United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
DEPARTMENT OF THE AIR FORCE,
BEALE AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 10-1721
Issued: March 22, 2011

Case Submitted on the Record

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

JURISDICTION
On June 15, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 16, 2009 decision denying his request for reconsideration of
the merits of a schedule award. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that no decision was made as to compensation for his
accepted condition of tinnitus.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 6, 2008 appellant, then a 51-year-old lead firefighter, filed an occupational
disease claim (Form CA-2) alleging that noise exposure at work caused hearing loss. On
March 24, 2008 she filed a claim for a schedule award (Form CA-7) and submitted a series of
audiograms and medical reports.
On May 8, 2008 the Office accepted that appellant was exposed to occupational noise
levels above 85 decibels from 1974 to 1980 during the course of his federal employment and
referred him to Dr. Nancy H. Appelblatt, a Board-certified otolaryngologist, to determine the
nature and extent of his hearing loss.
A June 3, 2008 audiogram performed by Dr. Appelblatt revealed the following decibel
losses at frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz): 5, 10, 15 and 60 for the right ear
and 10, 10, 30 and 55 for the left ear. In her July 9, 2008 report, Dr. Appelblatt diagnosed
sensorineural hearing loss and tinnitus “due to acoustic trauma from occupational exposure.”
She concluded that it was “medically probable” that appellant’s hearing loss was due to his
exposure to noise in federal employment as the findings are consistent with noise-induced
sensorineural hearing loss. Dr. Appelblatt opined that his complaints of tinnitus were “very
significant” and that he would benefit from bilateral digital hearing aids, which “would also act
as tinnitus maskers.”
On August 15, 2008 the Office accepted appellant’s claim for bilateral hearing loss and
tinnitus.
On September 6, 2008 an Office medical consultant, Dr. David N. Schindler, a
Board-certified otolaryngologist, reviewed Dr. Appelblatt’s June 3, 2008 audiogram and July 9,
2008 otologic examination report. After applying the Office’s protocols for determining hearing
loss, he found that appellant had a 0 percent monaural hearing loss in his right ear and a 1.9
percent monaural hearing loss in his left ear. Dr. Schindler concurred with Dr. Appelblatt that
hearing aids were indicated.
On November 4, 2008 the Office granted appellant a schedule award for two percent
hearing loss in his left ear, totaling 1.04 weeks of compensation for the period July 9 to 16, 2008.
It approved a hearing aid for his left ear. The Office noted that, although it had accepted
appellant’s claim for an employment-related binaural hearing loss, the loss in the right ear was
not ratable.
On November 28, 2008 appellant requested a review of the written record by an Office
hearing representative. He submitted a narrative statement dated November 17, 2008 and
resubmitted a number of audiograms.
By decision dated March 19, 2009, an Office hearing representative affirmed the
November 4, 2008 decision. He noted that the June 3, 2008 audiogram was conducted in
accordance with established Office standardized procedures and properly used to determine the
extent of impairment to appellant’s hearing.

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On October 23, 2009 appellant requested reconsideration and submitted an October 16,
2009 narrative statement discussing his noise exposure and a printout of the U.S. Department of
Labor’s website regarding Evaluation of Impairment. He also resubmitted copies of pages from
audiogram reports dated June 3 and September 6, 2008 by Dr. Appelblatt and Dr. Schindler.
Appellant stated that his tinnitus was longstanding and distressing and that he suffered from a
constant high-pitched ringing in his ears, which affected his perception, hearing acuity,
concentration and sleep.
By decision dated December 16, 2009, the Office denied appellant’s request for
reconsideration on the basis that the evidence submitted was insufficient to warrant further merit
review. Appellant failed to show that the Office erroneously applied or interpreted a specific
point of law, did not advance a relevant legal argument not previously considered, nor
constituted relevant and pertinent new evidence not previously considered by the Office.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act2
the Office’s regulations provide that a timely request for reconsideration in writing may be
reviewed on its merits if the employee has submitted evidence or an argument that either:
(1) shows that the Office erroneously applied or interpreted a specific point of law; or
(2) advances a relevant legal argument not previously considered by the Office; or (3) or
constitutes relevant and pertinent new evidence not previously considered by the Office.3
Section 10.608(b) of the Office regulations provide that, when an application for reconsideration
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.4
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.5
ANALYSIS
In support of his request for reconsideration, appellant submitted a narrative statement
dated October 16, 2009 and a printout of the U.S. Department of Labor’s website regarding
Evaluation of Impairment. He also resubmitted copies of pages from a June 3, 2008 audiogram
report by Dr. Appelblatt and a September 6, 2008 audiogram report by Dr. Schindler. The Board
finds that the printout regarding Evaluation of Impairment, is insufficient to reopen the case for
further merit review. It does not constitute relevant or pertinent new evidence concerning the
medical issue of whether appellant has more than two percent monaural (left ear) employment2

Id. Under section 8128 of the Act, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. Id. at § 8128(a).
3
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5

20 C.F.R. § 10.606(b)(2). D.K., 59 ECAB 141 (2007). See E.K., Docket No. 09-1827 (issued April 21, 2010).
; K.H., 59 ECAB 495 (2008); E.K., supra note 3
Eugene F. Butler, 36 ECAB 393 (1984).

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related hearing loss. The Board finds that the resubmission of the audiometric reports and
appellant’s narrative statement of exposure did not require reopening his case for merit review
because these submissions were previously reviewed and considered by the Office. This
evidence is duplicative of that already of record and reviewed by the Office. The Board finds
that it does not constitute relevant and pertinent new evidence. Therefore, appellant has not
established a basis for reopening his case.6
On appeal, appellant contends that the Office did not address compensation for his
accepted condition of tinnitus. He contended that he suffers from a constant high-pitched ringing
in his ears. Appellant noted that the Office’s website states that if the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed., 2009) do not evaluate
an occupational disease, other professionally-recognized standards may be used. He citied the
Oregon and Veterans Affairs’ guides as examples. The Board notes that the A.M.A., Guides
provide that “tinnitus is not a disease but rather a symptom that may be the result of disease of
injury.”7 The A.M.A., Guides state that “if tinnitus interferes with activities of daily living
[ADL’s], including sleep, reading (and other tasks requiring concentration), enjoyment of quiet
recreation and emotional well being, up to five percent may be added to a measurable binaural
hearing impairment.”8 As the A.M.A., Guides provide a method of evaluation for the condition
of tinnitus, appellant’s argument has no basis in fact. The Office accepted appellant’s tinnitus
condition and approved a hearing aid for his left ear. Moreover, the nature of the loss in this case
was of only the left ear as the weight was not ratable. The Board finds that the Office did
address the issue of compensation for appellant’s tinnitus. Appellant has not advanced a relevant
legal argument not previously considered by the Office.
Appellant did not submit any evidence to show that the Office erroneously applied or
interpreted a specific point of law, failed to advance a relevant legal argument not previously
considered by the Office and did not submit relevant and pertinent new evidence not previously
considered by the Office. As he did not meet any of the necessary requirements, the Board finds
that he is not entitled to further merit review.9
CONCLUSION
Because appellant’s request for reconsideration did not meet at least one of the criteria
required to reopen a case, the Board finds that the Office properly denied his request for
reconsideration without a merit review.

6

D.K., supra note 3.

7

A.M.A., Guides 249 (6th ed. 2009).

8

Id. See also R.D., 59 ECAB 127 (2007); S.G., 58 ECAB 383 (2007); Robert E. Cullison, 55 ECAB 570 (2004).

9

L.H., 59 ECAB 253 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the December 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2011
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
T.P., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, NATIONAL FORESTS IN
ALABAMA, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 14-1946
Issued: February 13, 2015

Case Submitted on the Record

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

JURISDICTION
On September 8, 2014 appellant filed a timely appeal from a June 30, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established a recurrence of disability for the period
July 21, 1999 through December 31, 2011 causally related to her July 13, 1979 employment
injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 13, 1979 appellant, then an 18-year-old part-time summer forestry aide, stepped
in a hole and injured her right knee. OWCP accepted the claim for bilateral localized
osteoarthritis, lower leg, bilateral and old bucket handle tear of the right medial meniscus and
paid appropriate compensation. Appellant underwent an August 24, 1979 arthroscopy of the
right knee with removal of a torn medial meniscus and a bucket handle tear of the medial
meniscus. By decision dated November 18, 1981, she received a schedule award for 10 percent
permanent impairment of her right lower extremity. The award ran for the period March 11
through September 28, 1981. By decision dated September 20, 2011, OWCP accepted a July 18,
1999 recurrence of disability for medical treatment.
On January 11, 2013 appellant filed a claim for a recurrence of disability for time loss
from work for the period July 21, 1999 through December 31, 2011. No evidence was submitted
in support of the claim.
In a February 12, 2013 letter, OWCP requested that appellant submit additional factual
and medical information, including bridging medical evidence to support disability from 1987
through 1998. Appellant was afforded 30 days to submit the requested information. OWCP
noted that appellant had also filed a claim for an increased schedule award.
OWCP received a March 21, 2013 statement from appellant indicating that she had
another knee surgery in 1989 and that there would not be a lot of medical records after her 1989
knee surgery as her knee got better for a time. It received medical evidence from March 1997
onward; however, the requested evidence from 1987 through 1998 pertaining to appellant’s
knees was not received.2
In a March 11, 1981 report, Dr. Walter D. Wright, a Board-certified orthopedic surgeon,
stated that appellant was seen on March 9, 1981 and was wearing high heels and appeared to be
walking without difficulty. He noted that she works as a cashier five days a week. Examination
findings revealed that appellant was able to do a deep knee bend without any problem and she
could walk on her heels and toes without any problem. The circumference of her knees,
measured at the midpatella, was equal bilaterally with no effusion of the knee. There was a
minimal drawer sign on the right side, slightly more than on the left. X-rays of the right knee
appeared to be normal. Appellant was grossly overweight. Dr. Wright opined that she had five
percent impairment of the right lower extremity due to removal of the medial meniscus. He also
discharged appellant from medical care.
In a July 1, 1999 report, Dr. Jeffery S. Malka, a Board-certified orthopedic surgeon,
indicated that appellant was seen for advanced osteoarthritis of her right knee. He noted that she
was extremely overweight and this was significantly aggravating the symptoms in her knee.
Because of appellant’s age, it was unwise to recommend a total knee arthroplasty. Dr. Malka
opined that a better alternative would be for appellant to lose 150 to 200 pounds which would
2

Medical evidence from March 24, 1997 through December 30, 1998 pertained to back and shoulder conditions,
a March 24, 1997 motor vehicle accident, and bilateral carpal tunnel conditions.

2

benefit her knees and knee arthritis and improve the odds should she have a knee replacement in
the future.
Of record were reports pertaining to appellant’s pending schedule award claim. In a
March 4, 2013 report, Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon and OWCP
referral physician, noted the history of the July 13, 1979 injury and that medical records at that
time indicated a two-year history of giving way of the right knee and a weight of approximately
155 pounds. He noted that appellant remained under the care of a Dr. John Nehil and Dr. Wright
and was ultimately discharged from active treatment on March 11, 1981 by Dr. Wright. X-rays
taken within a couple years of the work incident were positive for degenerative arthritis within
the knee consistent with medial compartment arthritis. Dr. Hanley reported that a review of the
record and conversation with appellant revealed that she had gained more weight to the point she
ultimately had a gastric bypass in 2000 that was complicated by a number of postoperative
difficulties. Appellant has not worked since approximately 1999 or 2000 when she was working
as a senior technical writer for the Coast Guard. Dr. Hanley noted that appellant’s knee
problems had gotten to the point where she could no longer work and she went on long-term
disability. He further noted that, as early as 2000, it was recommended that she undergo a total
knee replacement and that she has been to the emergency room several times for management of
her continuing symptoms. Dr. Hanley diagnosed status post bucket handle tear, right medial
meniscus excised, and bilateral advancing degenerative joint disease of the knees. He opined
that, because appellant has an accelerated degenerative process in the right knee, this represented
residuals of the initial injury. Dr. Hanley further opined that appellant would be able to work a
sedentary position with permanent restrictions.
By decision dated May 1, 2013, OWCP denied appellant’s claim for compensation based
on wage loss for the period July 21, 1999 through December 31, 2011. It found that she failed to
submit rationalized medical evidence establishing the causal relationship between her claimed
disability and the original injury.
By decision also dated May 1, 2013, OWCP granted appellant a schedule award for a 70
percent total impairment of the right lower extremity. It noted that, as 10 percent was previously
paid, she was due only 60 percent. The award ran for the period December 31, 1990 through
April 23, 1994.
On April 7, 2014 OWCP received a March 28, 2014 request for reconsideration from
appellant’s counsel who argued that the medical evidence established that appellant suffered a
recurrence of disability beginning July 21, 1999. Counsel noted that OWCP failed to obtain
clarifying information from Dr. Hanley, OWCP’s second opinion physician, relative to periods
of disability or ask whether appellant suffered a recurrence of injury beginning July 21, 1999.
He further presented some arguments with respect to the schedule award determination.3 Copies
of medical evidence previously of record were received along with new medical evidence.
In progress reports dated October 2 and November 6, 2013, Dr. Michael A. Franchetti, a
Board-certified orthopedic surgeon, provided an impression of severe advanced osteoarthritis,
3

OWCP addressed the schedule award arguments in its November 4, 2014 decision, which was issued after
appellant had appealed to the Board.

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both knees, right worse than left, and exacerbation of chronic left ankle sprain and opined that all
the impressions were causally related to the July 13, 1979 injury. In a December 18, 2013
report, he stated that the injuries and conditions related to appellant’s on-the-job injury of
July 13, 1979 included severe advanced osteoarthritis of both knees, right worse than left, and
right knee old bucket-handle tear of the medial meniscus. Due to her significant knee injuries
sustained at work on July 13, 1979, Dr. Franchetti opined that appellant developed progressive
post-traumatic arthritis that was now severe and advanced in both knees, right worse than left.
He noted that she has undergone multiple arthroscopic surgeries of her injured right knee with
excision of a bucket handle tear of her right medial meniscus and additional surgical
intervention. Dr. Franchetti opined that the progressive biomechanical alterations due to these
multiple surgeries resulted in appellant’s progressive post-traumatic osteoarthritis in her right
knee. As for her left knee, he indicated that she developed overuse condition due to persistent
and progressive biomechanical alterations and pain in the right knee and the continual favoring
of her injured right knee. Dr. Franchetti advised that the post-traumatic arthritis in appellant’s
left knee was causally related to her July 13, 1979 work injury.
In January 15, April 3 and 16, 2014 reports, Dr. Kevin E. McGovern, a Board-certified
orthopedic surgeon, noted the history of the July 14, 1979 injury and provided an impression of
right knee severe degenerative arthritis and left knee moderately severe arthritis as a result of the
July 13, 1979 injury.
CA-7 forms dated January 14 and 21, 2014 were received.
In a March 19, 2008 report, Dr. Philip Bobrow, a Board-certified orthopedic surgeon,
noted that appellant injured her knee 20 years ago on August 19, 1979 working a summer job.
Appellant’s symptoms have been present for 10 years and the pain was severe and had been
worsening. Dr. Bobrow diagnosed advanced osteoarthritis right and left knee. In an August 31,
2010 report, he noted the history of the June 1979 injury and that there were no prior work
injuries to the same area of the body. Dr. Bobrow noted that, since the onset, appellant’s
symptoms had been worsening and that the symptoms had been present for over 10 years. An
impression of advanced osteoarthritis both knees was provided and bilateral total knee
replacements were recommended. In a January 9, 2011 discharge application, Dr. Bobrow noted
that appellant had advanced osteoarthritis right knee secondary to old injury August 1979 and
that she has been unable to work since April 25, 1999.
In an April 5, 2000 report, Dr. Joseph K. Jamaris, a Board-certified neurosurgeon, noted
that appellant had considerable knee problems and pain for quite some time before March 23,
1999 when her right knee locked at work, while she was a senior technical writer at the Coast
Guard. He noted that appellant also had three surgeries of the right knee. A diagnosis of
advanced degenerative changes of both knees, especially the right, and lumbar discomfort were
provided. Dr. Jamaris stated that both syndromes have undergone significant exacerbation in the
last year and are progressively deteriorating. He opined that both syndromes’ intensity and
progressive deterioration were a consequence of her morbid obesity. Dr. Jamaris also opined
that appellant’s lumbar and right shoulder complaints were secondary to the degeneration of both
knees and her morbid obesity.

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An attending physician’s statement by a Dr. Ajrawap dated May 12, 1999 noted
conditions of herniated lumbar disc, severe degenerative arthritis both knees, and osteoarthritis
right shoulder.
In a February 18, 1999 report, Dr. Malka noted that appellant had advanced osteoarthritis
of the knees with the additional problem of weighing 320 pounds. He opined that she was
physically disabled because she could not walk very far. Dr. Malka indicated that at her age,
knee replacements were not the best option and that it was preferable for her to lose weight, with
a recommended weight loss of 150 to 200 pounds. Progress notes of February 17 and March 24,
1999 were provided.
In a February 29, 2000 report, Dr. Errol L. Bennett, a Board-certified orthopedic surgeon,
noted that appellant’s medical history started 20 years ago when she injured her knees during a
fall at school and approximately 17 years ago she fell in a park and “pulled ligaments in her
knee,” which resulted in two surgical procedures. He noted that approximately 10 years ago, she
had arthroscopy of her right knee for popping and giving away. Dr. Bennett noted that she was
recently seen by a physician who recommended total knee replacement arthroplasty but because
of her weight had recommended weight reduction and deferred surgery until a more normal body
weight was achieved. He reviewed medical records and presented examination findings.
Dr. Bennett diagnosed obesity, degenerative arthritis of both knees, right worse than left, chronic
intermittent low back pain secondary to degenerative disc disease, and chronic right shoulder
pain. He opined that appellant has definitive restrictions and limitations in her physical abilities
which would make it difficult for her to perform her regular occupation in terms of activity
within an office environment. Dr. Bennett opined that appellant was not a good candidate for a
knee replacement arthroplasty given her young age and significant obesity. He opined that
appellant’s progressive degenerative arthritis primarily of the right knee, associated with
degenerative changes in her lumbosacral spine and her right shoulder, resulted in physical
impairment.
In a July 23, 2012 report, Dr. William Launder, a Board-certified orthopedic surgeon,
provided an impairment determination.
By decision dated June 30, 2014, OWCP denied modification of the May 1, 2013
recurrence decision.
LEGAL PRECEDENT
FECA pays compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.4 Disability means the incapacity, because of an
employment injury, to earn the wages the employee was receiving at the time of injury. It may
be partial or total.5

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

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A recurrence of disability means an inability to work, after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness. This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed her established physical
limitations.6
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.7 Where no such rationale is present, medical evidence is of diminished probative
value.8
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between her present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.9
ANALYSIS
OWCP accepted that, as a result of the July 13 1979 work injury, appellant sustained
bilateral localized osteoarthritis, bilateral lower leg, and old bucket handle tear of right medial
meniscus. Dr. Wright discharged appellant from medical care for her knees on March 9, 1981.
OWCP subsequently accepted a July 18, 1999 recurrence of disability for medical treatment.
Appellant filed a recurrence of disability claim for the period July 21, 1999 to
December 31, 2011. In the instant case, she has failed to submit any medical opinion containing
a rationalized, probative report which relates her claimed recurrence of disability for work as of
July 21, 1999 and continuing to her accepted July 13, 1979 work injury. For this reason,
appellant has not met her burden of proof to establish her claim that she sustained a recurrence of
disability for the claimed period as a result of her accepted employment conditions.
Medical evidence of bridging symptoms must demonstrate that the claimed recurrence
was causally related to the accepted injury.10 There is no bridging medical evidence of record to
support wage loss for total disability for the period July 21, 1999 through December 21, 2011.
6

Id. at § 10.5(x).

7

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

8

Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see Ronald C. Hand, 49 ECAB 113 (1957).

9

Mary A. Ceglia, 55 ECAB 626 (2004).

10

Ricky S. Storms, 52 ECAB 349 (2001).

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In his 1999 reports, Dr. Malka opined that appellant has advanced osteoarthritis of the
knees with the additional problem of being extremely overweight. He stated, in his July 1, 1999
report, that her weight significantly aggravates the symptoms in her knee. While Dr. Malka
recommended a total knee arthroplasty, he opined that a better alternative would be for appellant
to lose weight of 150 to 200 pounds to relieve her symptoms and improve the odds should she
have a knee replacement at a later date. With regard to appellant’s diagnosis of advanced
osteoarthritis of her right knee, Dr. Malka did not, in either of his reports, provide an explanation
which included a history of bridging symptoms from the 1979 injury or offer an opinion on
causal relationship. 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.11
In his March 4, 2013 report, Dr. Hanley, an OWCP referral physician, noted the history
of the July 13, 1979 injury, appellant’s medical treatment, and that she was overweight at the
time of the incident and had gained significant weight to the point that she had a gastric bypass in
2000. He noted that she had stopped working in 1999 or 2000 as a senior writer for the Coast
Guard and that her knee problems had worsened to the point where she could no longer work and
she went on long-term disability. Dr. Hanley also noted that a total knee replacement was
recommended in 2000. He opined that, because appellant had accelerated degenerative process
in the right knee, this represented residuals of the initial injury. However, Dr. Hanley did not
provide an explanation which included a history of bridging symptoms from the 1979 injury or
provide a rationalized, probative medical opinion indicating that appellant sustained a recurrence
of disability from July 21, 1999 onwards causally related to the accepted conditions. His opinion
on causal relationship is of limited probative value as he did not provide adequate medical
rationale in support of his conclusions.12 Dr. Hanley did not explain why appellant’s current
condition and alleged disability were causally related to the accepted injury. He further offered
no opinion as to the effect or consequence of her weight on the accelerated degenerative process
in the right knee. While appellant argued that OWCP should have obtained clarifying
information from Dr. Hanley regarding whether she suffered a recurrence of injury beginning
July 21, 1999, the Board notes that Dr. Hanley was serving as an OWCP referral physician with
regard to the amount of impairment of the right lower extremity and thus had no obligation to
request clarification with regard to the recurrence issue. For the reasons offered above,
Dr. Hanley’s opinion is insufficient to establish appellant’s claim.
In his 2013 reports, Dr. Franchetti provided an impression of severe advanced
osteoarthritis, both knees, right worse than left, and exacerbation of chronic left ankle sprain,
which he opined were causally related to the July 13, 1979 injury. In his December 18, 2013
report, he opined that, due to the significant knee injuries sustained at work on July 13, 1979,
appellant developed progressive post-traumatic arthritis in both knees, which was now severe,
and that the progressive biomechanical alterations due to her surgical procedures also resulted in
her progressive post-traumatic osteoarthritis in her right knee. Dr. Franchetti further opined that
she developed overuse condition in her left knee due to biomechanical alterations and pain in her
right knee and the continual favoring of her injured right knee. He, however, did not provide an
explanation which included a history of bridging symptoms from the 1979 injury or provide a
11

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

12

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

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rationalized, probative medical opinion indicating that appellant sustained a recurrence of
disability from July 21, 1999 onward causally related to the accepted conditions.
Dr. Franchetti’s opinion on causal relationship is of limited probative value as he did not provide
adequate medical rationale in support of his conclusions.13 His statements are broad and vague
as they do not explain whether appellant’s accepted work conditions contributed to her claimed
condition and/or disability as of July 21, 1999. Thus, this report is insufficient to establish
appellant’s claim.
Dr. McGovern provided an impression of right knee severe degenerative arthritis and left
knee moderately severe arthritis as a result of the July 13, 1979 injury. However, he did not
provide a rationalized, probative medical opinion indicating that appellant sustained a recurrence
of disability on July 21, 1999 causally related to her accepted work conditions or provide any
medical rationale as to how the diagnosed conditions related to the July 13, 1979 work injury.
Thus, this report is insufficient to establish appellant’s claim.
The reports from Dr. Bobrow, Dr. Bennett, and Dr. Launder fail to contain a rationalized,
probative opinion on the issue of whether appellant sustained a recurrence of disability causally
related to her accepted work conditions. Dr. Bobrow and Dr. Bennett noted the history of the
work injury. Dr. Bobrow provides an impression of advanced osteoarthritis in both knees and
recommends bilateral total knee replacements.
Dr. Launder provided an impairment
determination. Neither Dr. Bobrow nor Dr. Launder provide an explanation which included a
history of bridging symptoms from the July 13, 1979 injury or offer an opinion as to whether
appellant sustained a recurrence of disability causally related to her accepted work conditions.
Dr. Bennett diagnosed obesity, degenerative arthritis in both knees, chronic intermittent low back
pain, secondary to degenerative disc disease and chronic right shoulder pain and opined that her
progressive degenerative arthritis of the right knee, associated with degenerative changes in her
lumbosacral spine and her right shoulder, resulted in physical impairment which make it difficult
for her to perform her regular activity within an office environment. However, he provided no
medical explanation of whether appellant’s accepted conditions contributed to her claimed
condition and/or disability as of July 21, 1999. Thus, these reports are insufficient to establish
appellant’s claim.
OWCP also received Dr. Ajrawap’s statement of May 12, 1999 which noted conditions
of herniated lumbar disc, severe degenerative arthritis both knees, and osteoarthritis right
shoulder. However, the medical report did not offer any opinion regarding the cause of the
diagnosed conditions or whether appellant was disabled as of July 21, 1999 as a result of her
accepted conditions.
Dr.
changes in
significant
syndromes
obesity.

13

Jamaris, in his April 5, 2000 report, noted that appellant had advanced degenerative
both knees and lumbar discomfort. While he stated that both syndromes underwent
exacerbation in the last year and were progressively deteriorating, he related the
intensity and progressive deterioration as a consequence of appellant’s morbid

Id.

8

Accordingly, the Board finds that appellant has not met her burden of proof in this case
as she has not submitted a sufficiently reasoned medical opinion explaining why her recurrence
of disability beginning July 21, 1999 was caused or aggravated by the July 13, 1979 injury.
On appeal, appellant’s counsel contends that appellant submitted prima facie evidence
that she suffered a recurrence of her work injury on July 21, 1999 onward. However, as noted
above, the medical evidence does not establish that appellant was disabled from work for the
period July 21, 1999 through December 21, 2011 due to her accepted work injury.14 Appellant
may submit new evidence or argument as part of a formal 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 failed to establish a recurrence of disability causally
related to her July 13, 1979 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 30, 2014 is affirmed.
Issued: February 13, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
14

Counsel also offered arguments pertaining to OWCP’s schedule award determination. These arguments,
however, are not relevant to the current appeal.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Grand Coulee, WA,
Employer
__________________________________________

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

Docket No. 07-1797
Issued: January 16, 2008

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 June 25, 2007 appellant filed a timely appeal from a May 4, 2007 merit decision of
the Office of Workers’ Compensation Programs denying his occupational disease claim.
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 established that he sustained osteoarthritis of the left
knee, shoulders, wrists, hips, ankles and feet causally related to factors of his federal
employment.
FACTUAL HISTORY
The Office accepted that appellant sustained a right knee strain, meniscal tear and
osteoarthritis due to an April 10, 1990 employment injury. The Office assigned the claim file

number 140253510 and authorized a right total knee replacement on February 24, 2004.
Appellant stopped work on February 4, 2004 and returned to work on May 10, 2004.
On August 26, 2003 appellant filed a notice of recurrence of disability on that date
causally related to his April 10, 1990 employment injury. He related that, after he resumed work
in 1990 following arthroscopic surgery, he experienced increased discomfort. The Office
developed the notice of recurrence of disability as an occupational disease claim, assigned file
number 142034501.
By letter dated October 8, 2004, the Office requested that appellant clarify the condition
which he claimed as related to factors of his federal employment. The Office noted that he had
an accepted claim for right knee osteoarthritis under file number 140253510. The Office
informed appellant that the evidence it had reviewed, the medical evidence under file number
140253510, was insufficient to establish his claim and requested additional factual and medical
information.1
In a response received November 8, 2004, appellant attributed his arthritis in his joints to
his 1990 employment injury and his employment duties, including extensive walking on
concrete, climbing stairs and operating valves and disconnects. He stated: “The concrete floors
and stairs were greatly accelerating my arthritis. The arthritis is in both knees, both ankles, both
feet, both hips, both shoulders and both wrist[s].” In 1999 appellant began working in the
switchyard rather than the powerhouse so that he did not have to walk on concrete.
By decision dated December 7, 2004, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that he sustained a condition due to the accepted work
factors. On December 11, 2004 appellant requested an oral hearing.
In a report dated January 10, 2005, Dr. Gary L. Craig, a rheumatologist, discussed
appellant’s history of right knee osteoarthritis due to a work injury. He also diagnosed
“osteoarthritis of the left knee, without any clear injury at work” and found that “extensive
weight bearing [that] he had to do especially climbing stairs and spending long hours on concrete
may have aggravated his [osteoarthritis] symptoms.” Dr. Craig further diagnosed rotator cuff
tendinitis with impingement of the shoulder which “may be contributed to by his recurrent lifting
and reaching at work in the absence of a single specific injury.”
On January 24, 2005 an Office hearing representative set aside the December 7, 2004
decision after finding that the case record was incomplete. He noted that the evidence listed by
the Office as reviewed in its October 2004 development letter was not contained in the case
record. The hearing representative remanded the case for reassemblage of the case record and a
de novo decision.
In a report dated August 31, 2005, Dr. George R. Monkman, a Board-certified orthopedic
surgeon, diagnosed impingement of the left shoulder and discussed appellant’s history of a 1996

1

The medical evidence reviewed by the Office under file number 140253510 is relevant to appellant’s accepted
right knee condition.

2

distal clavical excision. He addressed appellant’s work requirements, including walking, stair
climbing, kneeling and squatting. Dr. Monkman stated:
“It is certainly a good possibility that his work situation did aggravate what was
very likely already preexisting condition[s] in his shoulders and knees. He has
read his compensation manual and it does point out that work-aggravated
situations are covered by his [d]isability insurance. It would be my position that,
indeed, his shoulder and left knee problem were work aggravated. We do know,
however, that his degenerative changes in his knee preexisted [the] work
aggravation, but that [the] work aggravation probably culminated in the total knee
arthroplasty on the left and shoulder surgery, though, on the left side and the right
side; most recent one being in 1997 on the right, with left shoulder in 1996.”
By decision dated March 21, 2006, the Office denied appellant’s claim after finding that
the medical evidence did not establish a condition causally related to the accepted work factors.
On March 24, 2006 appellant requested reconsideration. He submitted a January 14,
2005 report from Dr. Monkman relevant to his right knee osteoarthritis. In a decision dated
April 10, 2006, the Office denied merit review of this claim under 5 U.S.C. § 8128. On April 14,
2006 the Office set aside its April 10, 2006 decision as it failed to consider new evidence
submitted with the reconsideration request.
On April 14, 2006 the Office referred appellant to Dr. John Seaman, a rheumatologist,
and Dr. Joseph Noonan, a Board-certified orthopedic surgeon, for second opinion examinations.
The Office requested that the physicians review the statement of accepted facts and provide an
opinion regarding his current medical condition and any relationship to employment. In the
statement of accepted facts, the Office listed appellant’s work duties and described his April 10,
1990 employment injury. In a report dated June 2, 2006, Dr. Seaman and Dr. Noonan discussed
appellant’s 1990 work injury to his right knee and the gradual onset of pain in his left knee and
bilateral shoulders.2 Appellant related “his left knee problems to some degree to walking on
concrete.” The physicians listed detailed findings on orthopedic and rheumatologic examination.
Dr. Seaman and Dr. Noonan diagnosed a right total knee replacement due to appellant’s
employment. The physicians also diagnosed status post excision of exostosis or osteochondroma
of the right medial femoral condyle, osteoarthritis of the left knee status post arthroscopy and
debridement and left knee replacement, bilateral acromioclavicular joint arthritis, status post
bilateral distal clavicle excision and acromioplasty of the right shoulder, impingement syndrome
and rotator cuff tear of the left shoulder. Dr. Seaman and Dr. Noonan found the above diagnoses
“unrelated to the industrial injury on a more-probable-than-not basis.” The physicians stated:
“The only diagnosed condition related to the employment factors is that of the
right knee. All of the right knee diagnoses have stemmed from the work-related
injury leading to the medial and lateral meniscectomies, partial, of each knee and
this is by direct cause. It is not thought that there was any aggravation,
precipitation, or acceleration of any other condition, specifically regarding [his]
left knee, right shoulder or left shoulder.”
2

The physicians noted that appellant retired from employment in May 2005.

3

By decision dated July 21, 2006, the Office denied modification of its December 7, 2004
decision.3
Appellant appealed to the Board. By order dated December 21, 2006, the Board
remanded the case after finding that the record was incomplete.4 The Board found that the
Office did not follow the hearing representative’s instructions in his January 24, 2005 decision to
obtain evidence listed in its October 8, 2004 development letter.
By letter dated March 14, 2007, the Office noted that it was unable to locate some
documents associated with file number 142053510 and requested that appellant submit the
information. Appellant submitted the requested evidence on March 27, 2007. The Office
associated the evidence from both file numbers.
In a decision dated May 4, 2007, the Office denied appellant’s claim on the grounds that
the medical evidence was insufficient to show that he sustained a medical condition due to the
identified employment factors. The Office found that the opinions of Dr. Noonan and
Dr. Seaman represented the weight of the medical evidence and established that appellant had no
condition aggravated by employment except for his accepted right knee condition in file
number 142053510.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.6 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.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) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;8 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;9 and (3) medical evidence establishing the
3

In a January 24, 2005 decision, the hearing representative set aside the Office’s December 7, 2004 decision.

4

T.M., Docket No. 06-2044 (issued December 21, 2003).

5

5 U.S.C. §§ 8101-8193.

6

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

7

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

8

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

9

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

4

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.10
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.11 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,12 must be one of reasonable medical certainty13 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.14
When employment factors cause an aggravation of an underlying condition, the employee
is entitled to compensation for the periods of disability related to the aggravation.15 When the
aggravation is temporary and leaves no permanent residuals, compensation is not payable for
periods after the aggravation has ceased, even if the employee is medically disqualified to
continue employment because of the effect work factors may have on the underlying condition.16
ANALYSIS
Appellant attributed his osteoarthritis of the left knee, ankles, feet, hips, shoulders,
elbows and wrists to extensive walking and climbing on concrete and operating values and
disconnects. The Office accepted the occurrence of the claimed employment factors. The issue,
therefore, is whether the medical evidence establishes a causal relationship between the claimed
conditions and the identified employment factors.
On January 10, 2005 Dr. Craig noted that appellant had a history of right knee
osteoarthritis due to an employment injury. He also diagnosed left knee osteoarthritis with no
evidence of a specific injury. Dr. Craig indicated that the “extensive weight bearing he had to do
especially climbing stairs and spending long hours on concrete may have aggravated his
[osteoarthritis] symptoms.” He also diagnosed rotator cuff tendinitis with impingement of the
shoulder and found that lifting and reaching at work may have contributed to appellant’s
shoulder condition. Dr. Craig’s opinion, however, that work factors may have aggravated or
contributed to appellant’s shoulder and right knee condition is speculative in nature. The Board
10

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

11

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

12

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

13

John W. Montoya, 54 ECAB 306 (2003).

14

Judy C. Rogers, 54 ECAB 693 (2003).

15

Chris Wells, 52 ECAB 445 (2001).

16

Raymond W. Behrens, 50 ECAB 221 (1999).

5

has held that medical opinions which are speculative or equivocal in character have little
probative value.17
In a report dated August 31, 2005, Dr. Monkman diagnosed impingement of the left
shoulder. He found that it was “a good possibility that [appellant’s] work situation did aggravate
what was very likely already preexisting condition[s] in his shoulders and knees.” Dr. Monkman
opined that his knee degeneration preexisted any aggravation due to employment but that the
work aggravation “probably culminated in the total knee arthroplasty on the left and shoulder
surgery. He concluded that appellant’s work aggravated his left knee and shoulder condition.
Dr. Monkman’s opinion that employment factors “probably” aggravated the preexisting
degenerative changes in appellant’s left knee and his left shoulder impingement is couched in
speculative terms and thus of diminished probative value.18 Further, the physician did not
provide any rationale for his causation finding. A mere conclusion without the necessary
rationale explaining how and why the physician believes that a claimant’s accepted exposure
could result in a diagnosed condition is not sufficient to meet a claimant’s burden of proof.19
The record contains evidence that appellant’s work exposure did not aggravate any
condition other than his right knee osteoarthritis, accepted by the Office under file number
14025310.
On June 2, 2006 Dr. Noonan and Dr. Seaman performed second opinion
examinations. The physicians diagnosed status post excision of exostosis or osteochondroma of
the right medial femoral condyle, osteoarthritis of the left knee status post arthroscopy and
debridement and left knee replacement, bilateral acromioclavicular joint arthritis, status post
bilateral distal clavicle excision and acromioplasty of the right shoulder and left shoulder
impingement syndrome and rotator cuff tear. Dr. Noonan and Dr. Seaman found that only
appellant’s right knee conditions and total knee replacement were related to employment factors
and that the remaining diagnoses were “unrelated to the industrial injury on a more-probablethan-not basis.” The physicians further concluded that work factors did not aggravate,
precipitate or accelerate a left knee or shoulder condition. Accordingly, appellant has not met his
burden of proof to establish that he sustained arthritis of the left knee, feet, hips, shoulders and
wrists causally related to factors of his federal employment.
CONCLUSION
The Board finds that appellant has not established that he sustained osteoarthritis of the
left knee, shoulders, wrists, hips, ankles and feet causally related to factors of his federal
employment.

17

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
18

Id.

19

See Beverly A. Spencer, supra note 10.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 4, 2007 is affirmed.
Issued: January 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Staten Island, NY, Employer
__________________________________________

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

Docket No. 20-1030
Issued: November 20, 2020

Case Submitted on the Record

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

JURISDICTION
On April 14, 2020 appellant, through counsel, filed a timely appeal from an October 25,
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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective February 26, 2019, as he no longer had residuals or
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.

disability due to his accepted September 22, 2008 employment injury; and (2) whether appellant
has met his burden of proof to establish continuing employment-related disability or residuals on
or after February 26, 2019.
FACTUAL HISTORY
On September 22, 2008 appellant, then a 59-year-old manager, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his lower back when he slipped on water
in the men’s bathroom while in the performance of duty. OWCP accepted the claim for a back
contusion. It subsequently expanded its acceptance to include an exacerbation of both sciatica and
lumbosacral radiculopathy. Appellant stopped work on September 22, 2008 and returned to fulltime limited-duty work on January 12, 2009. He stopped work again on February 9, 2009.3
OWCP paid appellant wage-loss compensation on the supplemental rolls beginning March 22,
2010 and on the periodic rolls beginning June 6, 2010.4
An October 21, 2008 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated bilateral foraminal impingement at L3-4, L4-5, and L5-S1 with disc space narrowing
and diffuse posterior disc bulging, and advanced spondylosis. A February 27, 2009 MRI scan of
the lumbar spine revealed central disc bulges at L2-3 and L3-4 and a broad-based disc bulge at
L4-5. An electromyogram (EMG) dated April 7, 2009 showed L4-5 left radiculopathy.
In a progress report dated July 19, 2017, Dr. David N. Lifschutz, a neurologist, opined that
appellant had continued low back pain due to a September 22, 2008 employment injury. He noted
that appellant had a history of a 1996 herniated disc due to an employment injury and a history of
a laminectomy at L3 to L5, discectomy at L3-5, and posterolateral fusion at L3-4. Dr. Lifschutz
diagnosed lumbosacral dorsopathy with an axial component/facet syndrome, chronic myofasciitis
with a left radicular component, left L4-5 radiculopathy as demonstrated by electrodiagnostic
studies, disc pathology at multiple levels, and nerve root impingement as demonstrated by MRI
scan. Dr. Lifschutz attributed the diagnosed conditions to the September 22, 2008 employment
injury and opined that appellant was permanently and totally disabled.
On September 5, 2017 OWCP referred appellant to Dr. Lynne Carmickle, a Board-certified
neurologist, for a second opinion examination.
In a report dated September 19, 2017, Dr. Carmickle reviewed appellant’s history of an
injury in 1996 when he fell off a truck and a subsequent employment injury on September 22, 2008
at work. On examination she found full motor strength and a negative straight leg raise bilaterally
without spasms. Dr. Carmickle reviewed the evidence of record. She indicated that the findings
on examination had revealed symptom magnification without evidence of lumbosacral

3
By decision dated April 9, 2010, OWCP accepted that he had sustained an employment-related recurrence of
disability on February 2, 2009.
4

OWCP previously accepted that appellant sustained: thoracic/lumbosacral neuritis/radiculitis due to a March 9,
1999 employment injury, assigned OWCP File No. xxxxxx941; a lumbar sprain due to a May 14, 2003 employment
injury, assigned OWCP File No. xxxxxx169; and a lumbar sprain due to a February 9, 2009 employment injury,
assigned OWCP File No. xxxxxx350. Appellant’s claims have not been administratively combined.

2

radiculopathy. Dr. Carmickle found that appellant could return to his usual employment and that
he had no “neurological impairment or disability related to the accident of September 22, 2008.”
In a progress report dated October 18, 2017, Dr. Lifschutz reiterated the diagnoses and
causation finding as in his July 19, 2017 report. He opined that appellant was permanently and
totally disabled from work. Dr. Lifschutz provided a similar report on January 17, 2018.
OWCP determined that a conflict in evidence arose regarding appellant’s current condition
and disability. On April 10, 2018 it referred him to Dr. Andrea I. Reznik, a Board-certified
neurologist, for an impartial medical examination.
In a report dated April 19, 2018, Dr. Reznik discussed appellant’s history of a slip and fall
at work on September 22, 2008 and his prior history of a herniated disc treated with surgery in
1998. She reviewed the medical evidence of record, including the results of diagnostic testing.
On examination Dr. Reznik found full strength, noting that appellant “gives way abruptly without
resistance indicating [an] incomplete attempt at maintaining the strength due to a voluntary act.”
She indicated that he had subjectively decreased sensation in the right hand and left lower
extremity. Dr. Reznik found “exaggerated and nonorganic findings on a neurological
examination.” She opined that appellant could perform his usual employment as a manager and
required no further medical treatment. Dr. Reznik noted, “It is my impression that the neurological
examination is essentially within a normal range for [his] age and underlying osteoarthritis, which
of course is an age[-]related problem unrelated to the accident of September 22, 2008.”
On May 2, 2018 Dr. Lifschutz diagnosed lumbosacral dorsopathy with an axial
component/facet syndrome, chronic myofascial pain with a left radicular component, evidence of
left L4-5 radiculopathy, and disc pathology at multiple levels with nerve root impingement. He
attributed the diagnosed conditions to the September 22, 2008 employment injury and found that
appellant was permanently and totally disabled from employment.
In an attending physician’s report (Form CA-20) dated May 24, 2018, Dr. Lifschutz
diagnosed a disc herniation and lumbar radiculopathy and checked a box marked “No” in response
to the question of whether the condition was caused or aggravated by an employment activity. He
found that appellant was totally disabled from work. In a work capacity evaluation (Form OWCP5c) of even date, Dr. Lifschutz indicated that appellant was unable to perform all activities.
On July 30, 2018 OWCP advised appellant of its proposed termination of his wage-loss
compensation and medical benefits based on Dr. Reznik’s report finding that he had no further
employment-related residuals or disability due to his September 22, 2008 employment injury. It
afforded him 30 days to submit additional evidence or argument if he disagreed with the proposed
termination. OWCP indicated that it was enclosing the April 19, 2018 report from Dr. Reznik.
On August 27, 2018 counsel advised that OWCP had not included a copy of Dr. Reznik’s
April 19, 2018 report with the notice of proposed termination. In response, on August 28, 2018,
OWCP resent the notice of proposed termination of compensation with a copy of the report from
the impartial medical examiner (IME). It afforded appellant an additional 30 days to submit
evidence or argument in response to the proposed termination.

3

Thereafter, OWCP received August 8, October 10, and December 12, 2018 progress
reports from Dr. Lifschutz providing the same diagnoses, causation findings, and disability
determinations as in his prior reports.
By decision dated February 25, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective February 26, 2019. It found that the opinion of
Dr. Reznik, the IME, represented the special weight of the evidence and established that he had no
further residuals or disability due to his accepted employment injury.
Subsequently, appellant submitted a progress report from Dr. Lifschutz dated
February 20, 2019.
In a report dated March 27, 2019, Dr. Lifschutz advised that appellant’s September 22,
2008 employment injury had resulted in an exacerbation of his low back pain and chronic low
back pain. He described his treatment of appellant beginning February 10, 2009 and his current
complaints of chronic low back pain with intermittent radiculopathy primarily into the left lower
extremity and pain in the left more than the right buttocks. Dr. Lifschutz indicated that a thoracic
spine MRI scan, obtained on January 31, 2019, had revealed diffuse disc bulges at T10-11 and
T12-L1 with central canal stenosis, diffuse disc bulges with bilateral foraminal stenosis at L1-2,
L2-3, and particularly at L5-S1, mild central canal stenosis at L1-2, and marked central canal
stenosis at L2-3. He noted that appellant was status post laminectomy at L3 through L5,
discectomy on the left at L4-5, and posterolateral fusion at L3 through L5. On examination
Dr. Lifschutz found tenderness on palpation of the paraspinal/left gluteal muscles. He diagnosed
lumbosacral dorsopathy with an axial component/facet syndrome, chronic myofascial pain with a
left radicular component, evidence of left L4-5 radiculopathy, and disc pathology at multiple levels
with nerve root impingement. Dr. Lifschutz attributed the diagnosed conditions to the
September 22, 2008 employment injury and found that appellant was totally disabled from work.
On June 8, 2019 appellant, through counsel, requested reconsideration. Counsel contended
that the March 27, 2019 report from Dr. Lifschutz established that appellant remained disabled
due to his accepted employment injury.
By decision dated October 25, 2019, OWCP denied modification of the February 25, 2019
decision.
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.5 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

5

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

4

the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”8 In situations where
there exist opposing reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of such specialist,
if sufficiently well rationalized and based on a proper factual and medical background must be
given special weight.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective February 26, 2019, as he no longer had residuals or disability causally
related to his accepted September 22, 2008 employment injury.
OWCP properly determined that a conflict in medical opinion existed between appellant’s
attending physician, Dr. Lifschutz, and Dr. Carmickle, an OWCP referral physician, regarding
whether he had continuing employment-related disability or residuals due to his accepted
employment injury. In order to resolve the conflict, it referred him to Dr. Reznik for an impartial
medical examination, pursuant to 5 U.S.C. § 8123(a).
The Board finds that the weight of the evidence is represented by the thorough and wellrationalized opinion of Dr. Reznik, the IME selected to resolve the conflict in medical opinion.10
In her April 19, 2018 report, Dr. Reznik noted that appellant had a history of a previous disc
herniation and surgery. She found full strength on examination with volitional weakness and
subjective findings of a loss of sensation in the left lower extremity and right hand. Dr. Reznik
reported that on examination she had found exaggerated and nonorganic findings. She opined that
appellant could resume his usual employment without restrictions and required no further medical
treatment. Dr. Reznik noted that his neurological examination was normal for his age and that he
had findings of osteoarthritis that were consistent with age and unrelated to his September 22, 2008
employment injury. Her opinion has reliability, probative value, and convincing quality with
respect to whether appellant had further employment-related disability based upon her finding of
an essentially normal physical examination. Dr. Reznik provided a thorough factual and medical
history and accurately summarized the relevant medical evidence.11 She provided rationale for
her opinion by explaining that appellant’s findings on examination were within normal limits for
6

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

7

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

8

5 U.S.C. § 8123(a); J.K., Docket No. 18-1250 (issued June 25, 2019).

9

20 C.F.R. § 10.321; T.D., Docket No. 17-1011 (issued January 17, 2018).

10

R.P., Docket No. 19-0057 (issued May 16, 2019).

11

M.R., Docket No. 19-0518 (issued September 12, 2019); A.G., Docket No. 19-0113 (issued July 12, 2019).

5

his age and nonemployment-related osteoarthritis. Dr. Reznik reached a reasoned conclusion
regarding appellant’s employment-related disability and need for further medical treatment. Her
opinion thus represents the special weight of the evidence and establishes that he had no further
disability causally related to his September 22, 2008 employment injury.12
The additional evidence submitted prior to OWCP’s termination of appellant’s
compensation is insufficient to overcome the special weight afforded to Dr. Reznik as IME. In
progress reports dated April 19, August 8, October 10, and December 12, 2018, Dr. Lifschutz
diagnosed lumbosacral dorsopathy with an axial component/facet syndrome, chronic myofascial
pain with a left radicular component, evidence of left L4-5 radiculopathy, a disc pathology at
multiple levels with nerve root impingement. He attributed the diagnosed conditions to the
September 22, 2008 employment injury and found that appellant was totally and permanently
disabled from employment. However, Dr. Lifschutz failed to provide rationale for his opinion
regarding the extent of his disability or how the diagnosed conditions were caused or aggravated
by his accepted employment injury.13 Additionally, he was on one side of the conflict regarding
whether appellant had continued employment-related disability or residuals. Reports from a
physician who was on one side of a medical conflict resolved by an IME are generally insufficient
to overcome the special weight accorded to the opinion of the IME or to create a new conflict.14
In a Form CA-20 dated May 24, 2018, Dr. Lifschutz diagnosed a disc herniation and
lumbar radiculopathy, and he found that appellant was totally disabled. He did not, however,
provide an opinion in this report to explain whether appellant had continuing disability causally
related to the employment injury. The Board has held that a mere conclusion without the necessary
rationale as to whether a period of disability is due to an accepted employment injury is
insufficient.15
On appeal counsel asserts that the termination of appellant’s compensation is contrary to
the medical evidence and prevailing law. As discussed, however, OWCP properly found that the
opinion of the IME constituted the special weight of the medical evidence. The Board, therefore,
finds that OWCP properly terminated appellant’s wage-loss compensation and medical benefits
effective February 26, 2019.16
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury.17 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and
12

A.M., Docket No. 18-1243 (issued October 7, 2019). See J.K., supra note 8.

13

See P.L., Docket No. 19-0268 (issued July 9, 2019).

14

D.G., Docket No. 19-1259 (issued January 29, 2020); I.J., 59 ECAB 408 (2008).

15

A.T., Docket No. 19-0410 (issued August 13, 2019); E.L., Docket No. 17-1632 (issued January 3, 2018).

16

See R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006).

17

See S.M., Docket No. 18-0673 (issued January 25, 2019); L.C., Docket No. 18-1759 (issued June 26, 2019).

6

the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship.18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals on or after February 26, 2019 due to his accepted
employment injury.
Subsequent to the termination of his wage-loss compensation, appellant submitted a
progress report from Dr. Lifschutz dated February 20, 2019 containing findings similar to those in
his previously submitted progress reports. He also submitted a March 27, 2019 report from
Dr. Lifschutz, who discussed his history of a September 22, 2008 employment injury and his
continued symptoms of low back pain with radiculopathy mostly in the left lower extremity and
left more than right buttocks. Dr. Lifschutz diagnosed lumbosacral dorsopathy with an axial
component/facet syndrome, chronic myofascial pain with a left radicular component, evidence of
left L4-5 radiculopathy, and disc pathology at multiple levels with nerve root impingement. He
attributed the diagnosed conditions to the September 22, 2008 employment injury. Dr. Lifschutz
found that appellant was totally disabled from work. He did not, however, provide rationale for
his causation finding and disability determination and thus his opinion is of little probative value.19
Further, as discussed, the Board has long held that reports from a physician who was on one side
of a medical conflict resolved by an IME are generally insufficient to overcome the special weight
accorded to the report of the IME or to create a new conflict.20 The Board finds that as
Dr. Lifschutz was on one side of the conflict resolved by Dr. Reznik, his additional reports are of
insufficient weight to overcome the special weight accorded to the IME or to create a new medical
conflict.21 The Board thus finds that appellant has not established continuing residuals or disability
after February 29, 2019.22
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 appellant’s wage-loss compensation and
medical benefits effective February 26, 2019 as he no longer had residuals or disability causally
related to his accepted September 22, 2008 employment injury. The Board further finds that he
18

Id.

19
A.T., Docket No. 20-0334 (issued October 8, 2020) (a medical report is of limited probative value on a given
medical issue if it contains a medical opinion which is unsupported by medical rationale).
20

See R.B., Docket No. 16-1481 (issued May 2, 2017).

21

See G.T., Docket No. 17-1959 (issued June 22, 2018); D.G., Docket No. 17-0608 (issued March 19, 2018).

22

See A.M., Docket No. 17-1192 (issued September 19, 2018).

7

has not met his burden of proof to establish continuing employment-related disability or residuals
on or after April 29, 2018 due to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2020
Washington, DC

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

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

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Jeffrey F. Pam, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2469
Issued: July 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 15, 2008 appellant filed a timely appeal from a September 4, 2008 merit
decision of the Office of Workers’ Compensation Programs terminating medical benefits for
treatment of his lumbar spine condition. 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 the Office properly terminated appellant’s medical benefits for his
lumbar spine condition effective September 4, 2008.
FACTUAL HISTORY
This is the second time this case has come before the Board. In the prior appeal, the
Board, by decision dated October 21, 2002, after finding a conflict in the medical opinion
evidence of record as to whether appellant sustained an injury as a result of an employment
incident on September 28, 1995, set aside the November 13, 2000 and July 23, 2001 decisions of

the Office and remanded the case for further development and proceedings.1 The findings of fact
and the conclusions of law from the prior decisions are hereby incorporated by reference.
Following the Board’s October 21, 2002 decision, the Office further developed
appellant’s claim, which included examination by Dr. Donald I. Goldman, an orthopedic surgeon
and the Office’s referee physician. Dr. Goldman concluded that appellant’s original accepted
condition,2 head contusion, had resolved and was not causing disabling residuals. He noted that
there was a preexisting discogenic spondylosis of the cervical spine that was aggravated by his
September 28, 1995 employment-related injury.
Based on Dr. Goldman’s opinion, the Office, by decision dated January 7, 2003,
expanded appellant’s accepted condition from contusion of the head to include disc herniations
at C4-5 and C6-7 as well as permanent aggravation of preexisting discogenic spondylosis.
Appellant underwent medical treatment. By note dated March 25, 2003, Dr. Baburao
Doddapaneni, a Board-certified anesthesiologist, prescribed a hydroculator pad for the lumbar
spine. By letter dated March 28, 2003, the Office authorized payment for a hydroculator pad for
the lumbar spine.
In a medical note dated December 15, 2005, Dr. Gregory Perrier, an orthopedic surgeon,
prescribed a lumbar corset brace.
The record includes unsigned medical reports from Fayetteville Pain Center for the
period July 2009 to July 2008. The treatment recommended, bilateral lumbar transforaminal
injections, was authorized and paid by the Office.
By decision dated August 30, 2006, the Office proposed to terminate appellant’s medical
benefits for the lumbar spine because it found that he received medical benefits for treatment of
his lumbar spine, a condition that the Office had not accepted. It found that his lumbar spine
condition, based upon the evidence of record, was not due to his accepted injury and that
payment for such expenses was erroneously authorized. Therefore, the Office proposed to
terminate appellant’s medical benefits for his lumbar spine condition as it was not compensable.
By letter dated August 7, 2008, the Office advised appellant that the evidence of record
was insufficient to establish that his lumbar condition was due to his accepted injury. It notified
him that it would defer issuing a final decision concerning termination of his medical benefits,
allowing appellant a chance to respond.
Appellant disagreed and submitted a computerized bill status report, dated July 31, 2008,
showing that the Office paid for his epidural injection treatments of July 8, 2006. The report
proffered a diagnosis of lumbosacral neuritis. Appellant submitted an incomplete traumatic
injury claim (Form CA-1) as well as a personal note dated August 25, 2008.
1

Docket No. 02-266 (issued October 21, 2002).

2

Appellant’s claim was also accepted for: brain stem contusion without open wound; displacement of the
cervical intervertebral disc without myelopathy; and cervical spondylosis with myelopathy.

2

Appellant submitted a report from Fayetteville Pain Center dated January 25, 2008. The
first line of the report stated that the report had not been signed and might be incomplete.
Moreover, this report bore a stamp stating that it had not been reviewed by a physician.
Appellant submitted a duplicate copy of a December 5, 2002 work capacity evaluation
signed by Dr. Goldman, who asserted that appellant sustained a cervical disc herniation as well
as cervical discogenic, spondylosis and aggravated trauma. Dr. Goldman reported that he
sustained low back pain that radiated down into his legs. He asserted that appellant was unable
to work.
Appellant submitted copies of personal statements alleging harassment and racial
discrimination on the part of the employing establishment. These statements were attachments to
a complaint filed with the Equal Employment Opportunity Commission that was not part of the
record.
By decision dated September 4, 2008, the Office terminated appellant’s claim for medical
benefits for his lumbar spine condition effective September 4, 2008.3
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4
ANALYSIS
The Office accepted appellant’s September 28, 1995 employment injury for: brain stem
contusion without open wound; displacement of the cervical intervertebral disc without
myelopathy; cervical spondylosis with myelopathy, disc herniations at C4-5 and C6-7 as well as
permanent aggravation of preexisting cervical discogenic spondylosis. It, therefore, has the
burden to justify the termination of compensation for those accepted conditions. The Office
must establish that appellant no longer has residuals of any employment-related condition, which
require further medical treatment related to the September 28, 1995 employment injury before
terminating medical benefits for the accepted conditions.
This burden of proof, however, does not extend to terminating medical benefits
pertaining to appellant’s lumbar spine because the Office has not accepted that his September 28,

3

On appeal, appellant submitted additional medical evidence consisting of a work capacity evaluation dated
August 18, 2008 signed by a physician whose signature is illegible. The Board may not consider evidence for the
first time on appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R.
§ 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction
is limited to reviewing the evidence that was before the Office at the time of its final decision). As this work
capacity evaluation was not part of the record when the Office issued either of its previous decisions, the Board may
not consider it for the first time as part of appellant’s appeal.
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Anna M. Blaine, 26 ECAB 351, 353-54
(1975); see Fred Foster, 1 ECAB 127, 132-33 (1948).

3

1995 employment injury caused or aggravated a lumbar condition.5 It did authorize medical
treatment, consisting of a hydroculator pad for his lumbar spine and multiple foraminal epidural
injections in appellant’s lumbar spine, but it never adjudicated whether the medical evidence
established that the September 28, 1995 incident at work caused or aggravated a lumbar spine
condition. The Board has consistently held that gratuitous payment of compensation6 by the
Office does not, in and of itself, constitute acceptance of a particular condition or disability in the
absence of evidence from the Office indicating that a particular condition or disability has been
accepted as work related.7 In Sophia Maxim (Edward Gerard Maxim),8 the Board stated:
“It is axiomatic that the [Office] has no obligation to provide surgery, medical
appliances and services for a condition not related to the employment....
Gratuitous authorizations of periodic examinations ... emergency surgery and
follow-up care do not constitute an acceptance that the condition for which such
services were extended was causally related to the employment.... Nor does
authorization of such medical services for a condition found to be unrelated to the
employment create a liability on the [Office] to furnish further benefits either by
way of medical care or by way of payment of compensation to the employee or
his beneficiaries in the event of his death due to the condition for which he
received gratuitous treatment. Causal relation must be established in each case
for the employee or his beneficiary to be eligible to receive compensation
benefits, medical or monetary.”9
Thus, the Office’s gratuitous and erroneous payment for treatment, equipment and procedures
pertaining to appellant’s lumbar spine, in and of itself, is not sufficient to establish his alleged
lumbar condition is causally related to the September 28, 1995 employment injury.

5

Appellant argues that the Office should have accepted something more than contusion and a cervical spine
condition. If he wants the Office to formally accept that the September 28, 1995 incident at work caused or
aggravated a lumbar spine condition, he has the burden to submit a medical opinion firmly establishing that
diagnosis. The care with which the physician presents his medical rationale will be critical to establishing the
element of causal relationship. See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (discussing the factors
that bear on the probative value of medical opinions).
6

5 U.S.C. § 8101(12) defines “compensation” as including: “the money allowance payable to an employee or his
dependents and any other benefits paid for from the Employee’s Compensation Fund....” Therefore, compensation
includes not only money paid for work-related disability but also includes payments for medical expenses.
7

See Gary L. Whitmore, 43 ECAB 441 (1992); James F. Aue, 25 ECAB 151 (1974).

8

10 ECAB 61, 68 (1958).

9

Id. See also Helen B. Plouse (Harry H. Plouse), 20 ECAB 111, 114 (1968) (where the Board found that the fact
that the Office paid medical expenses for nonwork-related conditions did not “create a liability on its part to furnish
further benefits either by way of medical care or compensation”).

4

Where an employee claims that, a condition not accepted or approved by the Office was
due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury.10 Regarding whether appellant has any lumbar
condition causally related to his accepted condition, the Office correctly found that he failed to
submit probative medical evidence explaining how the alleged lumbar condition was causally
related to the September 28, 1995 work injury. As part of this burden, the employee must submit
rationalized medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the current condition is causally related to the
accepted employment-related condition11 and supports that conclusion with sound medical
reasoning.12
Therefore, the Board finds that the Office properly terminated appellant’s medical
benefits for lumbar spine, a condition that was never accepted, because he had not satisfied his
burden to establish causal relationship.
The medical evidence appellant submitted regarding his lumbar condition consisted of
unsigned medical reports from the Fayetteville Pain Center. These reports bore a stamp
indicating that they had not been reviewed by a physician and many of them contained an
opening line stating that they were not signed and may be incomplete. An unsigned report has
no probative medical value as the author cannot be identified as a physician.13 Moreover,
unsigned medical reports lacking a physician’s medical opinion concerning causal relationship
between a diagnosed condition and appellant’s accepted employment-related injury are of less
than no probative value.14
As appellant has submitted no competent and probative rationalized medical evidence in
support of his claim that treatment of his lumbar spine is causally related to his September 28,
1995 employment injury,15 he has failed to demonstrate that the termination of medical benefits
on September 4, 2008 was not justified.

10

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). 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.
11

Kevin J. McGrath, 42 ECAB 109, 116 (1990).

12

Lourdes Davila, 45 ECAB 139, 142 (1993).

13

Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

14

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value). Franklin D. Haislah, 52 ECAB 457 (2001); see also Jimmie H. Duckett,
52 ECAB 332 (2001).
15

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s self-serving declarations do not, in the opinion of
the Board, constitute evidence of a sufficiently substantial nature).

5

CONCLUSION
The Board finds that the Office properly terminated appellant’s medical benefits for
lumbar spine effective September 4, 2008.
ORDER
IT IS HEREBY ORDERED THAT the September 4, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6