United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, San Juan, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2328
Issued: June 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 20, 2010 appellant filed a timely appeal from an August 20, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on May 24, 2010.
FACTUAL HISTORY
On May 26, 2010 appellant, then a 39-year-old crew leader assistant, filed a traumatic
injury claim alleging that she sustained bilateral knee and left hand injuries on May 24, 2010
when she stumbled on a piece of wood and fell while on duty. She stopped work on

1

5 U.S.C. § 8101 et seq.

May 27, 2010 and returned to work on July 14, 2010. A blank duty status report was received
with the claim.
The Office informed appellant in a July 14, 2010 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit medical reports describing the
history of injury, examination results, diagnosis and course of treatment and offering a
physician’s reasoned opinion as to how the purported work incident caused or aggravated the
injury.2
A June 7, 2010 attending physician’s report from Dr. Edwin I. Lugo Lugo, an orthopedic
surgeon, noted that appellant had an unspecified knee sprain on May 24, 2010. A subsequent
July 7, 2010 attending physician’s report from Dr. Lugo Lugo clarified that appellant fell on
May 24, 2010, sustained trauma to the knees and the fifth digit of the right hand and would be
able to return to light duty on July 8, 2010. In both reports, he checked the “yes” box in response
to a form question asking whether her condition was employment related, but did not provide
any explanation. Dr. Lugo Lugo indicated in a June 7, 2010 work capacity evaluation form that
appellant was unable to perform her usual job duties and had not reached maximum medical
improvement.3
X-ray reports dated June 4, 2010 from Dr. Frank Kolodziej, a radiologist, revealed no
physical abnormalities of the bilateral knees and left hand.4 In June 15, 2010 magnetic
resonance imaging (MRI) scan reports from Dr. Kolodziej, appellant exhibited a lateral femoral
condyle contusion of the left knee and medial meniscal tearing of the right knee.
By decision dated August 20, 2010, the Office denied appellant’s claim, finding the
medical evidence insufficient to demonstrate that her May 24, 2010 fall caused bilateral knee and
left hand injuries.
LEGAL PRECEDENT
An employee seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,5
including that she is an “employee” within the meaning of the Act and that she filed her claim
within the applicable time limitation.6 The employee must also establish that she sustained an

2

The Office noted that appellant’s claim was not fully processed as it was received as a simple and
uncontroverted case resulting in minimal or no time lost from work and payment was approved for limited medical
expenses without formal adjudication.
3

The Board points out that each of Dr. Lugo Lugo’s records contained significant sections of illegible
handwriting.
4

A June 4, 2010 x-ray of appellant’s right hand showed degenerative changes of the distal interphalangeal joint
of the fifth digit.
5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

6

R.C., 59 ECAB 427 (2008).

2

injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.7
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 evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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.9
ANALYSIS
The evidence supports that appellant stumbled on a piece of wood and fell on
May 24, 2010. However, she did not furnish sufficient medical evidence showing that this work
incident caused or contributed to bilateral knee and left hand injuries.
Dr. Lugo Lugo remarked in a June 7, 2010 report that appellant sprained her knee on
May 24, 2010. He later added in a July 7, 2010 report that appellant fell on May 24, 2010 and
injured her knees and right hand. Although Dr. Lugo Lugo correctly noted the date and
mechanism of the injury, he failed to provide medical rationale explaining how stumbling on a
piece of wood and falling pathophysiologically caused appellant’s condition.10 While he twice
supplied affirmative checkbox responses to a form report question asking whether appellant’s
condition was employment related, such responses without further explanation or rationale were
of diminished probative value.11 Dr. Lugo Lugo’s June 7, 2010 work capacity evaluation form
did not address the cause of appellant’s condition. Likewise, Dr. Kolodziej’s diagnostic reports
are of limited probative value as they offered no opinion regarding the cause of appellant’s
injuries.12 These reports are insufficient to establish appellant’s claim.
7

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

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

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

11

See Alberta S. Williamson, 47 ECAB 569 (1996) (an opinion on causal relationship which consists only of a
physician checking “yes” on a medical form report without further explanation or rationale is of little probative
value).
12

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

3

Appellant has not submitted a medical report in which a physician explains the reasons
why the May 24, 2010 incident caused or aggravated a knee or left hand condition. In the
absence of well-reasoned medical opinion explaining the causal relationship between the
May 24, 2010 incident and her bilateral knee and left hand condition, appellant failed to meet her
burden.13
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on May 24, 2010.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

The Board notes that appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal. 20 C.F.R. § 501.2(c). This, however, does not preclude appellant from having
such evidence considered by the Office as part of a formal written request for reconsideration pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.606.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CALVERTON NATIONAL CEMETERY,
Calverton, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 21-0918
Issued: December 9, 2021

Case Submitted on the Record

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

On May 17, 2021 appellant filed a timely appeal from a January 27, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0918.
The issues on appeal before the Board relate to OWCP’s January 27, 2021 decision, finding
an overpayment of wage-loss compensation in the amount of $12,497.97 for the period June 1,
2016 through August 15, 2020 for which appellant was without fault due to his alleged concurrent
receipt of Federal Employees’ Compensation Act1 (FECA) wage-loss compensation and Social
Security Administration (SSA) age-related retirement benefits without an appropriate offset.
OWCP also denied waiver of recovery of the overpayment and required repayment of the
overpayment by deducting $215.00 from his continuing compensation payments every 28 days.

1

5 U.S.C. § 8101 et seq.

The Board finds that OWCP failed to properly develop the underlying issue of whether
appellant’s SSA age-related retirement benefits were attributable to federal employment. 2
OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the Federal Employees Retirement System (FERS)/FECA offset amount. Since the
SSA will not report an offset amount until after SSA benefits are received, an overpayment will
almost always occur and will need to be calculated for each period in which the offset amount was
not withheld from compensation.3 The offset provision of 5 U.S.C. § 8116(d)(2) and applicable
regulations apply to SSA age-related retirement benefits that are attributable to federal service.4
FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the FERS portion
of SSA age-related retirement benefits because the portion of the SSA benefit earned as a federal
employee is part of the FERS retirement package, and the concurrent receipt of FECA benefits
and federal retirement is a prohibited dual benefit. 5 In identifying the fact and amount of
overpayment of compensation following a claimant’s receipt of SSA age-related retirement
benefits, the Board has observed that OWCP uses a FERS offset calculation worksheet. 6 This
calculation worksheet is sent to SSA and the completed form is returned to OWCP setting forth
purported SSA calculations as to the effective date and rate of SSA benefits without FERS and the
effective date and rate of SSA benefits with FERS. 7 Following receipt of the purported SSA
calculations, a preliminary determination of overpayment is issued if a prohibited dual benefit was
received.8
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the Civil Service
Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal
retirement program. Therefore, OWCP’s procedures with regard to requesting offset information
are not applicable to all recipients of FECA compensation and SSA age -related retirement
benefits.9

2

See P.R., Docket No. 20-0851 (issued January 29, 2021); see also L.A., Docket No. 20-0949 (issued
December 2, 2020).
3

Federal (FECA) Procedure Manual, Part 6 - Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1(h) (September 2020).
4

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

5

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

6

Id.

7

Id.

8

Id.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter 2.812.9c
(May 2012).

2

The information solicited on the FERS offset calculation worksheet that OWCP sends to
SSA is not applicable to non-FERS claimants and does not establish either the fact or amount of
an overpayment. 10
OWCP accepted that on April 22, 1993 appellant, then a 40-year-old cemetery caretaker,
sustained cervical spondylosis, cervical disc disorder with radiculopathy, a right acromioclavicular
joint sprain, and a right rotator tear moving a headstone while in the performance of duty. 11 In a
claim for compensation (Form CA-7) dated January 26, 1994, the employing establishment
indicated that his total length of federal civilian service was 10 years and 4 months. Appellant,
thus, began his federal civilian service prior to January 1, 1987, the effective date of FERS. 12 The
record fails to indicate that he converted his retirement coverage from CSRS to FERS. 13
As noted, an offset is not required if the employee is covered under CSRS rather than
FERS. If OWCP cannot determine what retirement system the claimant is under, it should send a
letter to both the claimant and Office of Personnel Management (OPM) requesting pertinent
information. 14
The Board finds that, in light of appellant’s pre-1987 federal employment history, the
evidence does not establish that he was covered under FERS or receiv ed a prohibited dual benefit.15
OWCP did not sufficiently investigate whether appellant was covered under either CSRS or CSRS
Interim/Offset, 16 or FERS.17
Given the lack of definitive information regarding appellant’s retirement coverage, the case
must be remanded to OWCP for further development. On remand OWCP should consult with
OPM regarding appellant’s retirement coverage. To the extent that appellant’s monthly SSA agerelated retirement benefits were based in part on his FERS-based federal service, OWCP should
also obtain a complete earnings history and benefits payment history from SSA prior to issuing
another preliminary and/or final overpayment determination.

10

See P.C. (R.C), Order Reversing Case, Docket No. 20-1546 (issued May 4, 2021).

11

The traumatic injury claim form (Form CA-1) is not contained in the case record.

12

5 U.S.C. § 8402(b)(2)(B); see also A.S., Docket No. 17-1459 (issued December 22, 2017).

13

See id. at § 8402.

14

Supra note 9 at Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.812.9c (May 2012).

15

See A.S., supra note 12; G.W., Docket No. 09-1211 (issued January 6, 2010).

16

CSRS Interim/Offset was a precursor to FERS that required contributions to both CSRS and Social Security’s
Old-Age, Survivors, and Disability Insurance (OASDI). It generally applied to certain new hires or former CSRScovered employees who had been separated from service for at least one year and rehired after December 31, 1983.
17

The record does not include a Standard Form (SF)-50 (Notification of Personnel Action) indicating whether
appellant was covered under CSRS, CSRS Offset, or FERS.

3

IT IS HEREBY ORDERED THAT the January 27, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 9, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREIGN AGRICULTURAL SERVICE,
Camp Echo, Diwaniyah, Iraq, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1771
Issued: January 23, 2018

Case Submitted on the Record

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

JURISDICTION
On September 1, 2016 appellant, through counsel, filed a timely appeal from a July 15,
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 claim.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that the record includes additional evidence received after OWCP issued its July 15, 2016
decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability on or after June 18, 2011, causally related to his December 27, 2010 employment
injury.
FACTUAL HISTORY
On January 4, 2011 appellant, then a 53-year-old agricultural adviser, filed a traumatic
injury claim (Form CA-1) alleging that, during training on December 27, 2010, he struck his
forehead on an armored Humvee door. As a result of the impact, he cut his forehead and fell
onto his left shoulder and back. Appellant sought immediate medical treatment and indicated he
received nine stiches to close the gash on his forehead. He returned to work on December 28,
2010 in a full-time, light-duty capacity. Appellant worked in that capacity until June 18, 2011,
when he stopped work completely. On September 20, 2011 OWCP accepted the claim for an
open scalp wound without complications. In December 2011, it expanded the claim to include
open dislocation 5th cervical vertebra and closed dislocation 6th cervical vertebra.
On October 24, 2013 appellant filed a notice of recurrence (Form CA-2a) for lost wages
beginning June 18, 2011. He stated that he returned to light-duty work with limited computer
usage after the injury and that this light-duty work continued until the end of his tour as an
agricultural adviser in Iraq. It was appellant’s responsibility to complete his projects which were
planned before the accident. He indicated that the pain never went away and that the current
pain to his neck, upper left arm, and back were worse than his original injury. Appellant
submitted multiple medical reports and records from 2011 through 2013, previously of record,
which contained several references to appellant’s back and neck pain, along with several requests
for surgical authorization.
In an April 2, 2014 letter, OWCP informed appellant that the evidence of record failed to
support that his work stoppage was due to a spontaneous change/worsening of his accepted
conditions. Appellant was afforded 30 days to provide additional factual and medical evidence
to support his claimed recurrence of disability. OWCP additionally noted that his tour as an
agricultural adviser ended on June 18, 2011, the date of the alleged recurrence, and that he was
working in a limited-duty capacity. It indicated that it appeared that appellant was claiming a
return/increase in disability due to the withdrawal of his light-duty assignment made specifically
to accommodate his work-related condition following his original injury, but noted that he did
not submit any supporting documentation.
Appellant subsequently submitted multiple requests for authorization for medical
treatment and diagnostic testing, claims for compensation (Form CA-7) for leave without pay
from June 18, 2011 onwards, and requests for information regarding unemployment benefits.
Appellant also submitted medical evidence from Dr. Matthew J. Espenshade, an
orthopedic surgeon, dated October 16, 2013 through September 17, 2014. In his October 16,
2013 report, Dr. Espenshade noted that he had been treating appellant since August 10, 2011 for
his December 27, 2010 work injury when he struck his arm and forehead on a Humvee door. He
had a large laceration that was repaired and his neck was also injured. Dr. Espenshade noted

2

appellant’s medical course of treatment and diagnosed, as part of the injury, cervical spinal
stenosis, brachial neuritis/radiculitis, cervical intervertebral disc displacement without
myelopathy, and cervical degenerative disc disease. Cervical surgery was recommended. In an
April 8, 2014 report, Dr. Espenshade indicated that appellant’s spinal stenosis, brachial
neuritis/radiculitis, cervical disc displacement without myelopathy, and degenerative disc disease
were all related to his neck injury in Iraq.
In an April 21, 2014 report, Dr. Sandra Fowler, a family practitioner, indicated that
appellant had persistent left shoulder pain from a “2011” work-related injury and had been
restricted to light-duty work by Dr. Espenshade. She noted that appellant had neck pain and
significant weakness on his left side with some neurological changes. Dr. Fowler’s assessment
included left shoulder pain, neck pain, and radiculopathy, and it also noted that, according to
Dr. Espenshade’s records, appellant had C5-6 nerve damage.
OWCP subsequently received medical evidence from Dr. Jeffrey Finn, a physiatrist,
dated September 3, 2014 through February 25, 2015. In his September 3, 2014 report, Dr. Finn
indicated that appellant had chronic neck pain and chronic or recurrent left cervical radicular
symptoms. He also has known stenosis and protrusion of a disc to the left at C5-6. Diagnoses of
cervicalgia, cervical disc herniation, and recurrent cervical radiculopathy were provided. On
September 17, 2014 and February 25, 2015 Dr. Finn provided cervical epidural steroid
injections. In an April 29, 2015 report, he reported appellant’s responses with the epidural
steroid injections. Dr. Finn diagnosed cervicalgia, radiculopathy, cervical spondylosis,
degenerative disc disease, and foraminal stenosis.
Appellant also provided medical evidence from Dr. Peter M. Brier, an internist, dated
February 16 through June 17, 2015. In his February 16, 2015 report, Dr. Brier diagnosed
cervical syndromes, not elsewhere classified, which he opined may be related to appellant’s
service in Iraq. He also diagnosed chronic pain syndrome and long-term use of medications. In
a June 17, 2015 report, Dr. Brier noted that appellant’s pain had worsened and that he remained
totally disabled from work. An assessment was made of cervical syndromes not elsewhere
classified, chronic pain syndrome, and shoulder disorders.
In a November 20, 2014 letter, T.J., an employing establishment program manager,
indicated that appellant was employed under a schedule B hiring authority position when he was
injured. She indicated that he was not separated from the employing establishment because of
his injury, rather his position ended.
By decision dated September 29, 2015, OWCP denied appellant’s claim for a recurrence
of disability beginning June 18, 2011. It found that he had not established that he was disabled
from work due to a material change/worsening of his accepted work-related conditions.
On April 18, 2016 appellant, through counsel, requested reconsideration. An April 29,
2016 cervical spine x-ray and an April 29, 2016 cervical magnetic resonance imaging (MRI)
scan were received.
In support of the reconsideration request, appellant submitted medical reports from
Dr. John P. Kelleher, a neurosurgeon, dated March 31, April 29, and May 27, 2016. In his

3

May 27, 2016 final report, Dr. Kelleher indicated that on December 27, 2010 appellant was
assisting in military training overseas in Iraq and was hit in the head during a drill. Since then,
appellant had developed increased left-sided neck pain with radiation to the left shoulder. He
also complained of pain in his biceps area and numbness on his left hand. X-rays of the cervical
spine showed degenerative disease throughout the cervical spine and a cervical spine MRI scan
showed degenerative disease, worse at the C5-6 area with moderate central and bilateral
foraminal stenosis. A prior electromyography (EMG) showed chronic C6 radiculopathy.
Dr. Kelleher recommended a cervical discectomy and fusion.
Appellant submitted medical reports from Dr. Brier dated February 23, March 23, June 7,
and September 23, 2016. In a March 23, 2016 letter, Dr. Brier noted the history of the
December 27, 2010 work injury. He indicated that appellant had suffered a severe whiplash
injury and that it was typical of such an injury for pain and stiffness to develop in the neck and
left shoulder. Dr. Brier opined that the pain occurred as a direct result of his injury and became
chronic. He noted that the objective testing documented nerve damage and disc disease in his
neck. Dr. Brier indicated that, while appellant has spondylosis in his neck, which was a
byproduct of arthritis, appellant never had any symptoms prior to the accident. He opined that
appellant was disabled and unable to work due to this problem. Dr. Brier also noted appellant’s
medical course and opined that the documented nerve damage at the C5-6 level with
radiculopathy was directly related to the accident that occurred on December 27, 2010. He
explained that appellant’s pain and problems were consistent with severe whiplash injury and
had caused nerve damage related to disc disease and spondylosis which were preexisting, but
asymptomatic. In his June 7, 2016 report, Dr. Brier diagnosed other specified dorsopathies,
cervical region; headache; chronic pain syndrome; and nicotine dependence, unspecified, in
remission. He indicated that appellant had cervical myelopathy secondary to cervical
spondylosis and may need surgery. Dr. Brier opined that appellant was unable to work because
of pain and disability. He further opined that appellant’s conditions were secondary to the
accident he had while training for work in Iraq.
Medical reports from Dr. Finn dated September 23, November 3, 10, and 18, 2015,
February 24, and May 25, 2016 were received by OWCP. Dr. Finn provided cervical epidural
steroid injections. He noted that appellant had a history of an injury at work and diagnosed
cervicalgia; cervical herniated nucleus pulposus and degenerative disc disease with disc
osteophyte complex; cervical radiculitis, left side; and left shoulder pain.
By decision dated July 15, 2016, OWCP denied modification of its September 29, 2015
decision. It found that appellant was working full-time, limited duty in a temporary appointment
on the date the temporary appointment was terminated and that termination of a temporary
appointment was not considered a recurrence of disability under FECA. Based on the medical
reports from Drs. Espenshade, Finn, Brier, and Kelleher, it indicated that appellant would be
referred to a second opinion physician to determine if the additional conditions noted were
causally related to the accepted work-related injury of December 27, 2010.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous

4

injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4 Recurrence of disability 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 his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5 Generally, a withdrawal of a light-duty assignment would constitute a recurrence of
disability where the evidence established continuing injury-related disability for regular duty.6 A
recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of
misconduct, nonperformance of job duties or other downsizing or where a loss of wage-earning
capacity determination is in place.7
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.8
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.9 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes that the condition is causally related to the employment
injury.10 The physician’s opinion must be based on a complete and accurate factual and medical
history and supported by sound medical reasoning.11
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.12
ANALYSIS
On December 27, 2010 appellant struck his forehead on an armored Humvee door.
OWCP initially accepted the claim for an open scalp wound without complications, but later
4

20 C.F.R. § 10.5(x).

5

Id.

6

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

7

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.2b.
8

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

9

20 C.F.R. § 10.104(b); see supra note 6 at Chapter 2.1500.5 and 2.1500.6.

10

See S.S., 59 ECAB 315, 318-19 (2008).

11

Id. at 319.

12

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

5

expanded the claim to include open dislocation 5th cervical vertebra and closed dislocation 6th
cervical vertebra as accepted conditions. Following the December 27, 2010 employment
incident, appellant worked full-time, light duty until his temporary assignment expired on
June 18, 2011. Several years later he filed a recurrence claim (Form CA-2a) for lost wages
dating back to June 18, 2011. The issue is whether appellant has established a recurrence of
disability on or after June 18, 2011 causally related to his accepted December 27, 2010 work
injury.
Appellant has not alleged a change in the nature and extent of his light-duty job
requirements as he worked until his temporary position expired on June 18, 2011.13 Although
withdrawal of a light-duty position may establish a recurrence of disability, the termination of a
temporary appointment, when the employee was a temporary employee at the time of injury,
does not in itself establish a recurrence of disability.14 Appellant must therefore provide medical
evidence to establish that he was disabled for the light-duty position.15
As noted, OWCP accepted the claim for open scalp wound without complications, open
dislocation 5th cervical vertebra, and closed dislocation 6th cervical vertebra. There is no medical
evidence indicating that appellant’s accepted scalp wound precluded him for working on or after
June 18, 2011. Appellant sought treatment from several physicians regarding his neck and arm
conditions. However, none of his physicians have provided the necessary rationale as to why
appellant was able to work until June 18, 2011, and how his increased disability and/or accepted
conditions had materially worsened, without intervening cause, due to the December 27, 2010
work injury.
In his October 16, 2013 and April 8, 2014 reports, Dr. Espenshade noted the history of
the work injury and recommended cervical surgery. While he opined that appellant’s conditions
of spinal stenosis of the cervical spine; brachial neuritis or radiculitis; displacement cervical
intervertebral disc without myelopathy; and cervical degenerative disc disease were causally
related to his accepted work injury. However, Dr. Espenshade did not provide any opinion that
appellant was disabled as a result of his December 27, 2010 work injury. As his reports contain
no rationale explaining why appellant was disabled beginning June 18, 2011, Dr. Espenshade’s
opinion is insufficient to support that appellant sustained a worsening of his work-related
condition.16
Medical reports from Dr. Fowler were also submitted in support of appellant’s claim for
recurrence of disability. In an April 21, 2014 report, Dr. Fowler noted that appellant’s left
shoulder pain arose from the workers’ compensation injury from “2011.” She did not provide
any opinion that appellant was totally disabled. Rather, Dr. Fowler merely reported that he was
13
The records indicate that appellant was in a scheduled B hiring authority position and his position ended on
June 18, 2011.
14

See supra note 6 at Chapter 2.1500.3(c)(1) (June 2013); see also Shelly A. Paolinetti, 52 ECAB 291 (2001).

15

See Jackie D. West, 54 ECAB 158 (2002).

16
See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting
causal relationship generally do not discharge a claimant’s burden of proof).

6

given light duty from Dr. Espenshade. She also failed to provide an opinion of whether he
sustained a recurrence of disability. Although Dr. Fowler noted that appellant’s left shoulder
pain arose from the work injury, an increase in pain alone does not constitute objective evidence
of disability.17 As she failed to attribute any disability to appellant’s work injury or explain how
his employment-related condition changed such that he was unable to work, her reports are
insufficient to meet his burden of proof.18
Dr. Finn’s medical reports were also provided in support of this claim. His reports,
however, fail to provide an opinion pertaining to appellant’s disability or work restrictions. As
Dr. Finn failed to attribute any disability to appellant’s work injury, or explain how his
employment-related condition changed such that he was unable to work, his reports are
insufficient to meet appellant’s burden of proof.19
Medical notes from Dr. Brier were also provided in support of appellant’s recurrence
claim. In his February 16, 2015 report, Dr. Brier diagnosed cervical syndromes, not elsewhere
classified, which he opined may be related to appellant’s service in Iraq. He also assessed
chronic pain syndrome and shoulder disorders, but no work restrictions were provided. In a
March 23, 2016 letter, Dr. Brier opined that appellant was disabled and unable to work due to
this medical condition. He also opined that the documented nerve damage at the C5-6 level with
radiculopathy was directly related to the accident that occurred December 27, 2010. Dr. Brier
explained that appellant’s pain and problems were consistent with a severe whiplash injury and
had caused nerve damage related to disc disease and spondylosis which were preexisting, but
asymptomatic. Although he generally supported that appellant’s continued symptoms and
disability were a result of his employment injury, Dr. Brier failed to address why appellant’s
complaints and diagnosed conditions were not caused by his preexisting disc disease and
spondylosis.20 A well-rationalized opinion is particularly warranted when there is a history of
preexisting condition.21 Moreover, Dr. Brier did not provide adequate bridging evidence to show
a spontaneous worsening of the accepted conditions. Rather, he correlated in general terms that
appellant’s nonaccepted current conditions were caused by the work-related injury.22 In his
June 7, 2016 report, Dr. Brier diagnosed other specified dorsopathies, cervical region; headache
and chronic pain syndrome and nicotine dependence, unspecified, in remission. He indicated
that appellant had cervical myelopathy secondary to cervical spondylosis and may need surgery.
Dr. Brier opined that appellant was unable to work because of pain and disability and that
appellant’s conditions were secondary to the accident he had while training for work in Iraq.
However, he failed to explain how appellant’s employment-related condition changed such that

17

See supra note 6 at Chapter 2.1500.6.a(2).

18

See K.W., 59 ECAB 271 (2008).

19

Id.

20

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

21

Id.

22

J.H., Docket No. 14-775 (issued July 14, 2014).

7

he was unable to work as of June 18, 2011. Thus, Dr. Brier’s reports are insufficient to meet
appellant’s burden of proof.23
Dr. Kelleher’s notes were also submitted into the record. He noted the history of the
work injury and indicated that appellant had developed increased left-sided neck pain with
radiation to the left shoulder, pain in his biceps area and numbness on his left hand. However,
Dr. Kelleher did not provide an opinion that appellant was totally disabled, nor did he provide an
opinion that appellant had sustained a recurrence of disability. Although he noted that appellant
had developed increased pain, an increase in pain alone does not constitute objective evidence of
disability.24 As Dr. Kelleher failed to attribute any disability to appellant’s work injury or
explain how his employment-related condition changed such that he was unable to work, his
reports are insufficient to meet his burden of proof.25
The remaining medical evidence is also insufficient to establish appellant’s claim for
recurrence of disability. The diagnostic reports of record are insufficient to establish appellant’s
claim as the physicians interpreted diagnostic imaging studies and provided no opinion on
disability or the cause of appellant’s injury.26
On appeal counsel contends that the decision is contrary to fact and law. The Board finds
that because appellant was a temporary employee, he was not entitled to disability compensation
at the time his appointment ended, irrespective of whether he was performing modified duty.27
Appellant worked in his position through June 18, 2011 when the term appointment ended. The
Board has held that, when a claimant stops work for reasons unrelated to the accepted
employment injury, there is no disability within the meaning of FECA.28 A recurrence of
disability also does not include work stoppage caused by the termination of temporary
employment.29 In this case, both the employing establishment and appellant stated that he was a
temporary employee and that his term appointment terminated on June 18, 2011.30 The evidence
of record does not establish that he was off work due to a medical disability.
Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that he was totally disabled on or
23

See supra note 19.

24

See supra note 6 at Chapter 2.1500.6.a(2).

25

See supra note 19.

26

J.P., Docket No. 14-87 (issued March 14, 2014).

27

S.E., Docket No. 15-0888 (issued September 14, 2016), M.S., Docket No. 11-1184 (issued December 12, 2011).

28

Hubert A. Jones, 57 ECAB 467 (2006); John W. Normand, 39 ECAB 1378 (1988).

29
See D.M., Docket No. 11-194 (issued October 5, 2011). An employee generally will not be considered to have
experienced a compensable recurrence of disability as defined in 20 C.F.R. § 10.5(x) merely because his or her
employer has eliminated the employee’s light-duty position in a reduction-in-force or some other form of
downsizing. See 20 C.F.R. § 10.509.
30

E.H., Docket No. 11-1427 (issued May 16, 2012).

8

after June 18, 2011 due to his accepted December 27, 200 work injury. He has failed to establish
by the weight of the reliable, probative, and substantial evidence, a change in the nature and
extent of the injury-related condition resulting in his inability to perform his employment duties
on or after June 18, 2011. As appellant has not submitted sufficient medical evidence showing
that he sustained a recurrence of disability due to his accepted employment injury, the Board
finds that he has not met his burden of proof.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a recurrence
of disability on or after June 18, 2011, causally related to his December 27, 2010 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Auburn, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1860
Issued: January 14, 2009

Case Submitted on the Record

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

JURISDICTION
On June 23, 2008 appellant filed a timely appeal from a May 12, 2008 merit decision of
the Office of Workers’ Compensation Programs denying his traumatic injury 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 sustained an injury on February 6, 2008 in the
performance of duty.
FACTUAL HISTORY
On March 27, 2008 appellant, then 43 years old working in contracting, filed a traumatic
injury claim alleging that on February 6, 2008 he sustained high blood pressure and became
clammy and pale due to factors of his federal employment. He indicated on the claim form that
he was not injured. Appellant stopped work on February 6, 2008 and returned to work on
February 11, 2008. His supervisor disputed that he was injured in the performance of duty. The
supervisor stated that appellant was sitting at his desk when he complained of high blood

pressure. Appellant was pale and clammy. A coworker helped appellant to the ground. In a
witness statement on the claim form, Sally B. Kawakamp related:
“[Appellant] made a comment that he did not feel right. He became very pale,
appeared to have problems breathing and had his hand to his chest. At this point I
went over to him and had him lay down on the floor. I checked his pulse (which
appeared to be fast and uneven) and his skin was clammy to the touch.”
She telephoned for an ambulance.
Appellant received treatment at a hospital on February 6, 2008 for chest pain, a sudden
hot flash and the near loss of consciousness. On admission, he complained of chest tightness
while doing computer work with shortness of breath and sweaty palms. Appellant felt nervous.
A physician diagnosed near syncope, hypertension, stress and anxiety.
By letter dated April 4, 2008, the Office requested additional factual and medical
information, including a detailed medical report addressing the relationship between any
diagnosed condition and his claimed work injury. In an April 10, 2008 response, appellant
related that he had no previous treatment for stress, anxiety or a heart condition. He stated that
he was not injured, on the claim form, because his injury was internal. Appellant stated:
“However, the claim is for the ‘injury’ which occurred to the normal functioning
of my blood pressure, which spiked causing chest pain, tightness [etcetera] (as
shown in the medical paperwork). This certainly did not happen due to too much
vacation. This happened due to work stress. The spiking of the blood pressure is
the injury.”
Appellant resubmitted the hospital reports.
By decision dated May 12, 2008, the Office denied appellant’s claim on the grounds that
he had not substantiated his allegation of work stress and had not established that he sustained an
injury due to stress.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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.2 These are the essential

1

5 U.S.C. §§ 8101-8193.

2

Anthony P. Silva, 55 ECAB 179 (2003).

2

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.3
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether “fact of injury” is established. First, an employee has
the burden of demonstrating the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.5 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.6
ANALYSIS
Appellant filed a claim alleging that he sustained high blood pressure and became pale
and clammy while at work on February 6, 2008. A coworker confirmed that he complained of
high blood pressure and that his skin was clammy and pale. Appellant generally attributed his
condition on February 6, 2008 to work stress. He submitted records from his treatment at a
hospital on that date for near syncope, hypertension, stress and anxiety. The medical evidence
submitted does not address whether appellant’s condition on February 6, 2008 resulted from any
employment factors, including work stress. Consequently, he has not established a prima facie
element of his claim that he experienced a traumatic injury on February 6, 2008. The mere fact
that a condition manifests itself during a period of employment does not raise an inference that
there is a causal relationship between the two.7 As appellant has not submitted any medical
evidence supporting that he sustained a condition on February 6, 2006 due to his employment, he
has not met his burden of proof.8
On appeal, appellant compared his increase in blood pressure to an employee who tripped
and fell at work. He further described his work stress. As discussed, however, appellant must
submit some medical evidence supporting his claim that his federal employment caused or

3

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

4

Delphyne L. Glover, 51 ECAB 146 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

6

Id.

7

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); D.E., 58 ECAB ___ (Docket No. 07-27,
issued April 6, 2007); A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).
8

If appellant submitted medical evidence sufficient for a prima facie case, the Office should further develop the
factual evidence to determine whether he has established any compensable work factors supporting a claim for a
stress-related medical condition.

3

aggravated a stress-related condition. His belief that the condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
February 6, 2008 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 12, 2008 is affirmed.
Issued: January 14, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9

See A.D., supra note 7; D.E., supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cranston, RI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0921
Issued: March 15, 2022

Case Submitted on the Record

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

On May 27, 2021 appellant filed a timely appeal from a January 28, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as Docket No. 21-0921.
On August 24, 2020 appellant, then a 34-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 18, 2020 she sustained shoulder and lower back sprains
when trying to avoid a dog attack while in the performance of duty. She stopped work on
August 18, 2020.
On August 20, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing appellant to seek medical care related to
her back strain. The portion of the form designated as Part B attending physician’s report was
signed on August 20, 2020 by Dr. Alexandra S. Ruggiero, a Board-certified family medicine
physician, who noted appellant’s history of injury and diagnosed a muscle strain. In a duty status
form (Form CA-17) dated August 20, 2020, Dr. Ruggiero diagnosed lumbar and right shoulder
strains due to the claimed August 20, 2020 employment incident.
OWCP subsequently received CA-17 form reports dated August 27 and September 3
and 17, 2020 diagnosing low back muscle sprain/pain/low back pain, and narrative reports dated

August 27 and September 3, 2020 diagnosing acute midline low back pain without sciatica and
acute left-side low back pain without sciatica from Dr. Manoj Garg, an osteopath Board-certified
in family practice. In August 27, 2020 x-ray report, Dr. Christina Pinto, an osteopath Boardcertified in family medicine, diagnosed mild multilevel degenerative disc disease most pronounced
in the lower thoracic and lower lumbar spine. OWCP also received an August 27, 2020 report
from Dr. Mark Mulak, a chiropractor, who diagnosed lower back and thorax muscle and tendon
strains and thoracic and lumbar segmental and somatic dysfunction, which he attributed to the
claimed August 18, 2020 employment incident.
By decision dated October 2, 2020, OWCP denied the claim, finding that appellant failed
to submit any medical evidence diagnosing a medical condition in connection with the accepted
August 24, 2020 employment incident. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
Subsequent to the denial of her claim, OWCP received an October 1, 2020 Form CA-17
from Dr. Garg diagnosing low back and right shoulder strain, and an October 22, 2020 Form
CA-17 which diagnosed lumbar strain from Barbara Burchard, an advanced practice registered
nurse.
On October 23 and November 2, 2020 appellant requested reconsideration. She submitted
a November 4, 2020 report and referral by Ms. Burchard.
By decision dated January 28, 2021, OWCP denied modification. It found that the medical
evidence of record did not include a valid diagnosis from a qualified physician under FECA.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
OWCP denied appellant’s claim finding that the medical evidence of record did not
establish a diagnosed medical condition. It however failed to review the August 20, 2020 Part B
attending physician’s report and August 20, 2020 Form CA-17 report from Dr. Ruggiero. In the
case of William A. Couch,1 the Board held that, when adjudicating a claim, OWCP is obligated to
consider all evidence properly submitted by a claimant and received by OWCP befo re the final
decision is issued. As the Board’s decisions are final as to the subject matter appealed, it is crucial
that all evidence relevant to the subject matter of the claim which was properly submitted to OWCP
prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 2 Because
OWCP did not review and address the August 20, 2020 medical evidence from Dr. Ruggiero, the
Board cannot review such evidence for the first time on appeal.3 The case will therefore be
remanded to OWCP to enable a proper consideration of the evidence that was of record at the time

1

41 ECAB 548 (1990).

2

Id.; see also E.P., Docket No. 20-0655 (issued March 17, 2021); J.S., Docket No. 18-1111 (issued April 30, 2020);
S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004).
3

20 C.F.R. § 501.2(c). A.C., Docket No. 20-0917 (issued January 27, 2021); E.P., id.

2

of its January 28, 2021 decision to be followed by an de novo decision regarding appellant’s
request for reconsideration. Accordingly,
IT IS HEREBY ORDERED THAT the January 28, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 15, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, JERSEY SHORE DDC, )
Bellmawr, NJ, Employer
)
__________________________________________ )
J.P., Appellant

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

Docket No. 10-441
Issued: December 3, 2010

Case Submitted on the Record

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

JURISDICTION
On December 7, 2009 appellant, through counsel, filed an appeal of a November 17,
2009 merit decision of the Office of Workers’ Compensation Programs denying his claim for
compensation. 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 established that he sustained an injury in the performance
of duty on October 12, 2006, as alleged.
FACTUAL HISTORY
On July 20, 2008 appellant, then a 58-year-old mail processor, filed a traumatic injury
claim alleging that on October 12, 2006 he tripped and fell against a cage of mail and, jammed
and hit his right shoulder while catching himself. He asserted that he immediately informed his
supervisor of the accident. W. Keith Henry appellant’s supervisor, stated that appellant had
informed him of an injury, but he did not recall when or how the injury occurred. He noted that

appellant did not request a (Form CA-1) claim for an injury on the job. The employing
establishment challenged the claim based on the late submission. In a letter dated August 15,
2008, the Office informed appellant that additional factual and medical information were needed
to establish his claim and accorded him 30 days to provide such information.
Appellant submitted a July 3, 2008 report from Dr. Jack Facciolo, an osteopath
specializing in orthopedic surgery, who advised that he initially presented on May 22, 2007 with
right shoulder pain. He indicated that he had tripped six months prior when he caught his arm on
a shelf and severely twisted it. Dr. Facciolo noted appellant’s treating physician had offered
conservative treatment but, because of continued pain and weakness, a magnetic resonance
imaging (MRI) scan was ordered which revealed a massive rotator cuff tear that was several
months old. He indicated that appellant underwent an arthroscopic debridement and open rotator
cuff repair on May 31, 2007. Dr. Facciolo stated that he had a functional arm and shoulder but
weakness would remain. He opined that appellant suffered a massive rotator cuff tear to his right
shoulder as a result of his fall. Dr. Facciolo further opined it was difficult to say with any
certainty that working had made his problem worse, as he had not evaluated him through that
period to see a progression in his symptoms.
In a September 18, 2008 decision, the Office denied the claim finding that appellant had
not submitted factual evidence supporting his claim and that the medical evidence was
insufficient.
On September 23, 2008 appellant, through his attorney, requested a hearing, which was
held on February 25, 2009.
In a September 14, 2008 statement and at the hearing, appellant explained the
circumstances surrounding his injury. He injured his right shoulder on October 12, 2006 when
he tripped and caught his shoulder in a cage. Appellant stated that he immediately notified his
supervisor, Mr. Henry, when the incident occurred. He also stated that he started to feel shooting
pains a few days after the fall and, when the pain became worse, he called his family physician
and saw him on November 6, 2006 where he underwent a series of x-rays. Appellant saw his
family physician on December 8, 2006, February 25, April 10 and May 4, 2007. He was
prescribed pain medicine and had cortisone shots. Appellant had an MRI scan on May 11, 2007,
saw his orthopedic surgeon on May 22, 2007 and had surgery on May 31, 2007. He stated that,
right before he went for the MRI scan, his shoulder turned black and blue and became swollen,
which he attributed to working following the injury. Appellant had to overcompensate with his
right shoulder due to the damage to his left shoulder from a 2004 injury and because the
employer did not modify his duties due to his injured left arm. He did not bother to claim the
injury to his right shoulder because of the problems he went through to get his left shoulder
claim approved.1 Appellant advised that he had no other injuries to his right shoulder after he
injured it on October 12, 2006.
In a February 16, 2009 report, Dr. Facciolo clarified his earlier report of July 3, 2008. He
advised that when appellant had indicated that he had tripped six months prior and injured his
right shoulder, the date was October 12, 2006. Dr. Facciolo indicated that he fell at work on
1

Matters regarding any left shoulder condition are not before the Board on the present appeal.

2

October 12, 2006 and had a massive rotator cuff tear. He further stated that appellant seemed to
respond well to surgery and it was not unusual for persistent weakness to occur after a rotator
cuff tear was repaired.
In a May 19, 2009 decision, an Office hearing representative affirmed the September 18,
2008 decision. She found that appellant did not establish that he sustained an injury in the time,
place or manner alleged or a medical condition in connection with the alleged injury.
In an August 13, 2009 letter, counsel requested reconsideration. He indicated that he was
submitting treatment records from appellant’s family physician, Dr. Wayne Schneider, a Boardcertified family practitioner, as well as a November 6, 2006 office note from Dr. Facciolo, which
verified that appellant had tripped and hurt his right shoulder.
On September 1, 2009 the Office recieved a January 27, 2009 medical note from a
podiatrist regarding the left great toe; a May 31, 2007 outpatient report from Cape Regional
Medical Center, Department of Pathology and Laboratory Services; reports dated July 5 to
August 23, 2007 pertaining to a renal insufficiency and a July 9, 2008 report regarding a
nephrology follow-up. Page five from a November 6, 2006 history intake form of the Family
Practice Associates, Dr. Schneider’s office, was submitted. It did not contain any information
pertaining to appellant’s right shoulder.
A November 9, 2006 right shoulder x-ray report noted a history of pain. Records from
Dr. Schneider’s office dated November 13, 2006 to January 23, 2009 were received. The entries
indicate appellant was looking for x-ray results on November 13, 2006, which were reported as
normal; a cortisone injection for right shoulder pain was given and pain medication prescribed on
November 17, 2006; a cortisone shot for right shoulder pain was given on April 10, 2007;
positive findings for muscle weakness and rotation on right shoulder were found and appellant
was referred for an MRI scan on May 4, 2007; MRI scan results were positive for rotator cuff
tear on May 15, 2007; appellant was given MRI scan results and referred to Dr. Facciolo on
May 16, 2007.
In a May 11, 2007 note, Dr. Schneider ordered an MRI scan of appellant’s right upper
extremity due to shoulder pain. The May 11, 2007 MRI scan report noted a clinical history of
loss of motion and weakness as well as trauma in November 2006. An impression of massive
full thickness tear of the supraspinatus and infraspinatus tendons and a tear of the posterior
aspect of the deltoid muscle was provided.
In a May 22, 2007 report, Dr. Facciolo indicated that appellant had a shoulder injury
several months earlier and underwent conservative treatment, which included steroid injections.
Because of persistent pain and weakness, an MRI scan was obtained, which revealed a massive
rotator cuff tear. He provided his examination findings and indicated surgery would be
scheduled. A copy of the May 31, 2007 surgical report was submitted.
By decision dated November 17, 2009, the Office denied modification of the May 19,
2009 decision. It found the factual basis of the claim had not been established as the
contemporaneous medical records did not establish that appellant sustained an injury as claimed
on October 12, 2006.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.4 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
An employee may establish that the employment incident occurred as alleged, but fail to show
that his disability and/or condition related to the employment incident.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. An injury does not have to be
confirmed by eyewitnesses in order to establish that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.6 An employee has not met
his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.7 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast doubt on an employee’s statements in determining whether a
prima facie case has been established.8 However, an employee’s statement regarding the
occurrence of an employment incident is of great probative force and will stand unless refuted by
strong or persuasive evidence.9

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
5

Shirley A. Temple, 48 ECAB 404 (1997).

6

See Betty J. Smith, 54 ECAB 174 (2002).

7

Id.

8

Linda S. Christian, 46 ECAB 598 (1995).

9

Gregory J. Reser, 57 ECAB 277 (2005).

4

ANALYSIS
Appellant has not established fact of injury as inconsistencies in the factual and medical
evidence cast serious doubt as to whether the specific incident occurred at the time, place and in
the manner alleged. He stated on a July 20, 2008 claim form that he injured his right shoulder on
October 12, 2006, when he tripped and fell against a cage of mail and jammed his right shoulder
while catching himself. Appellant did not file a claim until over one and one-half years after the
claimed incident occurred. The record contains no contemporaneous medical reports
documenting that appellant received medical treatment for a work-related right shoulder
condition which occurred as a result of hitting his right shoulder against a cage of mail on the
date alleged.
The inconsistencies in the evidence cast serious doubt upon the validity of the claim.
Appellant asserted that he told his supervisor about his right shoulder injury. While his
supervisor remembered appellant telling him he had an injury, he did not recall when or how any
injury occurred and that appellant did not request a claim form. The record reflects appellant had
a previous work-related left shoulder injury. The Board has recognized that an Office hearing
representative has discretion to weigh the evidence of record and render credibility
determinations based on the witness testimony.10 The Office hearing representative found there
was no way to determine what shoulder injury appellant had mentioned to his supervisor. The
hearing representative additionally found that appellant did not offer a credible reason for
waiting almost 18 months to file his claim even though he was aware of the procedures for filing
a claim with the Office and for reporting an accident with the employing establishment.
The factual history provided in the medical evidence is also insufficient to establish that
the October 12, 2006 incident occurred as alleged. While the most contemporaneous medical
evidence reflects that appellant sought medical care in November 2006 for right shoulder pain, a
few weeks after the claimed injury of October 12, 2006, it provides no mention of any
October 12, 2006 employment incident. The November 5, 2006 history intake form from
Dr. Schneider’s office does not provide any history of injury or discussion pertaining to
appellant’s right shoulder. The form is incomplete as only the fifth page was submitted. The
November 8, 2006 shoulder x-rays noted a history of pain in the right shoulder, but does not
provide any history to support a work-related injury occurred as claimed on October 12, 2006.
Additionally, the treatment notes from Dr. Schneider’s office reflect only that appellant was
receiving cortisone shots and prescribed pain medication for a right shoulder condition in
November 2006, but fail to provide any history of injury to support the claimed October 12, 2006
injury. The most contemporaneous medical records fail to support a history of injury as alleged
to support that the claimed incident occurred on October 12, 2006.11 The Board notes that while
Dr. Facciolo’s July 3, 2008 and February 16, 2009 reports note a history of injury consistent with
appellant’s statement he tripped and fell against a hard object, he did not come under
Dr. Facciolo’s care until May 22, 2007, approximately seven months after the alleged injury of
10

Sharon J. McIntosh, 47 ECAB 754, 757 (1996); Karen R. Gallagher-Phillips, Docket No. 03-1392 (issued
October 17, 2003).
11

See S.S., 59 ECAB 315 (2008) (the Board has held that contemporaneous evidence is entitled to greater
probative value than later evidence).

5

October 12, 2006. Moreover, Dr. Facciolo’s reports and treatment records before July 3, 2008,
do not specifically address a work injury occurring on or around October 12, 2006. This
diminishes the probative value of his reports in establishing the factual component of appellant’s
claim.
Therefore, given the insufficiency of the evidence to establish that the October 12, 2006
incident occurred as alleged, the Board finds that appellant has not met his burden of proof to
establish his claim.12
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained injuries to his right shoulder on October 12, 2006 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 17, 2009 is affirmed.
Issued: December 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

As appellant did not establish an employment incident alleged to have caused an injury, it is not necessary to
consider any medical evidence with regards to causal relationship. See Bonnie A. Contreras, 57 ECAB 364 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Kansas City, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-521
Issued: August 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated June 13 and November 2, 2007. Under 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 an emotional condition causally related to
factors of his employment.
FACTUAL HISTORY
Appellant, a 45-year-old air traffic control specialist, filed a Form CA-1 claim for
benefits based on an emotional condition on April 17, 2007. He stated that this condition
developed when he was notified that an aircraft he had been directing on April 14, 2007 had
crashed.

In a Form CA-20 report dated April 25, 2007, Dr. David Ramirez, Board-certified in
family practice, diagnosed post-traumatic stress disorder (PTSD), and indicated that he had
placed appellant on total disability from April 18 through 25, 2007. He checked a box indicating
the diagnosed condition was caused or aggravated by an employment activity.
By letter dated May 9, 2007, the Office advised appellant that he needed to submit
additional information in support of his claim. The Office asked him to describe in detail the
employment-related conditions or incidents which he believed contributed to his emotional
condition, and to provide specific descriptions of all practices, incidents, etc., which he believed
affected his condition. The letter further explained that it was appellant’s responsibility to
provide the requested information to the Office within 30 days.
In a letter received by the Office on June 7, 2007, appellant stated:
“The PM 28 that crashed was an aircraft under my control in my airspace. I was
responsible for his separation from other aircraft and his general safety.
“The cause of the crash won’t officially be known for months. Investigations into
these kinds of incidents usually take months and even years. The actions I
perform at sections 52 and 53 is simple. I am responsible for the safe, orderly and
expeditious flow of all aircraft in my sector, of which the PM 28 was one.
“How was this illness work related? Well, if I had not worked this aircraft and
talked to the pilot shortly before his and his passengers deaths, I wouldn’t have
been upset at being one of the last human beings to have talked to him. In my line
of work, I am responsible for thousands of lives every day. I, like my fellow
controllers, take this responsibility very seriously. Unlike most lines of work, at
the end of our day, we as controllers have very little to hang our hats on. About
the only way for us to really measure success is that nobody dies on our watch.
I’ve done this job for 24 years and until April 14, no one had ever died on my
watch. That was upsetting.”
Appellant stated that he first became aware of his emotional condition when he learned
that all of the crew and passengers on board the plane had died. He related that he experienced
sorrow, sleeplessness and a sour feeling in his stomach.
In a statement received by the Office on June 11, 2007, the employing establishment
controverted the claim. It stated:
“[Appellant’s] communications with the pilot were extremely limited, spanning
the time frame of 7:29 a.m. to 8:14 a.m. on April 14, 2007. Communications
consisted of two transmissions -- one to acknowledge the pilot and one to confirm
the altimeter setting. [Appellant] transferred control of the aircraft to another
controller at 8:15 a.m. The contact between [him] and the pilot was normal and
uneventful.”

2

In a letter to the Office dated June 1, 2004, Gerald B. Schwartz, acting air traffic manager
for the employing establishment, stated:
“The [employing establishment] does not concur with [appellant’s] allegations,
and submits the following information to controvert [appellant’s] claim.
“On April 14, 2007 [appellant] provided routine and customary services to the
pilot at 8:09 a.m. when the pilot established contact with Kansas City Center.
[He] acknowledged the pilot and then provided the pilot with altimeter reading.
[Appellant] was relieved from his control position by another controller at
8:15 a.m. for a work break. His communication with the pilot consisted of
extremely limited conversation; i.e., acknowledging the initial contact and
providing altimeter reading. [Appellant] had no further communication with the
aircraft. He left work, went home, and did not learn of the accident until the next
workday.
“[Appellant] is extremely well trained in handling aircraft, as are other fully
certified controllers. In addition, he has over 20 years experience as a controller
in one of our busiest and most complex areas. The pilot was not distressed when
[appellant] interacted with this aircraft, and this was no different than his
interaction with the thousands of other aircraft throughout his career.
“I have reviewed the attending physician’s report, Form CA-20, in which
Dr. David Ramirez stated his diagnosis of [appellant’s] condition as ‘[PTSD].’
As previously stated, [appellant] provided routine and customary services as an
air traffic controller on April 14, 2007, and did not have any knowledge of the
accident until the next workday. The extent of his involvement in this incident is
limited to providing routine and customary services.
“[Appellant] was able to perform the required duties of his position in accordance
with expectations. There were no performance or conduct problems, and his
actual duties do not vary from the official job description.”
By decision dated June 13, 2007, the Office denied appellant’s claim on the basis that he
failed to establish any compensable factor of employment and thus fact of injury was not
established.
In a report dated May 15, 2007, Dr. Ramirez stated:
“[Appellant] is a patient of mine who suffered a minor case of [PTSD], requiring
approximately two weeks off work, due to a single plane accident in April. He
was given one to two weeks off work, for mild post-traumatic stress without any
specific medications. Counseling was suggested, and he has done well. He has
since followed up with me and is doing well, with no further signs of posttraumatic stress, anxiety, depression, or abnormal thoughts.
“In my opinion, it is okay for him to return to work with resolved [PTSD].”

3

On June 20, 2007 appellant requested a review of the written record.
By decision dated November 2, 2007, an Office hearing representative affirmed the
June 13, 2007 decision.
LEGAL PRECEDENT
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to his alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1
To occur in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be said to be engaged in his or her master’s business; (2) at a
place where he or she may reasonably be expected to be in connection with the employment; and
(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.2
ANALYSIS
Appellant alleged that he sustained stress in the performance of his duties as an air traffic
controller after being informed that the pilot of an aircraft to whom he had spoken the previous
day had crashed his plane, killing himself, the crew, and all of the passengers on board. He
stated that he experienced severe trauma because the aircraft had been under his control and
direction and was within his designated airspace, and because he had never dealt with a situation
involving a fatal plane crash prior to this incident. The Board has held that emotional reactions
to regular or specially assigned duties are compensable.3 The employing establishment
controverted appellant’s claim noting that appellant’s contacts with the pilot were limited, from
8:09 a.m. until 8:15 a.m., at which time appellant turned over the control of the plane to another
controller to go on break. The employing establishment also noted that nothing unusual or
untoward had occurred while the plane was under appellant’s watch. While the record is unclear
as to actual time of the plane crash, there is no evidence of record that the crash occurred during
appellant’s watch, or as a result of any duties appellant performed with respect to the flight.
Appellant stated that he became extremely upset upon learning that he was one of the last human
beings to have spoken with the pilot. He asserted that he took his responsibilities as an air traffic
control specialist very seriously; the fact that this was the first fatality he had ever experienced
on his watch in 24 years of service. Appellant has not established that his emotional condition
was caused by his regular duties as an air traffic controller because contrary to his general
allegation there is no evidence of record that the fatalities occurred “under his watch.”

1

Lillian Cutler, 28 ECAB 125 (1976).

2

Carmen B. Gutierrez, 7 ECAB 58 (1954).

3

See Lillian Cutler, supra note 1.

4

When appellant did learn of the event, the fact that an employee learns of the occurrence
of a tragedy in the workplace is not in and of itself compensable. In the case Lois F. Watson4 the
claimant learned that her coworkers had been murdered at work on a day that she was not at the
employing establishment. The Board found that the claimant had not identified any specific duty
or duties, or any factors reasonably incidental to her employment, which caused her disability.
For the same reason appellant has not established a compensable factor of employment in this
case.5
CONCLUSION
The Board finds that appellant did not established that he sustained an emotional
condition in the performance of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 2, 2007 decision is affirmed.
Issued: August 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4

42 ECAB 400 (1991).

5

As the Board has found no compensable factors, it will not review the medical evidence. Marlon Vera, 54
ECAB 834, 839 (2003).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Springfield, MA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1633
Issued: February 26, 2018

Case Submitted on the Record

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

JURISDICTION
On July 24, 2017 appellant filed a timely appeal from a May 2, 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 established a recurrence of total disability commencing
March 20, 2017 causally related to his accepted December 17, 2015 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its May 2, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On December 18, 2015 appellant, then a 59-year-old tractor trailer operator, filed a
traumatic injury claim (Form CA-1) alleging that on December 17, 2015 he injured his knees,
back, and neck as a result of a work-related motor vehicle accident when a truck moving 30
miles per hour backed into the right side of the stationary truck he was operating. He did not
initially stop work.
On February 1, 2016 OWCP accepted his claim for a sprain of the right great toe. On
February 22, 2016 it accepted the additional condition of lumbar radiculopathy. By decision
dated March 23, 2016, OWCP expanded acceptance of appellant’s conditions to include right big
toe sprain, lumbosacral radiculopathy, muscle spasm of the back, right shoulder joint sprain,
strain of the muscle of the cervical region, and a temporary subluxation of the L1-2 lumbar
vertebrae. Appellant received wage-loss compensation and medical benefits on the supplemental
rolls for the period February 2 through March 5, 2016, and on the periodic rolls as of
March 6, 2016.
By letter dated November 1, 2016, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as a result of his failure to accept a suitable modified position
at the employing establishment.
In a report dated February 8, 2017, Dr. Ann Maria Elder, Board-certified in physical
medicine and rehabilitation, listed appellant’s unresolved conditions as including cervical sprain,
cervical disc displacement at C2 through C3 and C4 through C7 with radiculopathy, right
shoulder sprain, thoracic sprain, and lumbar disc disorder. She noted that he continued to have
neck, back, and shoulder pain, but that he had reached maximum medical improvement.
Dr. Elder noted that appellant had been totally disabled from work from December 17, 2015
through September 1, 2016, partially disabled from September 1, 2016 through February 8, 2017,
and currently he could not return to regular duty until he was seen by a neurosurgeon. She
opined to a reasonable degree of medical certainty that his diagnosed conditions were causally
related to the injuries he sustained on December 17, 2015.
In a letter dated February 21, 2017, a supervisor at the employing establishment noted
that appellant had refused the limited-duty assignment found suitable on November 1, 2016.
Appellant refused to accept the job offer, stating that he could not assume the scheduled hours
due to child care issues. The supervisor noted that the work hours of the modified offer were the
same work hours to which he was currently assigned, but that appellant had been working a
modified assignment on different work hours due to operational needs. These operational needs
had ceased to exist, and the job offer placed appellant back on his actual assigned hours.
In a note dated March 13, 2017, Dr. Marc Linson, a Board-certified orthopedic surgeon,
examined appellant and noted that he could remain on light duty.
On March 23, 2017 appellant claimed a recurrence of disability (Form CA-2a). He
indicated the date of recurrence as March 20, 2017, but also as March 21, 2017 in a separate
field. Appellant explained that the recurrence occurred when he dropped his pen and truck cards

2

on the floor, bent to pick them up, and his back went out. A supervisor noted that appellant had
been provided with limited-duty assignments.
In a note dated March 23, 2017, Dr. Linson stated that appellant requested a note to
remain out of work and that he provided appellant with such a note.
By letter dated March 29, 2017, the employing establishment controverted appellant’s
claim for recurrence. It explained that on February 17, 2017 appellant had refused a suitable job
offer due to nonemployment-related child care issues. The employing establishment speculated
that appellant’s claim for recurrence was an attempt to stop termination of his benefits.
By development letter dated March 31, 2017, OWCP informed appellant that he had not
submitted sufficient evidence to establish recurrence of total disability as he had not submitted
any supporting documentation with his claim. The medical evidence of record reflected that he
had the medical capacity to perform full-time limited-duty work, which had been provided by his
employing establishment. OWCP requested that appellant submit a comprehensive narrative
report from a physician including a description of the duties he could not perform, objective
medical findings forming the basis of renewed disability subsequent to March 23, 2017, a
statement of medical opinion relating his claimed disability to his accepted work injury, and the
recommended course of treatment. It further requested that appellant respond to a list of
inquiries regarding his alleged recurrence.
In a record of a telephone conversation on April 7, 2017, appellant maintained that he had
sustained a recurrence of total disability. He also noted that he could not work days anymore due
to daycare issues. An OWCP representative informed appellant that a workers’ compensation
case could not be used for accommodation of childcare.
On April 11, 2017 appellant responded to OWCP’s inquiries. He explained that his
recurrence occurred on March 20, 2017, when he bent over suddenly to pick up his pen and truck
cards that had dropped on the floor. Appellant noted that he had been sitting in an uncomfortable
chair doing paperwork when someone knocked his cards on the floor. In response to OWCP’s
inquiry regarding whether this claim was for a new traumatic injury due to his account of events,
he maintained that his back hurt from the injury sustained on December 17, 2015. Appellant
explained that he believed his disability was due to his accepted conditions because he had
tremendous pain in his back, as well as muscle tightness, spasms, muscle tension, and headaches.
By decision dated May 2, 2017, OWCP denied appellant’s claim for recurrence of
disability. It found that he did not submit sufficient medical evidence to establish that he was
disabled due to a material change or worsening of his accepted work-related conditions.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related

3

injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.3
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.4 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.5
In the absence of rationale, the medical evidence is of diminished probative value.6 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.7
ANALYSIS
The Board finds that appellant has failed to establish a recurrence of total disability
commencing on March 20, 2017 causally related to the accepted employment injuries.
OWCP accepted that appellant sustained right great toe sprain, lumbosacral
radiculopathy, muscle spasm of the back, right shoulder joint sprain, strain of the muscle of the
cervical region, and a temporary subluxation of the L1-2 lumbar vertebrae when a truck moving
30 miles per hour backed into the right side of the stationary truck he was operating on
December 17, 2015. Appellant was totally disabled from work from December 17, 2015 through
September 1, 2016, and partially disabled from September 1, 2016 through February 8, 2017.
Dr. Elder, in a report dated February 8, 2017, noted that he could not return to regular duty until
he was seen by a neurosurgeon. The employing establishment provided and offered light-duty
work for appellant, which he refused on the basis that the hours conflicted with nonemploymentrelated childcare duties.
In support of his recurrence claim, appellant submitted only a March 23, 2017 note from
Dr. Linson, stating that appellant requested a note to remain out of work and that he provided
appellant with such a note. Without any explanation or rationale for the conclusion reached,
3

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
4

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

5

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

6

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

7

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

4

such report is insufficient to establish causal relationship.8 Dr. Linson’s report fails to provide
medical explanation and rationale, supported by objective findings, that appellant was in fact
disabled due to his accepted conditions.9
The Board finds that Dr. Linson’s mere statement that appellant asked for a note to stay
out of work, and that Dr. Linson provided the note, is not a rationalized opinion that appellant
was totally disabled causally related to his accepted injury. Therefore, Dr. Linson’s note is
insufficient to establish appellant’s claim.10
For each period of disability claimed, an employee must establish that he or she was
disabled from work as a result of the accepted employment injury. The Board will not require
OWCP to pay compensation for disability without sufficient medical evidence to support the
claim. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.11
Appellant failed to submit sufficiently rationalized medical evidence establishing that he
was totally disabled commencing March 20, 2017 causally related his accepted employment
injuries.12 The Board therefore finds that he has not met his burden of proof.13
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 failed to meet his burden of proof to establish a recurrence
of total disability commencing on March 20, 2017 causally related to his accepted December 17,
2015 employment injury.

8

See M.R., Docket No. 17-1388 (issued November 2, 2017).

9

See B.B., Docket No. 15-1738 (issued January 12, 2017).

10

Supra note 6.

11

See C.Y., Docket No. 17-0605 (issued January 11, 2018).

12

See Cecelia M. Corley, 56 ECAB 662 (2005).

13

See Tammy L. Medley, 55 ECAB 182 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 26, 2018
Washington, DC

Christopher J. Godfrey, 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

6