United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, CONWAY POST
OFFICE, Little Rock, AR, Employer
__________________________________________

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

Docket No. 19-0192
Issued: July 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 6, 2018 appellant filed a timely appeal from an October 15, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish cervical spine
conditions causally related to accepted factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as presented
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On January 4, 2016 appellant, then a 60-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed a neck and shoulder condition on October 8, 2015.
She first became aware of her claimed condition on October 8, 2015 and attributed it to her federal
employment on November 12, 2015. Appellant stopped work on November 14, 2015.
On October 8, 2015 Dr. Robert F. McCarron, a Board-certified orthopedic surgeon,
initially examined appellant due to neck complaints which began in approximately 2001. He noted
that appellant fell down several stairs while working as a postal carrier. Appellant developed neck
pain with radiation into her left arm and underwent cervical fusion. She returned to work and in
2011 was diagnosed with degenerative discs above and below her fusion site. Dr. McCarron
diagnosed chronic cervical pain syndrome, as well as degenerative cervical discs at C4-5 and C6-7.
He recommended testing.
In a report dated October 29, 2015, Dr. McCarron listed appellant’s date of injury as 2001.
He listed her conditions arthritis, back problems, ruptured disc in neck, and irritable bowel
syndrome. Dr. McCarron reviewed appellant’s magnetic resonance imaging (MRI) scan of the
cervical spine and found that she had degenerative changes in her cervical spine. He noted that
she had a 10-pound lifting restriction and that she experienced discomfort casing mail.
Dr. McCarron reported positive impingement test in both shoulders during physical examination.
He diagnosed cervical degenerative disc disease at C4-5 and C6-7, cervical fusion at C5-6, chronic
pain syndrome, and bilateral cervical stenosis C4-5. Dr. McCarron provided additional work
restrictions of lifting no more than 10 pounds, and curtailing driving. He opined, “I believe that
driving and lifting as well as reaching and casing mail would aggravate the degenerative changes
in [appellant’s] neck.”
In a January 8, 2016 development letter, OWCP requested additional factual and medical
evidence in support of appellant’s occupational disease claim. It provided a factual questionnaire
for her completion and requested that she provide additional medical evidence. OWCP afforded
appellant 30 days to respond.
Appellant completed the questionnaire and noted her employment duties of casing mail
above shoulder height, lifting packages, loading her vehicle, and delivering mail. She alleged that
lifting trays of mail and packages as well as pushing buggies caused excessive pain and tingling
down her arms to her fingers. Appellant noted that she had begun dropping things, tripping, and
falling down.
On February 3, 2016 Dr. McCarron completed a note and diagnosed cervical degenerative
disc disease, bilateral cervical stenosis, and chronic pain. He noted that appellant fell down several
stairs about 15 years ago and that this fall initiated her neck pain. Dr. McCarron opined, “I believe

2

Docket No. 17-0010 (issued March 1, 2017).

2

that driving and lifting as well as reaching and casing mail have aggravated [appellant’s] current
condition.”
On February 10, 2015 OWCP requested that Dr. McCarron provide a detailed narrative
medical report which described the relationship between appellant’s current condition and her
federal employment duties. In a report dated February 25, 2016, Dr. McCarron described
appellant’s employment as a postal carrier and noted that she reported falling down several stairs
approximately 15 years prior in the performance of her job duties. Appellant developed neck pain
which she attributed to this fall and eventually underwent a cervical fusion. After several years,
she again developed neck pain and had MRI scan documentation of degenerated discs above and
below her fusion site. Dr. McCarron diagnosed degenerative cervical disc disease at C4-5 and C67 based on MRI scan and cervical stenosis at C4-5 shown on x-ray. He noted, “Historically, the
fall was temporally related to the cervical disc injury at C5-6 as a causative factor. I have no
further documentation beside [appellant’s] history regarding this injury. The patient has two workrelated factors that would contribute to the permanent aggravation of the cervical degenerative disc
disease. One is driving and one is lifting.”
On October 22, 2015 appellant underwent a cervical MRI scan which demonstrated
multilevel degenerative spondylosis most prominent at C4-5 and C6-7 with mild spinal canal
stenosis at both of these levels.
Beginning on July 7, 2014 Dr. Christopher K. Mocek, a Board-certified anesthesiologist,
completed a series of reports noting appellant’s symptoms of central neck pain and bilateral
shoulder pain. In a note dated November 3, 2014, he indicated that her shoulder pain was
associated with numbness and weakness. Appellant underwent a bone density scan on
November 10, 2014 which demonstrated osteopenia of the lumbar spine and right femoral neck.
Dr. Mocek examined her on March 2, 2015 and again on April 27, 2015 due to neck and shoulder
pain. On August 24, 2015 appellant reported intense neck pain with bilateral shoulder pain
radiating to both arms. Dr. Mocek found that she had numbness and tingling in both upper
extremities. He diagnosed thoracic spine pain, cervical radiculitis, and cervical spine pain. In his
October 19, 2015 note, Dr. Mocek indicated that appellant was experiencing low back pain
radiating to her legs and feet. On December 7, 2015 he reported that she was experiencing both
low back and neck pain as well as bilateral shoulder pain. Dr. Mocek repeated his diagnoses.
By decision dated March 31, 2016, OWCP denied appellant’s occupational disease claim.
It found that she had not submitted sufficient medical evidence to establish a causal relationship
between her current cervical conditions and her job duties.
On April 18, 2016 appellant requested reconsideration from OWCP. By decision dated
May 19, 2016, OWCP declined to reopen her claim for consideration of the merits. It noted that
appellant had submitted two compact discs which were unreadable.
On May 27, 2016 appellant requested reconsideration of the May 19, 2016 OWCP decision
and submitted additional medical records. In a report dated April 13, 2016, Dr. McCarron opined
that driving, lifting, casing mail, and reaching put force on the cervical spine. He opined that the
more weight that was lifted the more physical stress placed through the cervical discs.
Dr. McCarron opined that driving and lifting were two work-related factors that would contribute

3

to the permanent aggravation and causation of cervical degenerative disc disease. He concluded
that appellant’s x-rays and MRI scan both documented her degenerative disc disease.
On June 7, 2011 Dr. Richard D. Peek, a Board-certified orthopedic surgeon, examined
appellant due to lower back pain, neck pain, and headaches which began in 2003. He diagnosed
severe cervical degenerative disc disease at C6-7 and C4-5 with a solid C5-6 fusion. Dr. Peek
examined appellant on August 12, 2011 due to bilateral full spine pain. He diagnosed degeneration
of cervical intervertebral disc.
On August 20, 2012 Dr. Mocek examined appellant due to neck and bilateral shoulder pain.
He noted that she was involved in a motor vehicle accident approximately two to three weeks prior
to his examination, and that she believed that she had “whiplash.” On March 11, 2013 Dr. Mocek
diagnosed cervical radiculitis and shoulder pain. In a note dated June 3, 2013, he diagnosed
cervical spondylosis. On December 12, 2013 appellant reported increased pain due to pulling a
jammed mail truck door. Dr. Mocek diagnosed cervical spondylosis, upper radiculitis, and pain
in the thoracic spine on January 9, 2014. On November 3, 2014 he diagnosed thoracic spine pain,
cervical radiculitis, and cervical spine pain. Appellant underwent cervical x-rays on November 10,
2014 which demonstrated an anterior interbody fusion at C5-6, degenerative changes at C4-5 and
C5-6 with minimal retrolisthesis of C4 on C5, but no subluxations.
By decision dated August 24, 2016, OWCP denied modification of its March 31, 2016
merit decision, finding that appellant had not submitted sufficient medical opinion evidence to
establish that her diagnosed condition was due to her employment duties.
Appellant appealed to the Board and, by decision dated March 1, 2017,3 the Board affirmed
OWCP’s August 24, 2016 decision. The Board found that she had submitted insufficient
rationalized medical opinion evidence to establish causal relationship between her diagnosed
cervical degenerative disc disease and her accepted employment duties.
On March 14, 2017 appellant requested reconsideration of the March 1, 2017 merit
decision. She argued that Dr. McCarron’s April 13, 2016 report established her occupational
disease claim.
By decision dated July 27, 2017, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant merit review.
On December 18, 2017 appellant again requested reconsideration of the March 1, 2017
merit decision. In a November 29, 2017 note, Dr. Kenneth M. Rosenzweig, a Board-certified
orthopedic surgeon, noted that she ruptured a disc in her cervical spine at C5-6 more than 15 years
previously, had undergone a single level spinal fusion at that level, and had developed adjacent
level syndrome with progression of degenerative disc disease at the adjacent levels. He noted
appellant’s job duties of lifting, pushing, pulling, reaching, and lifting overhead. Dr. Rosenzweig
opined that chronic repetitive use of stiff body parts can result in the progression of degeneration
of those body parts manifested as inflammation and swelling. He found that pain and stiffness
were the unavoidable consequences of a spinal fusion resulting in adjacent level pathology
3

Id.

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particularly if one were required to reach, push, pull, or perform heavy lifting. Dr. Rosenzweig
opined that all of these activities were known to cause strain to the neck and aggravation to adjacent
level syndrome. He found that appellant had a permanent aggravation of her underlying cervical
condition due to her employment duties.
By decision dated May 29, 2018, OWCP denied modification of its prior decision, finding
that appellant had not submitted rationalized medical opinion evidence.
On September 18, 2018 appellant requested reconsideration and submitted additional
medical evidence. In a note dated August 24, 2018, Dr. Rosenzweig reported that she underwent
a noninstrumented interbody fusion at C5-6 and was experiencing ongoing neck pain. He
performed a physical examination and found minimal neck flexion and extension. Dr. Rosenzweig
reviewed appellant’s cervical x-rays and found spinal stenosis, fusion at C5-6, collapsed discs at
C4-5 and C6-7, and arthritis. He diagnosed adjacent level syndrome with advanced degenerative
disc disease and facet hypertrophy at levels above and below. Dr. Rosenzweig opined that
appellant’s degree of hypertrophic changes and degenerative changes were consistent with
repetitive trauma as a rural carrier due to reaching, pushing, pulling, and overhead activities. He
noted that her changes were atypical and represented the results of the initial fusion and the
occupational hazard of intensive upper extremity and neck use.
By decision dated October 15, 2018, OWCP denied modification, finding that appellant
had not submitted rationalized medical evidence establishing causal relationship between her
diagnosed cervical degenerative disc disease and her accepted factors of employment.
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,4 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.5 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.6
In an occupational disease claim, appellant’s burden of proof requires submission of 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 condition for which compensation is

4

T.H., Docket No. 18-1585 (issued March 22, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

T.H., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden,
Sr., 40 ECAB 312 (1988).
6
T.H., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).

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claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical spine
conditions causally related to accepted factors of her federal employment.
Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s August 24, 2016 decision because the Board
considered that evidence in its March 1, 2017 decision and found it insufficient to establish causal
relationship. Findings made in prior Board decisions are res judicata absent any further review by
OWCP under section 8128 of FECA.11 The Board notes that it has been accepted that appellant
sustained employment factors, i.e., her rural carrier duties which include casing mail above
shoulder height, lifting packages and trays of mail, loading her vehicle, pushing buggies, and
delivering mail. However, appellant has not met her burden of proof to establish causal
relationship between a diagnosed medical condition and the accepted employment factors.
In a November 29, 2017 note, Dr. Rosenzweig reported that 15 years previously appellant
had ruptured a disc in her cervical spine at C5-6, had undergone a single level spinal fusion at that
level, and had since developed adjacent level syndrome with progression of degenerative disc
disease. He opined that chronic repetitive use of stiff body parts can result in progression of
degenerative of those body parts manifested as inflammation and swelling. Dr. Rosenzweig found
that pain and stiffness were the unavoidable consequences of a spinal fusion resulting in adjacent
level pathology particularly if one were required to reach, push, pull, or perform heavy lifting. He
opined that all of these activities were known to cause strain to the neck and aggravation to adjacent
7

T.H., id.; R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

8

T.H., id.; I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

9

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.W., Docket No. 18-1624 (issued April 3, 2019); L.C., Docket No. 18-1707 (issued April 3, 2019); C.D., Docket No.
17-2011 (issued November 6, 2018); Victor J. Woodhams, id. at 345 (1989).
11

See B.R., Docket No. 17-0294 (issued May 11, 2018).

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level syndrome. Dr. Rosenzweig found that appellant had a permanent aggravation of her
underlying cervical condition due to her employment duties. While he attributed her diagnosed
conditions to her employment duties, his opinion was merely conclusory.12 The Board has held
that a medical opinion is of limited probative value if it is speculative and conclusory in nature.13
A medical opinion must provide an explanation of how the specific employment factors
physiologically caused or aggravated the diagnosed conditions.14 Without medical reasoning
explaining how the accepted employment activities caused or contributed to the diagnosed
condition(s), Dr. Rosenzweig’s report is insufficient to establish the claim.
In a note dated August 24, 2018, Dr. Rosenzweig reported that appellant underwent a
noninstrumented interbody fusion at C5-6 and was experiencing ongoing neck pain. He diagnosed
adjacent level syndrome with advanced degenerative disc disease and facet hypertrophy above and
below. Dr. Rosenzweig opined that appellant’s degree of hypertrophic changes and degenerative
changes were consistent with repetitive trauma as a rural carrier due to reaching, pushing, pulling,
and overhead activities. He noted that her changes were atypical and represented the results of the
initial fusion and the occupational hazard of intensive upper extremity and neck use.
Dr. Rosenzweig indicated that there was a causal relationship between appellant’s
employment activities and aggravation of her underlying cervical conditions, but he did not clearly
describe the medical mechanism through which specific work activities could have caused or
aggravated the diagnosed medical conditions. The Board has held that a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.15 Dr. Rosenzweig indicated that
his findings were “consistent” with appellant’s work duties, but he did not adequately explain his
reasoning for reaching such a conclusion. His August 24, 2018 note contains conclusory opinions
without the necessary rationale explaining how and why the employment factors were sufficient
to result in or aggravate the underlying medical condition. The Board has held that such an opinion
is insufficient to meet a claimant’s burden of proof to establish a claim.16
As the evidence of record does not contain sufficient rationale explaining causal
relationship between the claimed condition and the accepted employment factors, the Board finds
that appellant has not met her burden of proof.
Appellant may submit additional evidence, together 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.

12

R.G., Docket No. 18-1778 (issued April 9, 2019); L.C., supra note 10; R.V., Docket No. 18-1037 (issued
March 26, 2019); B.H., Docket No. 18-1219 (issued January 25, 2019).
13

R.G., id.; S.B., Docket No. 18-1296 (issued January 24, 2019).

14

R.G., id.; V.T., Docket No. 18-0881 (issued November 19, 2018).

15

R.G., id.; C.M., Docket No. 14-0088 (issued April 18, 2014).

16

R.G., id.; L.C., supra note 10; R.V., supra note 12; J.D., Docket No. 14-2061 (issued February 27, 2015).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish cervical spine
conditions causally related to accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1098
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On July 14, 2021 appellant filed a timely appeal from a January 21, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days elapsed
from OWCP’s last merit decision dated October 9, 2019, to the filing of this appeal, pursuant to

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, appellant asserted that oral argument should be granted because OWCP’s
decisions were based on inaccurate and incorrect information and the decisions failed to provide reasons why her
arguments and evidence submitted were insufficient to modify OWCP’s denial of her claim. The Board, in exercising
its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. As such, the oral argument request is denied , and this decision is
based on the case record as submitted to the Board.

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On June 9, 2005 appellant, then a 50-year-old management analyst, filed an occupational
disease claim (Form CA-2) indicating that years of repetitive typing, writing, and use of the adding
machine and computer caused or aggravated cervical spine arthritis and bilateral carpal tunnel
syndrome (CTS) while in the performance of duty. She first became aware of her claimed
conditions and its relationship to her federal employment on March 30, 2005. OWCP accepted
the claim for bilateral CTS, bilateral lesion of the ulnar nerve, and non-disabling mild dysthymic
disorder. Appellant underwent OWCP-approved left carpal tunnel and cubital tunnel release on
January 11, 2007 and right carpal tunnel and cubital tunnel release on June 7, 2007. She returned
to full-duty work with use of voice-activated software on February 14, 2008. OWCP paid
appellant intermittent wage-loss compensation on the supplemental rolls commencing
March 30, 2005.4
On June 22, 2010 appellant filed a notice of recurrence (Form CA-2a) claiming a
recurrence of the need for medical treatment due to a change or worsening of her accepted workrelated conditions. She noted that she received several accommodations, but she had been doing
“an overwhelming amount of keyboarding and using [her] hands to lift, turn pages, write, etc. at
work,” which aggravated her approved bilateral carpal and cubital tunnel syndrome conditions,
and caused stress and depression. Appellant indicated that the shooting finger and arm pain caused
her to take more daily pain medications, including prescription pain medications. She also
indicated that her doctors advised her to retire as she was totally disabled from performing her job.
In a July 12, 2010 letter, OWCP advised that, since appellant did not claim any lost time from

2

5 U.S.C. § 8101 et seq.

3

Docket No. 15-548 (issued May 13, 2015).

4

By decision dated October 22, 2008 and corrected on November 14, 2008, OWCP issued a schedule award for 25
percent permanent impairment of the right upper extremity and 26 percent permanent impairment of the left upper
extremity for which appellant received a requested lump-sum award on January 13, 2009. Appellant requested
increased schedule awards, which OWCP denied in decisions dated October 30, 2009 and February 17, 2010.

2

work, she had not experienced a true recurrence. It noted her claim remained open for medical
treatment of her accepted conditions. 5
On December 2, 2010 appellant submitted a Form CA-2a claiming a recurrence of
disability and the need for medical treatment, wherein she listed the date of recurrence as June 22,
2010 and related that she had stopped work on July 27, 2010. By decision dated January 12, 2012,
OWCP denied the alleged recurrence of June 22, 2010. The weight of the medical evidence was
accorded to Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon and OWCP second opinion
physician. The claim remained open for medical treatment of the accepted co nditions.
On January 30, 2012 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. By decision dated May 23, 2012, an OWCP hearing
representative vacated the January 12, 2012 decision and remanded the case for further
development, including the issuance of an updated statement of accepted facts (SOAF) and referral
to a Board-certified psychiatrist for examination and evaluation.
Following further development, appellant underwent a second opinion psychiatric
examination on December 19, 2012 by Dr. Dennis M. Young, a Board-certified psychiatrist, who
provided reports dated December 22, 2012 and February 7, 2013. Dr. Young opined that
appellant’s depression was not the result of pain associated with the work injury.
By decision dated March 28, 2013, OWCP denied appellant’s recurrence claim as she had
not established that she was disabled due to a material change/worsening of her accepted workrelated conditions. It also found that her diagnosed depression was not causally related to the
original occupational conditions, but rather was self-generated as a result of her perception that
she was an undervalued and marginalized employee.
On March 14, 2014 appellant, through counsel, requested reconsideration based on new
evidence from Dr. John R. Lion, a Board-certified psychiatrist. OWCP subsequently declared a
conflict in medical opinion between Dr. Young and Dr. Lion, who opined, in his February 3, 2014
report, that appellant’s depression was the result of her work injury.
OWCP referred appellant to Dr. Bruce M. Smoller, a Board-certified psychiatrist, for an
impartial medical examination and evaluation as to whether her employment-related conditions
contributed to or caused a psychiatric condition. In a July 27, 2014 report, Dr. Smoller, serving as
the impartial medical examiner (IME), reviewed a SOAF, examined appellant’s medical record
and appellant, and noted the history of injury. He recounted interview findings and provided an
impression of mild dysthymia on a fair to good level of functioning. Dr. Smoller opined that
appellant’s dysthymia did not need further medical treatment, that she had reached maximum
medical improvement, and that no further therapy treatment was required. He reiterated his
opinion that she was not disabled from work due to the psychiatric condition.

5

On July 31, 2010 appellant voluntarily retired.

3

By decision dated August 22, 2014, OWCP accepted the additional condition of nondisabling mild dysthymic disorder. Further treatment for the newly accepted condition was not
authorized based on Dr. Smoller’s July 27, 2014 impartial medical report.
Also, by decision dated August 22, 2014, OWCP affirmed the March 28, 2013 decision in
part to reflect that appellant had not established her recurrence claim due to a material change or
worsening of her accepted work-related conditions.
Appellant appealed to the Board on January 15, 2015. By decision dated May 13, 2015,
the Board affirmed OWCP’s August 22, 2014 decision. The Board found that Dr. Smoller’s
opinion was entitled to the weight of the medical evidence as an IME as he provided a rationalized
medical opinion, which established that while there was psychological component to appellant’s
work-related condition it did not disable her from working on July 27, 2010. The Board further
found that there was no probative medical opinion evidence, which established that appellant had
a material change in her medical condition such that she was totally disabled as a result of her
accepted work-related conditions beginning July 27, 2010.6
Appellant subsequently filed a series of requests for reconsideration. In decisions dated
April 10, 2017, August 10, 2018, and October 9, 2019, OWCP denied modification of the merits
of the claim. The decisions detailed appellant’s legal and factual arguments and found no error or
evidence to support the allegations raised. The decisions further found that the medical evidence
of record remained unsupported by rationalized medical evidence to demonstrate that the accepted
conditions prevented appellant from working on or after July 27, 2010 causally related to the
accepted March 30, 2005 employment injury.
On September 9, 2020 appellant requested reconsideration. In an accompanying letter also
dated September 2, 2020, she requested reconsideration and a “face to face hearing.” Appellant
contended that OWCP’s merit reviews were based on inaccurate and incorrect information and
that OWCP had failed to review the evidence and arguments she provided in all her reconsideration
requests. She argued that Dr. Young’s opinion was relevant and supported her disability claim,
the opinion of Dr. Lion, her physician, supported Dr. Young’s opinion, and Dr. Smoller’s report
was vague and speculative. Appellant also wanted to know why OWCP did not find certain facts,
circumstances and evidence relevant to the fact that she had to retire on disability. She alleged
that her supervisor and the employing establishment ignored her initial accommodation requests
only to grant the same request over a year later. The delay of such accommodation by appellant’s
supervisor and the employing establishment violated the law and the ineffective accommodations
caused appellant excruciating physical pain and mental anxiety, continued use of addicting drugs,
and having to perform repetitive motion that caused her recurrence. The only evidence submitted
in support of her reconsideration request was a petition for writ of certiorari in the Supreme Court
of the United States.
In November 18 and December 8, 2020 letters, OWCP informed appellant that, as her
September 2, 2020 letter indicated that she was requesting both a reconsideration and “face to face
hearing,” she could only request one method of appeal. Appellant was informed of her appeal
6

Supra note 3.

4

rights and provided 10 days to respond to the request. On December 11, 2020 she advised that she
was requesting reconsideration.
By decision dated January 21, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or 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. 8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 22, 2014 merit decision. The Board
considered that evidence in its May 13, 2015 decision. Findings made in prior Board decisions

7

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
8

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

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

are res judicata absent further review by OWCP under section 8128 of FECA. 12 The Board,
therefore, will not review the evidence or arguments addressed in its prior appeal.
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, the Board finds that it did
not advance a relevant legal argument not previously considered by OWCP. Appellant’s
September 2, 2020 letter contained variations of legal and factual arguments previously
considered, which revolved around the conflict in medical evidence with Dr. Young and the fact
Dr. Smoller’s opinion was accorded the special weight provided an IME. The Board previously
reviewed the record, detailed the medical evidence as to how the conflict in medical arose and
discussed why the reports from appellant’s physicians were not sufficient to establish her
recurrence claim. The Board also specifically found that OWCP properly afforded the special
weight of the medical opinion evidence to Dr. Smoller who found that appellant had a nondisabling
dysthymic disorder. As noted above, the findings made in prior Board decisions are res judicata
absent further review by OWCP under section 8128 of FECA. 13 In its previous decisions OWCP
also addressed appellant’s contentions with regard to the employing establishment’s
accommodations, testimony, and alleged violations under other statues and found no evidence of
error as it related to the subject recurrence claim. Thus, appellant has not raised any new or
relevant legal and factual arguments not previously considered. Consequently, she is not entitled
to further review of the merits of her claim based on either the first or second above -noted
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request. 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. 14 Appellant submitted a petition for writ of certiorari in the Supreme Court of
the United States. This evidence does not address the subject recurrence claim and, thus, does not
constitute a basis for reopening the claim. 15 No other evidence was submitted. As appellant failed
to provide relevant and pertinent new evidence, she is not entitled to a merit review based on the
third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

K.K., Docket No. 20-1394 (issued July 26, 2021); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

13

Id.

14

L.M., Docket No. 20-0315 (issued October 8, 2021); A.J., Docket No. 20-0926 (issued January 26, 2021);
Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).
15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, New Castle, DE,
Employer
__________________________________________

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

Docket No. 13-1654
Issued: December 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 1, 2013 appellant, through counsel, filed a timely appeal from a March 14, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than an eight percent right arm or two percent
left arm permanent impairment.
FACTUAL HISTORY
On February 1, 2011 appellant, then a 50-year-old clerk, filed an occupational claim
(Form CA-2) alleging right shoulder and arm conditions as a result of repetitive activity in her
1

5 U.S.C. § 8101 et seq.

federal employment. She previously had filed an occupational claim for a left hand condition on
March 19, 2011 due to work on a flat sorting machine. The cases were administratively
combined. The statement of accepted facts (SOAF) notes that the claims were accepted for right
shoulder rotator cuff tear; bilateral carpal tunnel syndrome; bilateral hand sprains; and right
trigger finger. Appellant received compensation for intermittent disability from May 16 to
September 30, 2011.
On April 10, 2012 appellant filed a claim for a schedule award. She submitted an
April 18, 2012 report from Dr. Damian Andrisani, a Board-certified orthopedic surgeon, who
stated that she was one year status post right rotator cuff repair.
By decision dated May 17, 2012, OWCP denied appellant’s claim for a schedule award.
Appellant requested a hearing before an OWCP hearing representative. In a report dated
June 5, 2012, Dr. Nicholas Diamond, an osteopath, reviewed a history of treatment and provided
results on examination.
Dr. Diamond noted that a February 5, 2003 electromyogram
(EMG)/nerve conduction study revealed mild left carpal tunnel syndrome, the right was within
normal limits. With respect to the right arm under the American Medical Association, Guides to
the Evaluation of Permanent Impairment (sixth edition, hereinafter the A.M.A., Guides),
appellant had a six percent permanent impairment based on loss of range of flexion and
abduction motion in the right shoulder. Dr. Diamond found that under Table 15-23 appellant
also had a 4 percent impairment to the right arm for entrapment neuropathy of the median nerve,
resulting in a 10 percent right arm impairment. As to the left arm, Dr. Diamond opined that
appellant had a two percent impairment due to entrapment neuropathy.
A hearing was held on September 20, 2012.
By decision dated September 26, 2012, the hearing representative remanded the case to
combine the records of the upper extremity claims and to refer the case to an OWCP medical
adviser for an opinion as to permanent impairment.
The case was referred to an OWCP medical adviser for review. In a report dated
October 22, 2012, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and medical
adviser, concurred with determination of a six percent right arm impairment based on right
shoulder loss of range of motion and a two percent left arm impairment. As to the impairment
for the right arm based on entrapment neuropathy, Dr. Berman applied Table 15-23 to rate a two
percent impairment. The medical adviser opined that the grade modifier for test findings was
zero because test findings were normal.
By decision dated November 14, 2012, OWCP granted schedule awards for an eight
percent right arm impairment and a two percent left arm impairment. The period of the awards
was 31.20 weeks from June 5, 2012.
Appellant requested a hearing before an OWCP hearing representative, which was held
on February 5, 2013. Her representative contended that the opinion of an OWCP medical
adviser could not be the weight of the medical evidence.

2

By decision dated March 14, 2013, the hearing representative affirmed the November 14,
2012 schedule award decision. The hearing representative found that OWCP’s medical adviser’s
opinion represented the weight of the medical evidence.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.2 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.5 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.6
ANALYSIS
In the present case, appellant submitted a June 5, 2012 report from Dr. Diamond, rating a
10 percent right arm impairment, based on 6 percent for shoulder loss of motion, and 4 percent
for entrapment neuropathy under Table 15-23. As to the left arm Dr. Diamond opined that
appellant had a two percent impairment under Table 15-23. By report dated October 22, 2012,
Dr. Berman agreed with Dr. Diamond as to loss of shoulder range of motion and the left arm
impairment based on entrapment neuropathy, of two percent. He disagreed with respect to the
entrapment neuropathy impairment on the right, rating eight percent impairment.
The impairment based on loss of shoulder motion is determined under Table 15-34.
Dr. Diamond reported 165 degrees of flexion, which is a three percent arm impairment, and 150
degrees of abduction, which is also a three percent impairment.7 An adjustment may be made
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

FECA Bulletin No. 09-03 (issued March 15, 2009).

5

A.M.A., Guides 448-50.

6

Id.

7

Id. at 475, Table 15-34.

3

under Table 15-35 and Table 15-36 if the functional history grade modifier is higher than the
grade modifier based on the degree of shoulder impairment.8 In this case, the six percent total
impairment based on loss of range of motion is a grade modifier one under Table 15-35.
Dr. Diamond found the functional history grade modifier was also one, and therefore no
adjustment was made. OWCP’s medical adviser concurred and there is no evidence of a greater
impairment in this regard.
As to the left arm impairment under Table 15-23, Dr. Diamond assigned grade modifiers
of one for test findings (conduction delay), history (mild intermittent symptoms) and physical
findings (normal). The average is therefore one, resulting in a default impairment of two percent
under Table 15-23. Dr. Diamond found that the functional scale was also one (mild) and there
was no adjustment from the default value. Dr. Berman agreed and the Board finds no evidence
of left arm impairment greater than two percent.
The disagreement between Dr. Berman and Dr. Diamond pertains to the right side
entrapment neuropathy impairment rating as to the grade modifier for test findings.
Dr. Diamond assigned a grade modifier of one, which according to Table 15-23 is for test
findings that show a “conduction delay (sensory and/or motor).” Dr. Berman pointed out that the
only relevant test findings addressed by Dr. Diamond were 2003 EMG/nerve conduction tests
that were “within normal limits” for the right wrist. Dr. Diamond did not explain the basis for
assigning grade modifier one for test findings and his opinion is of diminished probative value.
The medical adviser found that grade modifier zero was appropriate for test findings
which he then applied under Table 15-23.9 The opinion of Dr. Berman, however, is also of
diminished probative value. The Board notes that the A.M.A., Guides clearly stated, with
respect to application of Table 15-23 and other tables under section 15.4, “If test findings are
grade modifier zero (i.e., electrodiagnostic testing is normal or does not meet standards,) do not
use this section.”10 (Emphasis added.) According to the A.M.A., Guides, when conduction
testing has not been performed or does not met this section’s (15.4) diagnostic criteria, the case
should be evaluated under the diagnosis-based impairments with the appropriate regional grid.11
Neither Dr. Diamond nor Dr. Berman addressed this aspect of the A.M.A., Guides. The
case will be remanded to OWCP to obtain a medical report that adequately evaluates appellant’s
right arm impairment based on an entrapment neuropathy.12 After such further development as it
deems necessary, an appropriate decision should issue as to appellant’s right arm permanent
impairment.
8

See id. at 477.

9

The medical adviser also applied a grade modifier of zero for history, even though he acknowledged mild
intermittent symptoms and under Table 15-23 this is grade modifier one.
10

A.M.A., Guides 448.

11

Id. at 445-46.

12

When the attending physician and OWCP’s medical adviser provide reports of diminished probative value
regarding the application of the A.M.A., Guides, the case is remanded for further development. See T.B., Docket
No. 10-1985 (issued June 3, 2011); L.J., Docket No. 10-1263 (issued March 3, 2011).

4

On appeal, appellant argued that a conflict under 5 U.S.C. § 8123(a) was created between
Dr. Diamond and OWCP’s medical adviser. For the reasons noted above, the medical reports
were of diminished probative value with respect to the right arm entrapment neuropathy
impairment and not sufficient to create a conflict.13
CONCLUSION
The Board finds that appellant has no more than two percent left arm impairment. The
case is not in posture for decision with respect to the right arm impairment due to entrapment
neuropathy.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision of the Board.
Issued: December 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

13

See Mary L. Henninger, 52 ECAB 408 (2001).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Springfield, VA, Employer
__________________________________________

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

Docket No. 16-0342
Issued: July 26, 2016

Case Submitted on the Record

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

JURISDICTION
On December 16, 2015 appellant, through counsel, filed a timely appeal from a
November 3, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed since the last merit decision dated February 18, 2015,

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.

to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has lack jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 24, 2014 appellant, then a 50-year-old account technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 19, 2014 she sustained an injury when she was
walking to the garage and the guard closed the gate on her as she was entering the worksite. She
reported getting hit in the nose by the gate and sustaining a neck and shoulder injury, nose
fracture, extreme swelling of the face, and a bruised neck and collar bone. Appellant first sought
treatment on March 19, 2014.
In a March 21, 2014 diagnostic report, Dr. Jocelyn Scheinert, a Board-certified diagnostic
radiologist, reported that an x-ray of the nasal bone revealed no fracture.
Handwritten treatment notes dated March 26 through May 21, 2014 from Central
Medical Services of Westrock were also submitted. These reports did not contain a legible
signature.
In an April 29, 2014 progress note, Dr. Matthew Clarke, Board-certified in family
medicine, noted treatment for the neck and back.
In a May 21, 2014 Attending Physician’s Report (Form CA-20) and prescription note,
John Mullin, a certified physician assistant, documented appellant’s treatment.
In a May 13, 2014 report, Dr. Lily Belfi, a Board-certified diagnostic radiologist,
provided diagnostic findings pertaining to an x-ray of the cervical spine. Her impression of mild
grade 1 retrolisthesis of C4-5, moderate left-sided neural foraminal narrowing at C4-5, and mild
left-sided neuroforaminal narrowing at C3-4 and C5-6.
In a June 18, 2014 note, Dr. Jean Xiao, Board-certified in internal medicine, reported that
appellant was unable to work due to a work-related condition sustained on March 19, 2014. He
diagnosed neck and back pain and provided work restrictions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence after OWCP rendered its November 3, 2015
nonmerit 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 for the first time by the Board on
appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35,
36 n.2 (1952).

2

By letter dated June 24, 2014, OWCP notified appellant that her claim was initially
administratively handled to allow medical payments as her claim appeared to involve a minor
injury resulting in minimal or no lost time from work. However, the merits of her claim had not
been formally considered and her claim had been reopened because a claim for wage loss had
been received. Appellant was advised of the medical and factual evidence needed to support her
claim and was afforded 30 days to respond.
In a June 18, 2014 narrative report, Dr. Xiao reported that appellant was employed as an
accounting technician and sustained a work-related injury on March 19, 2014. Appellant
sustained injury to her neck, back, face, shoulder, and hands when a gate fell on her.
In a June 29, 2014 State of New York Workers’ Compensation Form, Dr. Xiao reported
that appellant was an accounting technician and was injured on March 19, 2014 when she was
performing accounting work. He diagnosed unspecified backache, cervicalgia, and unspecified
derangement of joint of shoulder region. When asked if the incident as described by appellant
was the competent medical cause of her injury/illness, Dr. Xiao checked the box marked “yes.”
In a July 9, 2014 Form CA-20, Dr. Michael Hearns, Board-certified in occupational
medicine, diagnosed traumatic neck pain, headaches, bilateral shoulder pain, and chest wall pain.
He noted the date of injury as March 19, 2014 when appellant was hit by a gate at her job.
Dr. Hearns checked the box marked “no” when asked if the condition was caused or aggravated
by the employment activity.
By decision dated July 25, 2014, OWCP denied appellant’s claim as the evidence of
record was insufficient to establish that she sustained an injury because she did not submit any
medical evidence containing a medical diagnosis in connection with the accepted March 19,
2014 employment incident. It noted that the medical evidence submitted contained a diagnosis
of “pain” which is a symptom, but not a diagnosed medical condition.
On August 11, 2014 appellant requested review of the written record before an OWCP
Branch of Hearings and Review hearing representative.
In support of her claim, appellant submitted medical reports dated March 19, 2014 from
Roosevelt Hospital. In the March 19, 2014 report, Dr. Resa Lewiss, Board-certified in
emergency medicine, reported that appellant was at work when a gate hit her in the nose and left
shoulder. She diagnosed contusion at multiple sites and noted the external cause of injury as
accident on industrial premises.
Handwritten treatment notes dated March 26 through August 13, 2014 from Central
Medical Services of Westrock were also resubmitted. While many of the reports did not contain
a legible signature, it appears that some of the reports were signed by PA Mullin.
In a June 5, 2014 diagnostic report, Dr. Belfi reported that an x-ray of the
acromioclavicular joint, facial bones, left shoulder, right shoulder, chest, and lumbar spine
revealed no acute fracture or dislocation.

3

In an August 11, 2014 Form CA-20, Dr. Hearns diagnosed herniated disc of the neck and
back. He checked the box marked “no” when asked if the condition was caused or aggravated by
the employment activity noting that appellant was hit by a gate.
Physical therapy notes dated July 14 through 24, 2014 were submitted documenting
treatment.
In a September 26, 2014 report, Dr. Puneet S. Pawha, a Board-certified diagnostic
radiologist, provided findings pertaining to a magnetic resonance imaging scan of the cervical
spine.
In an October 9, 2014 report, Dr. Houman Danesh, Board-certified in physical medicine
and rehabilitation, diagnosed cervical radiculopathy and left shoulder impingement.
By decision dated February 18, 2015, the hearing representative affirmed the July 25,
2014 decision finding that the evidence of record failed to provide a medical diagnosis which
could be reasonably attributed to the March 19, 2014 employment incident.
By letter dated June 12, 2015 and received by OWCP on June 25, 2015 appellant,
through counsel, requested reconsideration. Counsel argued that the medical reports submitted
were not properly considered or developed by OWCP which established that her injury was
causally related to the March 19, 2014 employment incident. He referenced Dr. Xiao’s June 19,
2014 report as the basis for his claim. Counsel noted that the physician provided a diagnosis of
cervicalgia and also established that the diagnosed medical condition was causally related to the
work injury. He asserted that OWCP placed an unreasonably high burden of proof upon
appellant and that it had a duty to assist in the development of the evidence. No other evidence
was submitted with counsel’s arguments.
By decision dated November 3, 2015, OWCP denied appellant’s request for
reconsideration, finding that she neither raised substantive legal questions nor included relevant
and pertinent new evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.5

4

D.K., 59 ECAB 141 (2007).

5

K.H., 59 ECAB 495 (2008).

4

ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In the June 12, 2015 application for reconsideration, counsel did not establish that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Counsel for appellant argued that Dr. Xiao’s June 29, 2014 report, which
established a diagnosed condition causally related to the March 19, 2014 employment incident,
was not properly reviewed. He further argued that there was an unreasonably high burden of
proof on her to establish her claim and that OWCP should develop the evidence.
The Board finds that counsel’s argument has no reasonable color of validity.6 The
claimant has the burden of establishing by the weight of reliable, probative, and substantial
evidence that the condition for which compensation is sought is causally related to a specific
employment incident or to specific conditions of the employment.7 As part of this burden, the
claimant must present rationalized medical opinion evidence, based upon a complete and
accurate factual and medical background, establishing causal relationship.8 The Board notes that
OWCP provided a June 24, 2014 development letter advising appellant of the evidence required
to establish her claim. Furthermore, OWCP properly reviewed Dr. Xiao’s report in its July 25,
2014 decision finding that it was insufficient to establish appellant’s claim. Counsel did not
establish an error on a specific point of law or advance a relevant legal argument not previously
considered by OWCP.9 As such, appellant was not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under section 10.606(b)(3).10
The Board notes that the underlying issue in this case was whether appellant sustained a
diagnosed condition causally related to the accepted March 19, 2014 employment incident. This
is a medical issue which must be addressed by relevant medical evidence.11 A claimant may
obtain a merit review of an OWCP decision by submitting relevant and pertinent new evidence.

6

See L.H., 59 ECAB 253 (2007) (while the reopening of a case may be predicated solely on a legal premise not
previously considered, such reopening is not required where the legal contention does not have a reasonable color of
validity).
7

Michael E. Smith, 50 ECAB 313 (1999).

8

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
9

A.T., Docket No. 14-417 (issued June 25, 2014).

10

20 C.F.R. § 10.606(b)(3).

11

See Bobbie F. Cowart, 55 ECAB 746 (2004).

5

Appellant failed to submit any such new evidence addressing a medical diagnosis and causal
relationship in support of her claim.12
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2016
Washington, DC

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

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

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

12

C.B., Docket No. 08-1583 (issued December 9, 2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99th
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 18-1280
Issued: March 12, 2019

Case Submitted on the Record

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

JURISDICTION
On June 11, 2018 appellant filed a timely appeal from an April 20, 2018 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 appellant submitted additional evidence on appeal. 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 appellant met her burden of proof to establish cervical, lumbar, and
shoulder conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her preexisting
degenerative disc disease as a result of constant sitting, viewing a computer screen, and inputting
data while in the performance of duty. She indicated that she first became aware of her condition
on December 26, 2012 and realized that it resulted from her federal employment on
September 13, 2013. On the reverse side of the claim form, the employing establishment
controverted appellant’s claim, noting that there was no evidence indicating a work-related injury.
It further noted that she had previously fallen in 2013 and 2014, and that the 2014 fall occurred
outside of her home. Appellant resigned from the employing establishment, effective
March 13, 2015.
In a May 7, 2015 development letter, OWCP acknowledged receipt of appellant’s claim
and advised her of the additional factual and medical evidence needed to establish her claim. It
provided her a factual questionnaire to complete and return. OWCP afforded appellant 30 days to
submit the necessary information. It similarly requested additional factual information from the
employing establishment.
In letters dated May 11 and 12, 2015, the employing establishment controverted appellant’s
claim and asserted that she did not produce any documentation from her medical provider. It also
contended that her previous falls in 2013 and 2014 had no documentation to substantiate the
incident and had no correlation to her work. The employing establishment explained that appellant
had an ergonomic mouse pad, key board, and chair while she performed her duties. It also noted
that she was allowed to take rest breaks and alternate duties as needed.
The employing establishment submitted several statements from appellant’s coworkers
regarding her previous falls in 2013 and 2014.3 It also provided a list of her medical appointments
for which she had requested leave.
OWCP received an unsigned and undated duty status report (Form CA-17), which noted a
description of injury of “constant work on computer, eye, neck, shoulders, hands, [and] wrists.”
In her May 19, 2015 response to the development letter, appellant explained that she was
diagnosed with degenerative disc disease and arthritis from her cervical spine to her thoracic and
lumbar spine areas before she began to work for the employing establishment on August 27, 2012.
She noted that she had not been employed or used computers regularly for the past three years.
Appellant asserted that constant computer usage was a requirement of her federal employment.
3

In a May 11, 2015 statement, S.T., a nurse educator, related that in October 2014 appellant told M.P. that she fell
at home while going to her mailbox. In another statement, J.M., superintendent of education and training, reported
that in 2013 appellant reportedly fell on the sidewalk to the west of building 1305 while she was taking a break.

2

She alleged that she spent six out of eight hours daily on the computer and experienced constant
sitting, staring at the screen, and inputting data. Appellant related that she experienced painful,
cramping hands, eye strain, headaches, back pain, facial pain, and disorientation at times. She
related that she initially sought medical treatment in September 2013 and described the medical
treatment she received. Appellant also explained that on October 23, 2014 she fell down in front
of her house after work, which aggravated her bilateral shoulder and wrist pain.
OWCP also received several diagnostic test reports. An August 27, 2013 x-ray scan report
of the thoracolumbar spine, demonstrated multilevel degenerative disc disease and lower thoracic
facet arthritis. An October 23, 2014 right and left wrist x-ray scan report revealed no acute
fractures. An October 23, 2014 right shoulder x-ray scan report demonstrated a focal irregularity
of the greater tuberosity. A November 6, 2014 cervical spine x-ray report demonstrated
degenerative disc disease at C3-C7. A December 23, 2014 right shoulder magnetic resonance
imaging (MRI) scan report showed a partial-thickness partial width tear of the supraspinatus
tendon, associated with mild infraspinatus muscle atrophy, mild subacromial/subdeltoid bursitis,
and moderate acromioclavicular joint osteoarthritis.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, noted that appellant was
seen for a follow-up examination of complaints of mid-thoracic, left-sided pain. She conducted
an examination and reported abnormal edema bilaterally in appellant’s extremities. Dr. Rodriguez
diagnosed hypertension, osteoarthrosis, gastroesophageal reflux disease, thoracic region strain,
and venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
related that appellant had worked as a nurse for a number of years and complained of chronic pain
issues in her neck and back. Upon physical examination of her left wrist, he observed tenderness
and mild swelling, but overall a normal examination. Examination of appellant’s right shoulder
showed some mild reduction in range of motion and some tenderness over the tuberosity.
Dr. Johnson reported that she had a chronic condition that may have been exacerbated through her
primary care.4
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim. It
accepted her duties as a nurse educator and diagnosis of multilevel degenerative disc disease of
the thoracic and lumbar spine, but denied her claim because the medical evidence of record failed
to establish that her diagnosed condition was causally related to the accepted employment factors.
On June 29, 2015 appellant requested reconsideration and submitted additional medical
evidence.
In reports dated November 6 and December 10, 2014, Dr. Rodriguez related that on
October 20, 2014 appellant fell down and hurt her shoulders. She noted that appellant began to
4

Additional medical reports were also submitted, which described appellant’s medical treatment for other
conditions. In reports dated September 13 and October 21, 2013, Blanca Tenhet, a certified physician assistant,
conducted an examination for appellant’s complaints of loss of circulation on the fingers of her right hand. She
diagnosed hypothyroidism, lumbar disc degeneration, allergic rhinitis, anemia, and depression. In a June 2, 2014
report, Lynn Kasch, a nurse practitioner, related that appellant was seen for complaints of thumb pain and history of
anemia. She reviewed appellant’s history and provided findings on examination.

3

experience severe right shoulder pain, neck pain, and left wrist pain. Dr. Rodriguez reported that
examination showed that appellant’s paraspinal musculature in her lumbar spine was tight with no
midline tenderness. She diagnosed right shoulder pain, cervicalgia, degenerative joint disease, and
fracture.
Dr. Rodriguez further indicated in reports dated January 12 to April 20, 2015 that appellant
was seen for a follow-up examination of her right shoulder. She reported an abnormal examination
of appellant’s extremities. Dr. Rodriguez diagnosed tenosynovitis of the thumb and supraspinatus
tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez reported a
December 26, 2012 date of injury. She reported a history of injury of “continued neck, shoulder,
[and] wrist pain stemming from a fall in Oct 2014, making it difficult for [appellant] to work.”
Dr. Rodriguez noted a history of degenerative joint disease of the spine. She diagnosed
supraspinatus tendon tear and degeneration of the cervical and lumbar spine. Dr. Rodriguez
checked a box marked “yes” indicating that appellant’s condition was caused or aggravated by her
employment. She explained that appellant worked at a desk job, which placed a strain on her
spine, shoulders, and wrist and exacerbated her pain. Dr. Rodriguez related that due to appellant’s
injuries she would need frequent breaks in order to not exacerbate her pain.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision. It found that the medical evidence submitted was insufficient to establish causal
relationship between appellant’s diagnosed medical conditions and the accepted factors of her
federal employment.
On November 20, 2015 appellant requested reconsideration.
In reports dated July 16 to December 14, 2015, Dr. John M. Baldauf, a Board-certified
orthopedic surgeon, related that appellant experienced right shoulder pain after a slip and fall injury
approximately seven months ago. Upon examination of her shoulders, he observed moderate
tenderness and pain. Neer and Hawkins signs were positive. Range of motion was active.
Dr. Baldauf diagnosed shoulder impingement syndrome, bilateral shoulder joint pain, and
lumbago.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision. It found that the medical evidence of record was insufficient to establish that
appellant’s medical conditions were causally related to her accepted employment factors.
On March 21, 2016 appellant again requested reconsideration.
A February 2, 2016 lumbar spine MRI scan report showed mid-bone marrow edema at the
L4 and L5 pedicles, multilevel mild-to-moderate degenerative disc disease and facet disease,
greater at L4-5 and L5-S1, mild spinal canal stenosis at L3-4, moderate spinal canal stenosis at
L4-5, and prominent disc bulging with focal posterior disc herniation at L5-S1.
In a May 11, 2016 statement, appellant related that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate

4

degenerative joint disease to experience a major exacerbation of his or her condition, causing neck,
head, shoulder, arm, and back pain due to a sedentary job.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision. It found that the medical evidence submitted failed to provide a rationalized opinion
explaining causal relationship between her diagnosed conditions and her accepted employment
factors.
On September 7, 2016 appellant requested reconsideration.
In January 15 and April 6, 2016 reports, Susan M. Bell, a registered nurse, indicated that
appellant was treated for complaints of worsening bilateral hip pain. Physical examination
revealed pain in the upper gluteal and sacroiliac joints. Ms. Bell diagnosed lumbago.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for new complaints of low back pain radiating into her bilateral
legs. Upon physical examination of her lumbar spine, he observed tenderness to palpation at the
lower paraspinal level and mild spasms. Straight leg raise testing produced pain on the left.
Dr. Perry diagnosed lumbosacral degenerative disc disease, lumbosacral intervertebral
degeneration, lumbar spinal stenosis, lumbago, and acquired lumbar spondylolisthesis.
Dr. Baldauf continued to treat appellant. In March 16 and 30, 2016 reports, he reviewed
her history and provided physical examination findings. Dr. Baldauf diagnosed right hip joint
pain, lumbosacral degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired
lumbar spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, reviewed appellant’s history and conducted an examination. He reported mildly limited
range of motion of the lumbar spine and tenderness in the lumbosacral junction. Straight leg raise
testing was positive bilaterally. Dr. Wu diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. He noted that he
would perform a nerve root block. Dr. Wu provided additional medical reports dated May 13 and
June 23, 2016 with similar examination findings and diagnoses.
In a January 12, 2018 statement, appellant requested an update on the status of her claim.
She reiterated that her job as a nurse educator aggravated her degenerative joint disease. Appellant
alleged that the October 2014 fall ensured her that the aggravation of the degenerative joint disease
and degenerative joint disease symptoms were permanent.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision. It found that the medical evidence submitted failed to establish that appellant’s
preexisting cervical condition was temporarily or permanently aggravated by any factors of her
federal employment.
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
5

United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
In an occupational disease claim, appellant’s burden requires submission of 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 condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed conditions were causally related to the accepted factors of her federal employment.
Appellant submitted several reports by Dr. Rodriguez. In a July 22, 2014 report,
Dr. Rodriguez examined appellant for mid-thoracic left-sided pain and diagnosed thoracic region
strain. In reports dated from November 6, 2014 to April 20, 2015, she related that on October 20,
2014 appellant fell down and hurt her shoulders. Dr. Rodriguez reported examination findings of
tightness in appellant’s paraspinal musculature of her lumbar spine. She diagnosed right shoulder
supraspinatus tendon tear, cervicalgia, and degenerative joint disease. In a June 12, 2015 Form
CA-20, Dr. Rodriguez reported a history of injury of “continued neck, shoulder, wrist pain
stemming from a fall in Oct 2014, making it difficult for her to work.” She checked a box marked
“yes” indicating that appellant’s condition was caused or aggravated by her employment.

5

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

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

6

Dr. Rodriguez explained that appellant was at a desk job, which placed a strain on her spine,
shoulders, and wrist and exacerbated her pain.
The Board notes that Dr. Rodriguez provided objective findings on examination and
diagnosed right shoulder supraspinatus tendon tear, cervicalgia, and degenerative joint disease.
While Dr. Rodriguez related that appellant’s job sitting at a desk placed a strain on her spine,
shoulders, and wrist and exacerbated her pain, she did not provide medical rationale explaining
how appellant’s various conditions were either caused or aggravated by her employment.11 A
well-rationalized opinion is particularly needed in this case since she also attributed appellant’s
current symptoms to a previous October 2014 fall. Dr. Rodriguez did insufficiently explain how
appellant’s various conditions were caused or aggravated by sitting at a desk job, as opposed to
the October 2014 fall outside of her home. Accordingly, these reports are insufficient to establish
appellant’s claim.12
Appellant also submitted various medical reports dated 2014 to 2016. In an October 28,
2014 report, Dr. Johnson related that she had worked as a nurse for many years and complained of
chronic neck and back pain. In reports dated July 16, 2015 to March 30, 2016, Dr. Baldauf
diagnosed shoulder impingement syndrome, right hip joint pain, lumbosacral degenerative disc
disease with radiculopathy, lumbar spinal stenosis, acquired lumbar spondylolisthesis, and
lumbago. In a February 22, 2016 report, Dr. Perry treated appellant for lumbosacral degenerative
disc disease and lumbosacral intervertebral degeneration. In reports dated April 27 to June 23,
2016, Dr. Wu diagnosed lumbar intervertebral disc degeneration, lumbar radiculopathy, and
lumbar spondylosis without myelopathy. None of these physicians, however, offered any opinion
or explanation on the cause of appellant’s degenerative disc condition. 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.13 These reports, therefore, are also
insufficient to establish causal relationship.14
The remaining diagnostic reports, including the August 27, 2013 x-ray scan report,
October 23, 2014 bilateral wrist and right shoulder x-ray reports, November 6, 2014 cervical spine
x-ray report, a December 23, 2014 right shoulder MRI scan report, a February 2, 2016 lumbar
spine MRI scan, lack probative value as diagnostic reports fail to provide an opinion on causal
relationship between appellant’s employment and her diagnosed condition. For this reason, this
evidence is insufficient to meet her burden of proof.15
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relationship. Such a relationship must be
11

See L.M., Docket No. 16-0188 (issued March 24, 2016).

12
The Board has found that rationalized medical opinion evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician. L.F., Docket No. 10-2287
(issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000).
13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

S.E., Docket No. 08-2214 (issued May 6, 2009).

15

See A.B., Docket No. 17-0301 (issued May 19, 2017).

7

shown by rationalized medical evidence of causal relationship based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.16 Because appellant has failed to provide sufficient medical evidence to establish that
her degenerative disc disease was aggravated by the accepted factors of her federal employment,
she has not met her burden of proof to establish her occupational disease claim.
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 cervical, lumbar,
and shoulder conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 12, 2019
Washington, DC

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

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

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

16

Patricia J. Bolleter, 40 ECAB 373 (1988).

8