellant 30 days to submit the necessary
evidence.
In a September 19, 2017 chest x-ray report, Dr. Brian D. Kimball, a Board-certified
radiologist, provided an impression of no acute findings and hyperinflation of the lungs.
In a partial neck computerized tomography (CT) scan report dated September 25, 2017,
Dr. Marc R. Kramer, an employing establishment physician Board-certified in radiology, noted a
history that appellant was a smoker with laryngitis. He provided the impression of mild-tomoderate mucosal thickening with gas fluid level and mucous stranding seen in the right maxillary
sinus which suggested acute on chronic right maxillary sinus disease. Dr. Kramer also provided
an impression of mild mucosal thickening seen in the left maxillary sinus, visualized mastoid air
cells that appeared to be clear, vertebral arteries that were symmetric in size, and bilateral carotid
calcifications.
Dr. Derek Hewitt, a Board-certified otolaryngologist, noted in a September 26, 2017
medical report, a history that appellant started to lose his voice about two months ago following
his exposure to chemicals at the employing establishment. Appellant related to Dr. Hewitt that he
lost his voice at the same time he dealt with a large amount of mop heads that were cleaned with
certain chemicals. He related his other complaints which included neck pain, fatigue, shortness of
breath, and a raw and tight throat. Dr. Hewitt noted a history of appellant’s medical treatment,
which included a chest x-ray that showed hyperinflation of the lungs. He reviewed the results of
a neck CT scan performed at the employing establishment, which revealed thickening and air-fluid
level in the right maxillary sinus and no other abnormal ﬁndings. Dr. Hewitt also reviewed a
partial report that he believed was associated with the CT scan report. He related that the report
revealed irregularity along the tongue base and glottis and recommended visualization. Dr. Hewitt
described findings on physical examination and performed a diagnostic laryngoscopy, flexible
fiberoptic. He believed that appellant had developed some muscle tension dysphonia. Dr. Hewitt
related that he had a great view of his upper aerodigestive tract which revealed no particular
abnormal findings, nothing to suggest thrush. He found no evidence of sinusitis, noting that, in
other words, there was no particular drainage down the throat. Dr. Hewitt advised that there was
a “remote possibility” of chemical exposure contributing to or triggering this condition, but it was
difficult for him to say. He recommended that appellant finish the Augmentin and Prednisone he

2

was presumably taking for sinusitis. Dr. Hewitt related that he would recommend voice therapy
if appellant continued with dysphonia.
In an after-visit summary report dated September 25, 2017, Dr. David A. Bryman, an
employing establishment physician and family practitioner, examined appellant, diagnosed acute
sinusitis, unspecified, and addressed his treatment plan.
By decision dated November 14, 2017, OWCP denied appellant’s occupational disease
claim. It found that the medical evidence of record was insufficient to establish that the diagnosed
conditions were causally related to the accepted exposure to microfiber mops used to clean and
disinfect areas of the hospital.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To 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.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.7 The opinion of the physician must be based on a complete
3

Supra note 1.

4

T.H., Docket No. 17-747 (issued May 14, 2018); C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine
Pendleton, 40 ECAB 1143 (1989).
5

T.H., id.; S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB
153 (1989).
6

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

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

3

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
The Board finds that the medical evidence of record is insufficient to establish that
appellant sustained upper respiratory, nasal, and vocal cord conditions caused or aggravated by the
accepted factor of his federal employment.
Dr. Hewitt’s September 26, 2017 report related a history that appellant started to lose his
voice about two months ago after he was exposed at work to a large amount of mop heads that
were cleaned with certain chemicals. He reviewed diagnostic test results and examined appellant.
Dr. Hewitt indicated that appellant had some muscle tension dysphonia and that there was a
“remote possibility” that chemical exposure contributed to or triggered the condition although it
was difficult for him to say for sure. The Board finds that this report is of diminished probative
value on the relationship between the observed condition and the accepted employment factor,
because Dr. Hewitt’s opinion on causal relationship, which merely notes a “remote possibility” of
causal relationship, is speculative and equivocal in nature.9
The September 19 and 25, 2017 diagnostic test results of Dr. Kimball and Dr. Kramer,
respectively, and the September 25, 2017 after summary visit report of Dr. Bryman addressed
appellant’s chest, neck, and nasal conditions, but failed to provide an opinion explaining causal
relationship between the diagnosed conditions and the accepted employment factor. 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.10
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish upper respiratory, nasal, and vocal cord conditions are causally related to the
accepted employment factor. As such, appellant has not met his burden of proof.
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.11 Appellant’s honest belief that his exposure to mops
and the cleaning chemicals in the performance of his federal employment caused his medical
conditions is not in question, but that belief, however sincerely held, does not constitute the
medical evidence to establish causal relationship.12

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5.

9
D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004) (medical opinions that are speculative or
equivocal in character are of diminished probative value).
10

See T.M., Docket No. 16-1456 (issued January 10, 2017); S.E., Docket No. 08-2214 (issued May 6, 2009); A.D.,
58 ECAB 149 (2006).
11

G.E., Docket No. 17-1719 (issued February 6, 2018); D.D., 57 ECAB 734 (2006).

12

G.E., id.; H.H., Docket No. 16-897 (issued September 21, 2016).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish upper
respiratory, nasal, and vocal cord conditions are causally related to the accepted factor of his
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HEART OF TEXAS HEALTH CARE
NETWORK, Arlington, TX, Employer
__________________________________________

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Appearances:
Edward L. Daniel, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0119
Issued: July 11, 2017

Case Submitted on the Record

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

JURISDICTION
On October 25, 2016 appellant, through her representative, filed a timely appeal from a
September 27, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
injury causally related to an August 27, 2014 employment incident.
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.

FACTUAL HISTORY
On September 17, 2014 appellant, then a 50-year-old management analyst, filed a
traumatic injury claim (Form CA-1), alleging that on August 27, 2014, when opening the car
door to exit a vehicle parked on an incline, she pulled the door with extra strength and
hyperextended her right shoulder. She was diagnosed with right rotator cuff tear. Appellant did
not stop work at that time. The employing establishment noted that she was in the performance
of duty when injured.
By letter dated September 25, 2014, OWCP advised appellant of the type of evidence
needed to establish her claim, particularly requesting that she submit a physician’s reasoned
opinion addressing the relationship of her claimed condition and specific employment factors. It
noted that medical evidence must be submitted by a qualified physician and nurses and physician
assistants are not considered qualified physicians under FECA.
In an October 22, 2014 statement, appellant indicated that while on a work-related
business trip she opened a van door and injured her right shoulder. She submitted a statement
from W.S., a coworker, dated October 20, 2014, who witnessed the injury to appellant’s shoulder
on August 27, 2014 while exiting a government vehicle. W.S. indicated that they were
performing logistics inspections at Kerrville Hospital and, while appellant exited the vehicle and
opened the sliding rear door of the van, she injured her right shoulder. Appellant submitted a
September 8, 2014 magnetic resonance imaging (MRI) scan of the right shoulder which revealed
a full-thickness tear in the anterior supraspinatus tendon and significant degenerative changes of
the acromioclavicular joint.
In a September 15, 2014 report, Dr. Charles T. Whittenburg, an osteopath, treated
appellant for right shoulder pain which began two weeks prior. Physical examination of the right
shoulder revealed intact neurovascular examination, intact sensory and motor examination, and
painful range of motion on abduction and external rotation with associated weakness.
Dr. Whittenburg noted an MRI scan of the right shoulder revealed a full-thickness tear. He
diagnosed complete rotator cuff rupture, shoulder bursa, tendon disorders, and rotator cuff
disorders. Dr. Whittenburg recommended surgical repair.
In an October 2, 2014 letter to Dr. Whittenburg, the employing establishment indicated
that appellant filed a workers’ compensation claim for a workplace injury which occurred on
August 27, 2014. Appellant reported that she hyperextended her right shoulder when she exited
a government van parked on an incline. She indicated that she used extra strength on the door
due to the vehicle being on a downward slope. The employing establishment requested
Dr. Whittenburg comment on whether the work factors of August 27, 2014 listed above were the
direct cause appellant’s current condition. If Dr. Whittenburg determined that they were not the
direct cause then did the August 27, 2014 incident aggravate, precipitate, or accelerate any
preexisting nonwork-related conditions.
On October 21, 2014 Dr. Whittenburg responded to the employing establishment’s
October 2, 2014 letter and opined that he was unable to state whether appellant’s injury was
directly caused by the work factors, but in his professional opinion her right shoulder injury
could have been caused by a series of events that occurred on August 27, 2014. He indicated

2

that he could not address any preexisting conditions since she had not been an established patient
until September 15, 2014.
In a decision dated October 31, 2014, OWCP denied appellant’s claim because the
evidence or record was insufficient to establish that the claimed medical condition was causally
related to the accepted work-related events.
On November 6, 2014 appellant requested an oral hearing which was held on
July 6, 2015.
Appellant submitted a November 11, 2014 report from Dr. Paul Chong, a Board-certified
orthopedist, who treated her for right shoulder pain. She had reported that, on August 27, 2014,
she forcefully pulled open a van door and her right arm was forced into external rotation.
Appellant was diagnosed with a right rotator cuff tear and underwent right shoulder arthroscopic
surgery on October 7, 2014. Dr. Chong noted physical examination of the right shoulder
revealed no obvious deformity or infection, pain on range of motion, intact sensation, and
positive impingement sign. He noted an x-ray of the right shoulder revealed a type two
acromion and acromioclavicular degenerative joint disease. Dr. Chong diagnosed right shoulder
pain, impingement, status post full rotator cuff tear repair, and possible strain. He opined that,
based on appellant’s history, she sustained an injury which led to her having significant
symptoms of pain and weakness in the right shoulder. Dr. Chong noted that MRI scan findings
revealed an acute full-thickness rotator cuff tear.
Appellant was treated by a nurse practitioner on March 2, 2015 for pain in her limb. She
reported traveling for work on August 27, 2014 and hyperextending her right shoulder.
Appellant noted that an MRI scan of the right shoulder revealed a full-thickness tear and she
underwent surgery. The nurse practitioner diagnosed pain in the limb and muscle pain.
On May 5, 2015 appellant was treated by Dr. Marvin Van Hal, a Board-certified
orthopedist, for bilateral shoulder pain. She had reported performing an onsite inspection at
work and upon exiting the vehicle she grabbed the release of the van door and extremely rotated
and elevated her arm. Appellant suffered right shoulder pain, underwent right shoulder surgery
on October 7, 2014, and continued to report residual symptoms of right and left shoulder pain.
Physical examination revealed limited range of motion of bilateral shoulders, positive Phalen’s
and Tinel’s sign of the right wrist, and intact motor strength in the upper extremity. Dr. Van Hal
noted an x-ray of the left shoulder revealed tendinosis of supraspinatus and spurring in the
acromioclavicular joint area. He diagnosed status post right shoulder surgery for rotator cuff tear
and probable left shoulder rotator cuff tear. Dr. Van Hal opined that within reasonable medical
probability the mechanism of injury of pulling upward and externally rotating her arm could
exacerbate and aggravate an underlying degenerative shoulder condition. He indicated that the
work incident described would be a “probable source” of the right shoulder rotator cuff injury
documented by Dr. Whittenburg. In a report dated June 23, 2015, Dr. Van Hal explained that
when he indicated that appellant’s work incident was a “probable source” of her right shoulder
rotator cuff injury, he was unable to confirm this unequivocally, however, within a reasonable
medical probability the right shoulder rotator cuff injury did appear to be causally related to the
work incident based on his education, training, and experience in dealing with shoulder issues.

3

In a decision dated September 9, 2015, an OWCP hearing representative affirmed the
October 31, 2014 decision.
On August 18, 2016 appellant requested reconsideration. She submitted an October 17,
2007 report from Dr. Thomas Arthur Small, an internist, who treated her for right shoulder pain.
Physical examination of the right shoulder revealed tenderness on palpation of the
acromioclavicular joint, deltoid muscle, trapezius muscle, and rhomboid muscle, crepitus on
palpation, and decreased range of motion. Dr. Small diagnosed tendinitis of the right shoulder.
Reports from Dr. David H. Rice, a Board-certified pulmonologist, dated October 26, 2007 to
January 23, 2008, noted appellant’s treatment for narcolepsy.
Appellant submitted a July 11, 2011 report from Dr. Jeffrey J. Fisher, a Board-certified
family practitioner, who treated her for sciatic nerve pain on and off for the past two years and
right shoulder pain. She had reported a history of tendinitis. Dr. Fisher diagnosed back pain and
shoulder joint pain. In an August 8, 2016 report, he noted that appellant had been treated several
times, but had not mentioned that her shoulder condition was work related until after the
March 2, 2015 office visit. Dr. Fisher noted that, pursuant to her description, he believed the
incident that occurred on August 27, 2014 aggravated her preexisting nonwork-related right
shoulder condition that resulted in the arthroscopic rotator cuff repair performed on
October 7, 2014. A July 15, 2011 lumbar spine x-ray was normal.
Appellant was treated by Dr. Geetha N. Shivakumar, a Board-certified psychiatrist, on
May 16, 2012, for subsyndromal post-traumatic stress disorder. Dr. Shivakumar noted that
appellant served in the Air Force from February 24, 1988 to February 29, 2008 and was
honorably discharged.
Appellant submitted physical therapy reports from August 19, 2013. She was also treated
by a nurse practitioner on September 3, 2014 and February 5, 2015 for chronic tendinitis of the
right shoulder, left shoulder pain, and bilateral wrist pain.
In a decision dated September 27, 2016, OWCP denied modification of its
September 9, 2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed is causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

3

Supra note 2.

4

Gary J. Watling, 52 ECAB 357 (2001).

4

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
It is undisputed that, on August 27, 2014, appellant opened a car door to exit a
government vehicle parked on an incline. However, the Board finds that she has failed to submit
sufficient medical evidence to establish that this work incident caused or aggravated her
diagnosed right shoulder condition.
Appellant submitted reports from Dr. Whittenburg dated September 15 and October 21,
2014 who diagnosed complete rotator cuff rupture, shoulder bursae and tendon disorders, and
rotator cuff disorders. On October 21, 2014 Dr. Whittenburg opined that he was unable to state
that appellant’s condition was a direct cause of the work factors, but in his professional opinion
her right shoulder injury “could have” been caused by a series of events that occurred on
August 27, 2014. He indicated that he could not address preexisting conditions since appellant
was not an established patient until September 15, 2014.
Similarly, on May 5, 2015 appellant was treated by Dr. Van Hal who diagnosed status
post arthroscopic rotator cuff repair of the right shoulder and acromioplasty on October 7, 2014.
Dr. Van Hal opined that within reasonable medical probability that the mechanism of injury of
pulling upward and externally rotating her arm “could” exacerbate and aggravate an underlying
degenerative condition of her shoulder. He indicated that the work incident described could be a
“probable source” of the right shoulder rotator cuff injury. Likewise, in a June 23, 2015 report,
Dr. Van Hal indicated that he “could not confirm unequivocally”; however, within a reasonable
medical probability the right shoulder rotator cuff injury did appear to be causally related to the
work incident based on his education, training and experience in dealing with shoulder issues.
The Board notes that Dr. Whittenburg and Dr. Van Hal’s reports provide some support
for causal relationship, but are insufficient to establish that the claimed right shoulder rotator cuff
tear was causally related to appellant’s employment duties. In Dr. Van Hal’s October 21, 2014
report, Dr. Whittenburg opined that he could not state that her injury was a direct cause of the
worker factors, but it “could have” been caused by a series of events that occurred. Similarly, he
opined that the work incident described would be a “probable source” of the right shoulder
5

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

6

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

5

rotator cuff injury, but he “could not confirm unequivocally.” However, at best, these reports
provide only speculative support for causal relationship as the physicians qualify their support by
noting that appellant’s employment “could have” caused his condition or was a “probable
source” of the injury. Dr. Whittenburg and Dr. Van Hal provided no medical reasoning to
support their opinions on causal relationship.7 Therefore, these reports are insufficient to meet
appellant’s burden of proof.
Appellant submitted a November 11, 2014 report from Dr. Chong who diagnosed right
shoulder pain, impingement, and full-thickness rotator cuff tear status post arthroscopic repair.
She had reported that on August 27, 2014, after pulling open a van door forcefully, her right arm
was forced into external rotation. Dr. Chong opined that, based on appellant’s history, she
sustained a work injury leading to significant symptoms of pain and weakness in the right
shoulder. Similarly, in an August 8, 2016 report, Dr. Fisher opined that, pursuant to her report,
he believed the incident that occurred on August 27, 2014 aggravated her preexisting nonworkrelated right shoulder condition that resulted in the arthroscopic rotator cuff repair performed on
October 7, 2014. However, Drs. Chong and Fisher merely repeat the history of injury as
reported by appellant without providing their own opinion regarding whether appellant’s
condition was work related.8 To the extent that they are providing their own opinion,
Drs. Chong and Fisher failed to provide a rationalized opinion regarding the causal relationship
between appellant’s right shoulder condition and the factors of employment believed to have
caused or contributed to such condition.9 Therefore, these reports are insufficient to meet
appellant’s burden of proof.
Other medical reports either predate the claimed injury or do not specifically address
whether appellant’s employment activities caused or aggravated a diagnosed medical condition.
These reports are of limited probative value.10
Appellant also submitted reports from a nurse practitioner and a physical therapist. The
Board has held that treatment notes signed by nurse practitioners11 and physical therapists have
no probative value as these providers are not considered physicians under FECA.12 Thus, the

7

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value); see A.M., Docket No. 10-205 (issued October 5,
2010) (a physician’s opinion must be independent from a claimant’s belief regarding causal relationship).
9

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).
10

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
11

Paul Foster, 56 ECAB 208 (2004) (a nurse practitioner is not a “physician” pursuant to FECA).

12

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).

6

treatment records from a physical therapist and a nurse practitioner are of no probative medical
value in establishing appellant’s claim.
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 his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.13 As appellant failed to submit such evidence, he has not
met his burden of proof.
Consequently, the Board finds that appellant has not submitted medical evidence
sufficient to establish that appellant’s work activities on August 27, 2014 caused or aggravated a
diagnosed medical condition.
On appeal appellant, through her representative, asserts that OWCP improperly denied
her claim noting that she believed she submitted sufficient evidence to establish that on
August 27, 2014 her employment factors contributed to her right shoulder condition. The
representative argues that it was not necessary for the employment injury by itself to have caused
appellant’s condition in order for it to be compensable. Rather, he referenced Arnold
Gustafson,14 and asserted that a person with a preexisting condition which was not disabling, but
which becomes disabling because of aggravation related to employment is entitled to
compensation.15 In Gustafson, the employee asserted that he had a myocardial infarction and
coronary condition causally related to emotional stress he experienced at work. The Board
determined that a person, with a preexisting condition which is not disabling but which becomes
disabling because of aggravation related to employment, regardless of the degree of such
aggravation, the resulting disability is compensable.
In the case before us, however, appellant has failed to submit sufficient medical evidence
establishing that her diagnosed right shoulder condition was caused or aggravated by her federal
employment. She has not submitted a physician’s rationalized report of causal relationship based
upon an accurate history of employment conditions, which describes how the work incident on
August 27, 2014 caused or aggravated her right shoulder condition. The Board notes that
medical rationale on causal relationship must be established before reference to the preexisting
right shoulder condition.16
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.
13

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

14

41 ECAB 131 (1989).

15

Rudy C. Sixta, Jr., 44 ECAB 727-31 (1993); Glenn C. Chasteen, 42 ECAB 493 (1991).

16

See J.M., 58 ECAB 478 (2007) (where the Board found that appellant did not meet his burden of proof in
establishing a work-related right wrist condition where his physician provided only conclusory support for causal
relationship; medical rationale was particularly necessary given that appellant injured his wrist while lifting luggage
in private employment); see also A.M., supra note 8 (the need for reasoning or rationale is especially important
where the claimant has a prior injury history involving the claimed condition).

7

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a right
shoulder injury causally related to the August 27, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8