United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, BROADWAY
STATION POST OFFICE, Astoria, NY,
Employer
__________________________________________

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

Docket No. 20-0233
Issued: October 9, 2020

Case Submitted on the Record

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

JURISDICTION
On November 8, 2019 appellant filed a timely appeal from an August 6, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has abused its discretion by denying appellant’s request for
authorization for physical therapy and/or acupuncture, as of February 2, 2019.
FACTUAL HISTORY
On March 26, 2012 appellant, then a 52-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on that day when closing a shelf on a postal container (post-con) a metal case
fell on top of her forehead while in the performance of duty. She stopped work on March 27, 2012.
OWCP accepted appellant’s claim for contusion of the face, scalp, and neck, except eye(s),
concussion, and post-concussion syndrome. It paid her wage-loss compensation on the
supplemental rolls commencing May 11, 2012. On January 10, 2013 OWCP terminated
appellant’s entitlement to wage-loss compensation and schedule award benefits because she
refused to accept suitable work.3 Appellant returned to a sedentary position in late February 2013.
She remained in receipt of medical benefits due to medical residuals from her accepted
employment injuries. Appellant continued to be provided with physical therapy and acupuncture
treatments.
In December 3 and 24, 2018 reports, Dr. Alexander Gimpelevich, an osteopath Boardcertified in physiatry, noted appellant’s history of a March 26, 2012 employment-related injury
which caused cervical derangement. He also described the results of a March 11, 2018 magnetic
resonance imaging (MRI) scan of her cervical spine. Dr. Gimpelevich indicated that appellant had
past history of cancer, for which she underwent chemotherapy and was subsequently diagnosed
with chemotherapy neuropathy. He noted that her complaints of general body aches from neck
and upper back pain were improved with physical therapy and trigger point injections.
Dr. Gimpelevich provided assessments of status post March 26, 2012 employment-related injury
with cervical and intervertebral disc displacement, bilateral foraminal nerve, and degenerative disc
disease at C1-2 and C2-3; myofascial pain syndrome; and history of tension headache, postconcussion syndrome, occipital neuralgia; and distal lower extremity neuropathy secondary to
chemotherapy. He recommended that physical therapy continue three times a week.
Dr. Gimpelevich also provided trigger point injections.
On February 18, 2019 OWCP received a request for physical therapy and/or acupuncture
for a period beginning February 2, 2019. Dr. Gimpelevich indicated a cervical herniated nucleus
pulposus diagnosis on his physical therapy order.
In a February 21, 2019 development letter, OWCP advised appellant that additional
medical evidence was required from her treating physician before further physical therapy and/or
acupuncture could be authorized. It noted that physical therapy and/or acupuncture had been
furnished for an extended period of time, but had not resulted in the increased function or decrease

3

In its January 10, 2013 decision, OWCP indicated that the termination was effective January 10, 2012. Based on
the evidence contained within the decision, the termination date appears to be a typographical error and should be
January 10, 2013.

2

in the level of disability from the conditions accepted due to her March 26, 2012 employment
injury. OWCP afforded appellant 30 days to provide the additional medical evidence.
OWCP received medical reports and authorization requests from Dr. Gimpelevich. In
February 4, March 4, and April 1, 2019 reports, Dr. Gimpelevich continued to provide an
assessment of “status post work-related injury” with cervical disc displacement, disc bulging,
bilateral foraminal stenosis, and degenerative disease multilevel, myofascial pain syndrome and
history of tension headache, post-concussion syndrome, and occipital neuralgia, not active. He
additionally provided a differential diagnosis of ulnar nerve entrapment, peripheral neuropathy,
and cervical radiculopathy.4 Dr. Gimpelevich noted that appellant was status post carpal tunnel
release in 2010 and indicated that her peripheral neuropathy had been diagnosed by her
hematologist as secondary to chemotherapy. He provided trigger point injections and continued
to recommend physical therapy.
In a May 29, 2019 letter, OWCP advised appellant that it was unable to authorize the
requested medical treatment and that she could request a final decision in the matter. It noted that
the medical evidence indicated that the tension headache and post-concussion syndrome conditions
were not currently active and that the other conditions had not been accepted by OWCP.
In a June 12, 2019 letter, appellant requested that OWCP issue a formal decision with
respect to the denial of the requested medical treatment.
In June 10 and 25, 2019 reports, Dr. Gimpelevich continued to provide assessments of
status post employment-related injury with cervical disc displacement and disc bulge, forminal
stenosis, degenerative disc disease multilevel, and myofascial pain syndrome. He also continued
to provide trigger point injections and recommend physical therapy. In his June 25, 2019 report,
Dr. Gimpelevich noted that he had ordered a new MRI scan of cervical spine, which appellant
underwent on June 29, 2019.
The June 29, 2019 cervical spine MRI scan revealed spondylosis deformans and multilevel
broad-based protruding discs from C3-4 through T2-3, which resulted in multilevel mild central
canal stenosis and multilevel mild foraminal stenosis.
In a July 9, 2019 report, Dr. Victor Katz, a Board-certified orthopedic surgeon, noted the
history of the March 26, 2012 employment injury as appellant lifting a heavy object and hit her
head injuring her neck. He indicated that she continued to have neck pain which radiated to the
upper extremities with associated weakness, numbness, and tingling. Dr. Katz noted that physical
therapy, acupuncture, trigger point injections, and epidurals had provided temporary improvement
of pain. He diagnosed cervical radiculopathy, cervical herniated discs at multiple levels, and
cervical central canal stenosis after review of the June 29, 2019 cervical spine MRI scan. Dr. Katz
recommended that appellant continue physical therapy. He further opined that she was totally
disabled.

4
In his March 4, 2019 report, Dr. Gimpelevich indicated that appellant’s upper extremity numbness and tingling
had resolved.

3

In his July 10, 2019 report, Dr. Gimpelevich opined that appellant’s myofascial pain
syndrome was related to her neck pain and neck injury. He continued to recommend physical
therapy and provide trigger point injections.
In a July 10, 2019 letter, Dr. Gimpelevich provided definitions of cervical disc
displacement and cervical bulge and explained that disc herniations and disc bulges refer pain from
the neck into the upper back. The referred pain then produces muscle spasm in the trapezius
muscle in the upper neck and upper back because of where the trapezius attaches to the cervical
and thoracic spine. Dr. Gimpelevich indicated that appellant, like the overwhelming majority of
patients with neck pain, disc herniations and cervical spinal stenosis had referred pain from the
neck into the upper back and neck pain. He opined that physical therapy for any neck discomfort
for the neck and upper back was reasonable and widely accepted in the medical community.
By decision dated August 6, 2019, OWCP denied authorization for physical therapy and/or
acupuncture because the evidence of record did not support that it was medically necessary to
address the effects of appellant’s employment-related conditions.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.5 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the shortest
amount of time.6 OWCP has administrative discretion in choosing the means to achieve this goal
and the only limitation on OWCP’s authority is that of reasonableness.7 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.8
While OWCP is obligated to pay for treatment of employment-related conditions, a
claimant has the burden of proof to establish that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.9 Causal relationship requires supporting
5

5 U.S.C. § 8103.

6

R.M., Docket No. 19-1319 (issued December 10, 2019); G.M., Docket No. 18-1710 (issued June 3, 2019); Dale E.
Jones, 48 ECAB 648 (1997).
7

J.E., Docket No. 18-0228 (issued August 8, 2019); G.M., id.; Daniel J. Perea, 42 ECAB 214 (1990) (abuse of
discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise of judgement,
or administrative actions, which are contrary to both logic and probable deductions from established facts).
8

E.L., Docket No. 17-1445 (issued December 18, 2018); L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007);
Daniel J. Perea, 42 ECAB 214 (1990).
9

R.M., supra note 6; J.R., Docket No. 18-0603 (issued November 13, 2018).

4

rationalized medical evidence.10 Therefore, in order to prove that, a procedure is warranted, a
claimant must establish that the procedure was for a condition causally related to the employment
injury and that the procedure was medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.11
OWCP procedures provide:
“For most orthopedic injuries, PT [physical therapy] services within the first 120
days after a traumatic injury are allowed without any prior authorization required,
and it is also customary to automatically authorize PT postoperatively for
orthopedic surgeries, usually for a period of 60 days postsurgery. If a request for
therapy beyond these time frames is received, OWCP needs to review the file to
determine whether further services should be authorized.”12
To determine whether a claimant requires physical therapy beyond the initial authorization
period, OWCP reviews the record to determine whether the need for PT is due to the accepted
work injury and whether the additional therapy is expected to yield functional improvement.
Additionally, its procedures provide, “To authorize additional physical therapy for pain or to
maintain function, OWCP should ensure that the pain is associated with measurable objective
findings such as muscle spasm, atrophy and/or radiologic changes in joints, muscles, or bones, or
that pain has placed measurable limitations upon the claimant’s physical activities.”13
ANALYSIS
The Board finds that OWCP has not abused its discretion in denying appellant’s request
for authorization for physical therapy and/or acupuncture, as of February 2, 2019.
OWCP accepted appellant’s March 26, 2012 traumatic injury claim for contusion of the
face, scalp, and neck except eye(s), concussion, and post-concussion syndrome. Appellant has
been treated conservatively with physical therapy and/or acupuncture for several years.
In 2019 appellant’s treating physician, Dr. Gimpelevich, sought continuing authorization
for physical therapy and/or acupuncture, seven years after the March 26, 2012 employment-related
injury. He indicated in his reports that her tension headaches and post-concussion syndrome were
no longer active. Dr. Gimpelevich opined, however, that appellant’s neck pain, disc herniations,
and cervical spinal stensosis were causally related to the March 26, 2012 employment injury. In
a July 10, 2019 letter, he advised that physical therapy for any neck discomfort for the neck and
upper back was reasonable and widely accepted in the medical community. Dr. Gimpelevich also
explained how referred pain from the neck resulted in upper back and neck pain.

10

K.W., Docket No. 18-1523 (issued May 22, 2019).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Physical Therapy, Chapter 2.810.19 (September 2010).

13

Id.

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OWCP accepted only the conditions of concussion; contusion of the face, scalp, and neck,
except eyes; and post-concussion syndrome due to the accepted March 26, 2012 employment
incident. While Dr. Gimpelevich generally opined in his reports that appellant’s cervical spine
and back spine conditions were employment related, he failed to provide a rationalized opinion
which explained how the accepted employment injury caused or exacerbated her cervical disc
displacement and disc bulge, foraminal stenosis, degenerative disc disease, cervical radiculopathy,
myofascial pain syndrome, and neck and back pain. A medical opinion must explain how,
physiologically, the movements involved in the employment injury caused or contributed to the
diagnosed conditions.14 Thus, Dr. Gimpelevich’s reports are insufficient to establish causal
relationship. Furthermore, other than generally opining that, physical therapy for any neck
discomfort was reasonable and widely accepted in the medical community, he did not explain how
physical therapy and/or acupuncture would cure, provide relief, or reduce appellant’s disability as
a result of her accepted conditions.15
Dr. Katz diagnosed cervical radiculopathy, cervical herniated discs at multiple levels, and
cervical central canal stenosis, all of which are conditions OWCP had not accepted. While he
provided a history of the employment injury, he failed to address causation, and thus, his report is
of no probative value to support the necessity of physical therapy and/or acupuncture as a result of
appellant’s accepted conditions.16
The record also contains a June 29, 2019 cervical spine MRI scan. The Board has
explained that diagnostic studies, standing alone, lack probative value on the issue of causal
relationship as they do not address whether the employment injury caused any of the diagnosed
conditions.17
There is no other rationalized medical evidence supporting physical therapy and/or
acupuncture as necessary to address the effects of appellant’s employment-related conditions. The
only restriction on OWCP’s authority to authorize medical treatment is one of reasonableness. The
medical evidence of record does not substantiate that previous therapy has been curative or
provided relief of appellant’s accepted conditions. The Board thus finds that OWCP did not abuse
its discretion in denying her request for authorization of physical therapy and/or acupuncture as of
February 2, 2019.
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.

14

B.B., Docket No. 19-1541 (issued March 2, 2020); Dennis M. Mascarenas, 49 ECAB 215 (1997).

15

See C.W., Docket No. 17-1636 (issued April 25, 2018).

16

C.S., Docket No. 18-1633 (issued December 30, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
17

N.B., Docket No. 19-0221 (issued July 15, 2019).

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CONCLUSION
OWCP has not abused its discretion in denying appellant’s request for authorization for
physical therapy and/or acupuncture, after February 2, 2019.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, WARRIOR
TRANSITION BATALLION,
JOINT BASE LEWIS-McCHORD, WA,
Employer
__________________________________________

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

Docket No. 19-0992
Issued: February 4, 2020

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 April 5, 2019 appellant filed a timely appeal from a November 13, 2018 merit decision
and a March 6, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish total
disability for the period September 2 through 17, 2018 due to the accepted employment injury;
and (2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 19, 2015 appellant, then a 57-year-old human resources assistant, filed a
traumatic injury claim (Form CA-1) alleging that, on December 16, 2014, he sustained knee and
back injuries when he slipped on ice while in the performance of duty.3 By decision dated April 1,
2015, OWCP accepted his claim for bilateral knee contusions and back contusion.4
On January 10, 2017 OWCP expanded the acceptance of appellant’s claim to include the
additional condition of intervertebral disc stenosis of the neural canal of the lumbar region.
On April 10, 2017 appellant underwent an L4 to S1 laminectomy with bilateral
foraminotomies. He stopped work on that day. Effective April 10, 2017, OWCP placed appellant
on the supplemental rolls for total disability.
In a report of work status (Form CA-3) dated July 31, 2017, the employing establishment
indicated a return to work date of July 31, 2017, and noted that appellant had returned to work
part-time, modified duty with restrictions.5
In a periodic progress report dated September 5, 2017, the employing establishment
indicated that appellant returned to work full-time, full duty on August 28, 2017.
On January 3, 2018 OWCP authorized lumbar spine surgery. On February 28, 2018
appellant underwent an L3 laminectomy with bilateral foraminotomies and a reexploration of the

3

By decision dated February 25, 2015, OWCP denied continuation of pay (COP) during his absence from work for
the 45-day period following his December 16, 2014 injury finding that his injury was not reported on an OWCPapproved form within 30 days following the injury.
4

On April 8, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for total disability for the
period April 7 to 15, 2015. By decision dated July 1, 2015, OWCP denied appellant’s claim for wage-loss
compensation commencing April 7, 2015. On September 25, 2015 appellant requested reconsideration of OWCP’s
July 1, 2015 decision. He submitted additional medical evidence along with his request. By decision dated
January 21, 2016, OWCP denied modification of its July 1, 2015 decision.
5

On August 15, 2017 OWCP placed appellant on the periodic rolls for the period July 31 through August 19, 2017.
On August 29, 2017 it returned him on the supplemental rolls for intermittent disability for the period August 21
to 25, 2017.

2

lumbar spinal canal bilaterally at L4-5 and L5-S1, as well as “redo laminectomies and
foraminotomies.”6
In a Form CA-3 dated June 8, 2018, the employing establishment noted that appellant
returned to work part-time, modified duty with restrictions on June 4, 2018.
In a report dated August 24, 2018, Dr. John M. Blair, Jr., a Board-certified orthopedic
surgeon, indicated that he examined appellant for back pain and bilateral leg pain. He indicated
that appellant was to continue working part time.
In a report dated September 3, 2018, Dr. Katherine Colpitts, an emergency medicine
specialist, noted that appellant complained of back pain while barbequing. She diagnosed chronic
bilateral low back pain with bilateral sciatica and acute bilateral low back pain with bilateral
sciatica.
On September 14, 2018 appellant submitted a Form CA-7 for LWOP for total disability
for the period September 2 to 15, 2018.
OWCP paid appellant on the supplemental rolls for intermittent periods of disability for
the period September 2 to 15, 2018. In a development letter dated October 4, 2018, it advised
appellant that it was unable to authorize total disability for the claimed period September 2 to 15,
2018 because the evidence submitted failed to demonstrate an increase in disability. OWCP
informed him of the evidence needed to establish his claim. It afforded appellant 30 days to submit
the necessary evidence.
In CA-7 forms dated October 9, 19, and 29, and November 8, 2018, appellant claimed
compensation for LWOP for intermittent periods of disability for the periods September 17 to 28
and September 30 to November 10, 2018. OWCP paid appellant on the supplemental rolls for
intermittent disability for each claimed period.
Appellant submitted physical therapy notes dated October 5, 9, and 15, and
November 8, 2018. These reports indicated diagnoses of intervertebral disc stenosis of the neural
canal of the lumbar region and sprain of ligaments of the lumbar spine.
In a note dated October 16, 2018, Dr. Blair indicated that appellant needed to be excused
from work from for the period October 2 to 15, 2018 due to a lumbar and bilateral leg flare up.
In a note dated October 28, 2018, Dr. Blair noted that appellant had a “flare up” and needed
to be off work from September 2 through 17, 2018. He explained that appellant would have flare
ups resulting in increased pain and spasms which meant he would need to be excused from work
for a full workday.

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Beginning March 5, 2018, appellant submitted a claim for compensation (Form CA-7) for leave without pay
(LWOP) for total disability commencing February 28, 2018. OWCP placed him on the supplemental rolls for total
disability effective February 28, 2018. Beginning June 14, 2018 appellant submitted CA-7 forms for LWOP for
intermittent periods of disability commencing May 27, 2018. OWCP subsequently placed him on the supplemental
rolls for intermittent periods of disability beginning May 27, 2018.

3

By decision dated November 13, 2018, OWCP denied appellant’s claims for compensation
for total disability for the period September 2 through 17, 2018 finding that the medical evidence
of record failed to establish total disability due to his accepted employment-related injury.
In a report dated October 30, 2018, Dr. Blair indicated that appellant sought treatment for
ongoing back pain with bilateral leg pain. He noted that he had advised appellant that he would
experience occasional flare ups. In a duty status report (Form CA-17) of the same date, Dr. Blair
diagnosed lumbar strain and noted that appellant could resume part-time work dated back to
June 4, 2018.
In a report dated December 20, 2018, Dr. Blair indicated that appellant presented with
increasing pain, numbness, and tingling in his lower extremities, and he needed a letter to “address
his two-week absence from work.”
On February 13, 2019 appellant requested reconsideration of OWCP’s November 13, 2018
decision. Along with his request, he submitted duplicative medical records, including the
August 24, 2018 report and October 28, 2018 notes from Dr. Blair, the September 3, 2018 hospital
report, and numerous diagnostic examination and physical therapy reports previously considered
by OWCP in its November 13, 2018 decision.
Appellant also submitted follow-up reports dated January 10 and February 1, 2019 from
Dr. Blair.
In a report dated February 19, 2019, Dr. Peter E. Krumins, a Board-certified orthopedic
surgeon, indicated that he examined appellant for bilateral knee pain. He diagnosed arthritis of
both the left and right knee.
By decision dated March 6, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim, including that disability or a specific condition for which
compensation is claimed is causally related to the employment injury.8 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.9

7

Supra note 1.

8

T.H., Docket No. 19-0436 (issued August 13, 2019); see B.K., Docket No. 18-0386 (issued September 14, 2018);
see also Amelia S. Jefferson, 57 ECAB 183 (2005); Nathaniel Milton, 37 ECAB 712 (1986).
9

T.H., id.; see D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, id.

4

The term disability is defined as the incapacity, because of an employment injury, to earn
the wages the employee was receiving at the time of the injury.10 Disability is thus not synonymous
with physical impairment, which may or may not result in an incapacity to earn wages.11 An
employee who has a physical impairment causally related to a federal employment injury, but who
nevertheless has the capacity to earn the wages he or she was receiving at the time of injury, has
no disability as that term is used in FECA.12
Whether a particular injury causes an employee to become disabled from work, and the
duration of that disability, are medical issues that must be proven by a preponderance of reliable,
probative, and substantial medical evidence.13 Findings on examination are generally needed to
support a physician’s opinion that an employee is disabled for work.14 The physician’s opinion
must be based on the facts of the case and the complete medical background of the employee, must
be one of reasonable medical certainty, and must include objective findings in support of its
conclusions.15
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.16 To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.17
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish total disability
for the period September 2 through 17, 2018 due to the accepted employment injury.
The medical evidence received relevant to the claimed period of disability was a note from
Dr. Blair who reported that appellant had a “flare up” and needed to be off work from September 2
to 17, 2018. The Board finds that Dr. Blair did not sufficiently explain how appellant’s inability
to work was related to his accepted conditions caused by the December 16, 2014 employment
injury. Dr. Blair did not discuss objective findings to support his inability to work, nor did he

10

20 C.F.R. § 10.5(f); T.H., id.; S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50
ECAB 397 (1999).
11

G.T., Docket No. 18-1369 (issued March 13, 2019); Robert L. Kaaumoana, 54 ECAB 150 (2002).

12

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

13

J.A., Docket No. 18-1304 (issued May 1, 2019); William A. Archer, 55 ECAB 674 (2004).

14

B.W., Docket No. 19-0049 (issued April 25, 2019); Dean E. Pierce, 40 ECAB 1249 (1989).

15

T.H., supra note 8; C.B., Docket No. 18-0633 (issued November 16, 2018).

16

T.H., id.; J.S., Docket No. 16-1014 (issued October 27, 2014); Sandra D. Pruitt, 57 ECAB 126 (2005).

17
See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, supra note 13; Fereidoon Kharabi, 52
ECAB 291 (2001).

5

explain why he was unable to work part-time, limited-duty during the period in question.18 As
noted above, the Board will not require OWCP to pay compensation for disability, in the absence
of medical evidence directly addressing the specific dates of disability for which compensation is
claimed.19 As Dr. Blair has not provided medical rationale for his conclusion that appellant was
unable to work due to his accepted employment injury, this evidence is of limited probative value
and is insufficient to establish appellant’s total disability claim.20
As the medical evidence of record does not contain sufficient rationale to establish
disability during the period September 2 to 17, 2018, the Board finds that appellant has not met
his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration,
to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA21 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.23
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.24 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.25 If the request is timely, but fails to meet at least one
18
T.H., supra note 8; see M.C., Docket No. 16-1238 (issued January 26, 2017); see also Jaja K. Asaramo, 55 ECAB
200 (2004) (the Board found that, for conditions not accepted or approved by OWCP as due to an employment injury,
the claimant bears the burden of proof to establish that the condition is causally related to the employment injury).
M.M., Docket No. 16-0541 (issued April 27, 2010).
19

Supra note 7.

20

T.H., supra note 8; G.R., Docket No. 15-1685 (issued June 14, 2016); S.B., Docket No. 13-1162 (issued
December 12, 2013).
21

Supra note 1.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
24

Id. at § 10.607(a).

25

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

6

of the requirements for reconsideration, it will deny the request for reconsideration without
reopening the case for review on the merits.26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, he was not entitled to a review of the merits based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant has not submitted relevant and pertinent new
evidence in support of his request for reconsideration under 20 C.F.R. § 10.606(b)(3). The Board
notes that the underlying issue in this case is whether he established total disability for the period
September 2 through 17, 2018 causally related to the accepted employment injury. In support of
his reconsideration request, appellant submitted duplicative medical records, including the
August 24, 2018 report and October 28, 2018 note from Dr. Blair, the September 3, 2018 hospital
report from Dr. Colpitts, and numerous diagnostic examination and physical therapy reports
previously considered by OWCP in its November 13, 2018 decision. However, the submission of
this evidence does not require reopening of appellant’s case for review on the merits as the Board
has held that the submission of evidence or argument which repeats or duplicates evidence or
argument already in the case record does not constitute a basis for reopening a case.27
In addition, he submitted new reports dated January 10 and February 1, 2019 from
Dr. Blair, and a report dated February 19, 2019 from Dr. Krumins. However, none of these reports
address the underlying issue in this this case, i.e., whether appellant established entitlement to total
disability compensation for the period September 2 to 17, 2018. The Board has held that the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.28 As such, this evidence is insufficient to warrant reopening
appellant’s case for a merit review.
Because appellant had not submitted new evidence relevant to the issue of disability
entitlement with his February 13, 2019 request for reconsideration, he is not entitled to a review
of the merits of his claim based on the third above-noted requirement under section 10.606(b)(3).

26

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

27

S.W., Docket No. 19-1498 (issued January 9, 2020); N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F.
Butler, 36 ECAB 393, 398 (1984).
28
Id.; see also M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224,
225 (1979).

7

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.29
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish total disability
for the period September 2 through 17, 2018 due to the accepted employment injury. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 6, 2019 and November 13, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 4, 2020
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

29

C.C., Docket No. 18-0316 (issued March 14, 2019); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630
(2006) (when an application for reconsideration does not meet at least one of the three requirements enumerated under
section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the
merits).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
U.S. POSTAL SERVICE, REMOTE
ENCONDING CENTER, Salt Lake City, UT,
Employer
__________________________________________
Appearances:
David J. Holdsworth, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 14-838
Issued: November 10, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 5, 2014 appellant, through counsel, filed a timely appeal from a September 24,
2013 decision of the Office of Workers’ Compensation Programs (OWCP) denying his request
for reconsideration. The Board assigned Docket No. 14-838.1
On June 7, 2011 appellant, then a 33-year-old career clerk, filed an occupational disease
claim alleging that on July 3, 2010 he first realized that his bilateral epicondylitis resulted from
the performance of fine manipulation and his bilateral carpal tunnel syndrome. OWCP denied
appellant’s claim on August 25, 2011. By letter dated March 23, 2012, appellant requested
reconsideration and referenced his prior claim which had been accepted for carpal tunnel
syndrome under File No. xxxxxx266. On March 28, 2012 OWCP also received an August 17,
2011 letter in which appellant alleged that his bilateral epicondylitis was causally related to his
accepted carpal tunnel syndrome. It denied modification by decision dated June 25, 2012. By
letter dated June 22, 2013, appellant’s counsel requested reconsideration and referenced File No.
xxxxxx266 and the current File No. xxxxxx482. On September 24, 2013 OWCP denied
reconsideration. On appeal counsel contended that there was an unresolved question as to the
1

Appellant, through counsel, timely requested an oral argument before the Board, pursuant to 20 C.F.R.
§ 501.5(b). The Board exercised its discretion, pursuant to 20 C.F.R. § 501.5(a) in denying the oral argument
request by a July 14, 2014 order. See Order Denying Request for Oral Argument, Docket No. 14-838 (issued
July 14, 2014).

relationship between appellant’s accepted right carpal tunnel syndrome under File No.
xxxxxx266 and the alleged bilateral epicondylitis under File No. xxxxxx482.
The Board has duly considered the matter and concludes that the case is not in posture for
a decision. OWCP procedures provide that cases should be doubled when a new injury is
reported for an employee who previously filed an injury claim for a similar condition and further
indicates that the cases should be doubled as soon as the need to do so becomes apparent.2
As the record before the Board does not contain all the evidence from the prior related
claim, the Board is unable to properly address and adjudicate the issue of appellant’s current
occupational injury attributing his bilateral epicondylitis to his work duties and bilateral carpal
tunnel syndrome, previously accepted under File No. xxxxxx482.
On remand, OWCP should combine the present case record, File No. xxxxxx482, with
File No. xxxxxx266. After combining these case records on remand, it should consider the
evidence contained in the combined case record and, following any necessary further
development, issue a de novo decision. Accordingly, the September 24, 2013 decision denying
appellant’s occupational disease shall be set aside.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 24, 2013 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: November 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, CHICAGO
INTERNATIONAL SERVICE CENTER,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0661
Issued: April 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 3, 2020 appellant, through counsel, filed a timely appeal from a December 19,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral foot/ankle
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 2, 2018 appellant, then a 55-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she sustained a heel-bone spur causally related to factors of her
federal employment. She noted that she first became aware of her condition and realized its
relation to her federal employment on September 16, 2008. Appellant stopped work on
May 2, 2018.
In a June 13, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim, including a narrative medical report from a treating
physician, containing a detailed description of findings and a diagnosis, explaining how her work
activities caused, contributed to, or aggravated her medical conditions. OWCP also provided a
questionnaire for appellant’s completion regarding her employment activities. It afforded her 30
days to respond.
OWCP received progress notes from Dr. Garo Emerzian, a podiatrist. On May 29, 2018
Dr. Emerzian noted that appellant was seen for plantar fasciitis. He indicated that she worked as
a mail handler and engaged in “loading trucks and things.” Dr. Emerzian diagnosed sinus tarsi
syndrome, left worse than right, posterior tibial tendinitis, bilateral, peroneal tendinitis, left side,
plantar fasciitis, improving, and osteoarthritis of the first metatarsophalangeal joint (MTPJ),
bilateral. In a May 29, 2018 work status report, he diagnosed bilateral plantar fasciitis and
recommended a return to sedentary work.
In a statement received on July 18, 2018, appellant described her work activities as a mail
handler. She indicated that, over the past 30 years, she worked 5 to 6 days per week, 6 to 8 hours
per day. Appellant indicated that her duties included standing, walking, lifting bags of mail
weighing up to 50 pounds, bending, twisting, stooping, and reaching, while sorting and processing
mail in many forms, including large and small packages, letter trays, flat tubs, large and small
boxes, averaging 10,000 steps per day at work. She alleged that she worked on the concrete surface
dock while loading and unloading trailers of mail and empty equipment, weighing over two tons
on wheels, standing to rewrap damaged packages and parcels, working on the dock dumping bags
into the sack sorter system, dumping sacks into the bulk mail carriers below the ramp, dumping
sacks of mail onto a belt in central dispatch, sorting mail from a moving belt in customs, taking
out full equipment and replacing with empty ones, replacing full bags after tying them out, and
hand strapping with plastic straps. Appellant noted that she had undergone surgery in 2009 for
plantar fasciitis, but the same symptoms returned.
Appellant also explained that she delayed reporting her injury as she was unaware that the
condition she experienced in 2008 was the result of her federal employment duties. She related
that she was now convinced that her conditions were the direct result of her employment activities

2

over many years. Appellant explained that she worked long hours standing, walking, and lifting
volumes of weight on the employing establishment’s concrete surfaces.
In an April 30, 2018 work status report, Dr. David E. Hamming, a Board-certified
orthopedic surgeon, diagnosed bilateral heel pain, rule out stress fracture, and requested a magnetic
resonance imaging (MRI) scan of appellant’s feet. He recommended a return to sedentary work.
In a July 11, 2018 ultrasound report of the right and left foot and ankle, Dr. Brian Kincaid,
a chiropractor, diagnosed plantar fasciitis medial and central band origin of the plantar fasciitis
bilaterally, osteoarthritis first MTPJ bilaterally, mild Achilles enthesopathy bilaterally with no
acute or chronic gross defects multilobulated ganglion cyst, and a mildly attenuated anterior
talofibular ligament bilaterally at the lateral malleolus attachment consistent with old moderate
sprains.
In a July 12, 2018 report, Dr. Emerzian noted that appellant returned for follow-up of
plantar fasciitis, right worse than left. He related that she was on restricted sedentary work duty.
Dr. Emerzian diagnosed Achilles insertional tendinitis, right side greater than left, plantar fasciitis,
right greater than left, sinus tarsi syndrome, pain in foot and ankle, and osteoarthritis, first MTPJ
bilaterally. He explained that “The osteoarthritis in the first M[T]PJ of both feet may be
contributing to the pain and discomfort in the sinus tarsi region. [Appellant] may be compensating
from that.” Dr. Emerzian completed a July 12, 2018 work status report and diagnosed sinus tarsi
syndrome, posterior tibial tendinitis, and peroneal tendinitis. He recommended sedentary work
and standing as tolerated with controlled ankle motion boots.
In a July 24, 2018 report, Dr. Emerzian noted appellant’s medical history, provided
examination findings, and diagnosed plantar fasciitis, bilateral. He explained that long periods of
standing can exacerbate plantar fasciitis.
In August 2 and 21, 2018 reports, Dr. Emerzian diagnosed Achilles insertional tendinitis,
right greater than left, plantar fasciitis, right greater than left, sinus tarsi, syndrome, osteoarthritis
bilateral, and pain in foot and ankle. He provided work restrictions on August 2 and 23, 2018, and
continued to recommend “nonweightbearing” work.
By decision dated August 27, 2018, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish causal relationship between her diagnosed
medical conditions and the accepted factors of her federal employment.
OWCP continued to receive medical evidence. In a May 8, 2018 report, Dr. Emerzian
noted that appellant had complaints of bilateral heel pain for the last three weeks. He noted that
she related that she had experienced the same condition 2009, which resulted in a plantar fascial
release. Dr. Emerzian diagnosed plantar fasciitis, bilateral, osteoarthritis first MTPJ right foot,
and pain in foot and ankle. In an August 21, 2018 report, he noted that appellant was seen for
follow-up of her plantar fasciitis on the right side, Achilles tendinitis, and pain in the foot and
ankle. Dr. Emerzian noted that she was improving. He diagnosed Achilles tendinitis, plantar
fasciitis, right greater than left, sinus tarsi syndrome, and bilateral osteoarthritis, first MTPJ.
Dr. Emerzian noted that appellant’s cast was removed and a new cast was reapplied on the right
side. He treated her on May 22 and 29, and September 6, 2018, provided a referral for physical

3

therapy, and placed appellant off work. Dr. Emerzian also provided progress notes dated
September 11 and 20, 2018 wherein he reiterated appellant’s diagnoses and treatment plan. In the
September 11, 2018 report, he noted that she carried and lifted from 10 to 50 pounds during the
course of the day, which “can” exacerbate her plantar fasciitis.
On May 31, 2019 appellant requested reconsideration.
In a September 25, 2018 report, Dr. Joel R. Anderson, a podiatrist, diagnosed plantar
fasciitis, bilateral feet. He advised that appellant related that, in 2009, she underwent a surgical
procedure and the heel pain had resolved, but in April 2018 the heel pain returned. Dr. Anderson
diagnosed plantar fasciitis, bilateral heel pain, bilateral calcaneal spurs, insertional Achilles
tendinopathy, sinus tarsi syndrome of right ankle, osteoarthritis of foot joint, bilateral, and acquired
hallux rigidus, bilateral. He noted that he had reviewed appellant’s job description, which included
working for 30 years with repetitive stress on both feet, 6 to 8 hours a day, 5 to 6 days per week
with ambulatory activities on concrete floors with limited access to stress mats, carrying up to 50
pounds regularly, and averaging 10,000 steps a day. Dr. Anderson explained that plantar fasciitis
and Achilles tendinitis was an overuse injury or a repetitive stress injury and opined that a strain
injury could be from excessive running, walking, or inadequate foot gear. He opined that
appellant’s heel pain was consistent with the stress of her daily employment activities and that
“[t]here appears to be a causal relationship of her heel pain with her employment requirements.”
In a report dated October 11, 2018, Dr. Anderson related that appellant was seen for
bilateral heel and plantar fasciitis pain, which had improved following an injection. He reiterated
appellant’s diagnoses from his September 25, 2018 report. In a December 6, 2018 duty status
report, Dr. Anderson diagnosed plantar fasciitis and other disabling conditions of degenerative
joint disease. He indicated that appellant was unable to perform her regular duties and prescribed
work restrictions. In a December 6, 2018 report, Dr. Anderson noted that appellant presented with
minimal bilateral foot pain. He also related that she had pain in her feet which was aggravated by
prolonged periods of standing and walking. Dr. Anderson explained that after six hours of being
on appellant’s feet, they would get very painful. He diagnosed plantar fasciitis, heel pain, bilateral,
calcaneal spur, bilateral, insertional Achilles tendinopathy, acquired hallux rigidus, bilateral, and
peroneal tendinitis, right. Dr. Anderson advised a return to work with restrictions.
Dr. Anderson treated appellant on January 24, March 7, 11, and 18, and April 16, 2019. In
the March 7 and 18, 2019 reports, he advised that plantar fasciitis was an overuse injury or
repetitive strain injury and that “such strain injury can be from excessive running, walking or
inadequate footgear. [Appellant’s] heel pain is consistent with the stresses of her every day
activities associated with her employment. There appears to be a causal relationship of her heel
pain with her employment requirements.”
By decision dated July 12, 2019, OWCP denied modification of the August 27, 2018
decision.
On October 23, 2019 appellant, through counsel, requested reconsideration and submitted
a new report from Dr. Anderson.

4

In a September 10, 2019 report, Dr. Anderson noted that appellant complained of pain in
her bilateral heels and plantar fasciitis. He indicated that the date of injury was April 16, 2018,
and that appellant was reinjured on July 18, 2019 at her place of employment. Dr. Anderson noted
that appellant related that she “directly stepped on the ‘bag lock’ with her heel causing significant
pain and she withdrew quickly spraining her ankle and knee.” He advised that she continued with
no change to the pain in her heel and that she presented with medical articles that “states plantar
fasciitis is directly related to repetitive stress in a work environment that requires prolonged
standing and walking on concrete surfaces.” Dr. Anderson also indicated that appellant related
that standing and walking on the hard surfaces at work caused significant pain and inability to
perform her normal daily employment duties. He indicated that he would follow the progress of
her heel pain due to the recent aggravation of the plantar fasciitis related to the direct contusion
type injury from stepping on the “bag lock.” Dr. Anderson opined that the “plantar fasciitis
condition has been aggravated and accelerated by the recent injury” and “the compensation of the
left ankle and knee is stressing the right heel as well.” He noted that “[r]epetitive stress will cause
worsening of the heel pain and restrictions on her employment are necessary to avoid further injury
and complications of her condition.”
By decision dated December 19, 2019, OWCP denied modification of the July 12, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

3

S.A., Docket No. 20-0458 (July 23, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB
178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

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

5

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and factors of employment, the employee must submit sufficiently rationalized medical
opinion evidence.7 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.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral
foot/ankle condition causally related to the accepted factors of her federal employment.
In a May 8, 2018 report, Dr. Emerzian noted that appellant had undergone a plantar fascial
release in 2009 and he diagnosed plantar fasciitis, bilateral, osteoarthritis of the first MTPJ right
foot, and pain in foot and ankle. In a May 29, 2018 progress note, he diagnosed sinus tarsi
syndrome, left worse than right; posterior tibial tendinitis, bilateral, peroneal tendinitis, left side,
plantar fasciitis, improving, and osteoarthritis of the first MTPJ bilateral. In his work status report,
also dated May 29, 2018, Dr. Emerzian diagnosed bilateral plantar fasciitis. In progress reports
dated through September 20, 2018, he related appellant’s diagnoses and work restrictions. The
Board notes that these reports contain diagnoses but no opinion on causal relationship. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.9 Accordingly, these reports
are insufficient establish appellant’s claim.
In a July 12, 2018 report, Dr. Emerzian diagnosed Achilles insertional tendinitis, right side
greater than left, plantar fasciitis, right greater than left, sinus tarsi syndrome, pain in foot and
ankle, and osteoarthritis, first metatarsophalangeal joint bilaterally. He explained that “The
osteoarthritis in the first M[T]PJ of both feet may be contributing to the pain and discomfort in the
sinus tarsi region. [Appellant] may be compensating from that.” The Board notes that
Dr. Emerzian is attributing appellant’s condition to her osteoarthritis and does not discuss her work
factors. This report is insufficient to establish her claim.
In a July 24, 2018 report, Dr. Emerzian diagnosed plantar fasciitis, bilateral and opined that
“long periods of standing can exacerbate plantar fasciitis.” In his September 11, 2018 report, he
noted that appellant lifted and carried weights up to 50 pounds while performing her work duties.
Dr. Emerzian indicated that lifting and carrying increased weight “can” exacerbate her plantar
6
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

K.V., Docket No. 18-0723 (issued November 9, 2018).

8

S.S., Docket No. 18-1488 (issued March 11, 2019); I.J., 59 ECAB 408 (2008).

9

L.B., Docket No. 19-1907 (issued August 14, 2020); D.K., Docket No. 17-1549 (issued July 6, 2018).

6

fasciitis. The Board has held that a medical opinion that is speculative or equivocal in nature is of
diminished probative value.10 Moreover, a medical opinion must explain how the implicated
employment factors physiologically caused, contributed to, or aggravated the specific diagnosed
conditions11 Dr. Emerzian did not offer any medical rationale to explain how appellant’s
conditions were related to factors of her federal employment.
In an April 30, 2018 work status report, Dr. Hamming diagnosed bilateral heel pain, rule
out stress fracture. The Board has explained that pain is not considered a diagnosis and merely
refers to a symptom of an underlying condition.12 As such, this report is insufficient to establish
appellant’s claim.
OWCP also received a number of progress reports from Dr. Anderson in which he
reiterated appellant diagnoses and medical treatment. Regarding causal relationship, in reports
dated September 25, 2018 and March 7 and 18, 2019, Dr. Anderson noted that her job duties
included up to nine hours of standing on concrete surfaces without stress mats. He diagnosed
plantar fasciitis, bilateral heel pain, bilateral calcaneal spurs, insertional Achilles tendinopathy,
sinus tarsi syndrome of right ankle, osteoarthritis of foot joint, bilateral, and acquired hallux
rigidus, bilateral. Dr. Anderson explained that plantar fasciitis and Achilles tendinitis was an
overuse injury or a repetitive stress injury and opined that such strain injury could be from
excessive running, walking, or inadequate foot gear. He opined that appellant’s heel pain was
consistent with the stresses of her everyday employment activities and that “[t]here appears to be
a causal relationship of her heel pain with her employment requirements.” As noted, a medical
opinion that is speculative or equivocal in nature is of diminished probative value.13 Accordingly,
Dr. Anderson’s speculative, opinion is insufficient to establish appellant’s claim.
In a September 10, 2019 report, Dr. Anderson indicated that the date of injury was
April 16, 2018 and that appellant was reinjured on July 18, 2019 at her place of employment when
she “directly stepped on the ‘bag lock’ with [appellant’s] heel causing significant pain and she
withdrew quickly spraining her ankle and knee.” The Board notes that the history of injury
provided in this report from him does not comport with the employment factors described by her.
On her claim form appellant alleged that her conditions were caused by the repetitive activities of
her job up until May 2, 2018, the date she filed her occupational disease claim. This claim does
not pertain to a traumatic incident she sustained on July 18, 2019.
The record contains a December 31, 2018 note from a physician assistant. Certain
healthcare providers such as physician assistants are not considered “physician[s]” as defined

10

C.B., Docket No. 20-0464 (issued July 21, 2020).

11

Id.

12

See N.X., Docket No. 20-0499 (issued November 6, 2020); M.V., Docket No. 18-0884 (issued
December 28, 2018). The Board has consistently held that pain is a symptom, not a compensable medical diagnosis.
See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
13

C.B., supra note 10.

7

under FECA.14 Consequently, their medical findings and/or opinions will not suffice for purposes
of establishing entitlement to FECA benefits.15
OWCP received a July 11, 2018, ultrasound of the right and left foot and ankle from
Dr. Kincaid, a chiropractor. Under FECA, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.16 The report of Dr. Kincaid is not considered to be medical
evidence and is of no probative value regarding appellant’s disability claim because he did not
treat her for spinal subluxations that were demonstrated by x-ray to exist.
As the record does not contain rationalized medical evidence establishing causal
relationship between appellant’s diagnosed bilateral foot conditions and the accepted factors of
her federal employment, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a bilateral
foot/ankle condition causally related to the accepted factors of her federal employment.

14
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA). See C.K., Docket No. 19-1549 (issued June 30, 2020) (physician assistants are not considered physicians
under FECA).
15

Id.

16
5 U.S.C. § 8101(2). See A.M., Docket No. 16-1875 (issued August 23, 2017); Jack B. Wood, 40 ECAB 95,
109 (1988).

8

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2019 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: April 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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