United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Dallas, TX,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1987
Issued: January 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 15, 2014 appellant, through his attorney, filed a timely appeal of an
August 25, 2014 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying
his occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the
case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
developed pulmonary disease due to factors of his federal employment.
On appeal counsel argued that the medical evidence was sufficient to establish an
employment-related condition or in the alternative, that there was a conflict of medical opinion
evidence which OWCP was required to resolve.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 28, 2013 appellant, then a 64-year-old mine safety and health inspector, filed
an occupational disease claim alleging that he developed occupational pneumoconiosis, chronic
obstructive pulmonary disease (COPD), and chronic bronchitis due to exposures during his
federal employment. He stated that he first became aware of his condition on October 9, 2012
and first attributed his condition to his employment on that date.
Appellant stated that he worked for the employing establishment from June 16, 2000 until
July 29, 2011. He inspected underground lead mines for approximately four years with
exposures to gases, diesel fumes, dust, and chemicals. Appellant stated that he had dust
exposure on a regular basis with accumulations on his skin and clothing. He also inspected
underground limestone mines and surface limestone quarries with exposures to gases, diesel
fumes, radon, and rock dust. Appellant experienced dust on his skin and clothing with coughing
and nasal production. He did not wear a mask. Appellant reported his private sector
employment and dust exposures. He stated that he had shortness of breath for several years and
smoked cigarettes at the rate of one pack per day for 42 years. Appellant stopped smoking in
September 2006. His left lung was removed in 2006 due to cancer and he developed pneumonia
in 2010.
Dr. Glen Baker, a Board-certified pulmonologist and certified B-reader examined
appellant on November 20, 2012 and submitted a report dated December 5, 2012. He noted
appellant’s federal and private-sector work exposures as well as his history of smoking.
Dr. Baker stated that appellant underwent a left pneumonectomy in 2006 and that his medical
history was positive for lung cancer. He reviewed a September 17, 2012 chest x-ray and found
parenchymal abnormalities consistent with pneumoconiosis including small opacities category
1/2. He did not find any pleural abnormalities consistent with pneumoconiosis. Dr. Baker found
that appellant’s forced vital capacity (FVC) was 64 percent of predicted and that his forced
expiratory volume (FEV1) was 39 percent of predicted. He found severe obstructive defect with
a mild degree of restriction. Post-bronchodilator values were FVC of 70 percent and FEV1 of 43
percent of predicted. Dr. Baker found moderate obstructive ventilator defect with a mild degree
of restriction. He diagnosed occupational pneumoconiosis, category 1/2, COPD with a severe
obstructive defect on pre-bronchodilator values, chronic bronchitis, and obstructive sleep apnea.
Dr. Baker stated:
“[Appellant] has a long history of dust exposure in the extraction of copper, lead,
zinc[,] and limestone. He has x-ray changes of occupational pneumoconiosis,
which is due to a combination of the rock dust and various mineral dusts he was
exposed to during his period of employment. [Appellant] also has severe
obstructive airway disease and a long history of cigarette smoking. The
combination of cigarette smoke and rock dust can be either synergistic or additive
in terms of the effects on the lungs according to the medical literature. Thus
[appellant’s] condition would be worse than if he had never smoked or never
worked in the mining industry. His symptoms are due to his occupational
exposure to various metals and his smoking history.”

2

Dr. Baker provided an impartment rating of 65 percent under the American Medical
Association, Guides to the Evaluation of Permanent Impairment.2
The employing establishment submitted a statement dated February 7, 2013 and
acknowledged that appellant worked from June 16, 2000 to July 28, 2011 as a mine inspector. It
stated that he was exposed to dusts, gases, and fumes from rocks, mobile equipment, drills,
channel burners, excavators, milling, and rock crushing facilities. The employing establishment
stated that it encouraged the use of respirators and had provided respirators along with annual fit
testing for respirators for inspectors. It stated that mine inspection work rarely exposed an
inspector to high levels of dust or gases for any length of time with an average of six hours a day
five days a week at a mine site.
In a letter dated April 2, 2013, OWCP requested additional factual and medical evidence
in support of appellant’s claim and provided him with a questionnaire. It referred appellant for a
second opinion evaluation with Dr. Harold Dale Haller, Jr, a Board-certified pulmonologist, who
completed a report on June 19, 2013 and reviewed the statement of accepted facts. Dr. Haller
diagnosed severe COPD, history of lung cancer, and obstructive sleep apnea. He stated that he
could not confirm or refute appellant’s diagnosis of occupational pneumoconiosis. Dr. Haller
attributed appellant’s COPD to his 42-year smoking history. He further stated, “It is well known
that any significant dust exposure can cause COPD alone, or in combination with cigarette
smoking and can accelerate the rate of decline of lung function. So, it is entirely possible that his
exposure at work did potentially accelerate the rate of decline of his COPD.” In regard to
pneumoconiosis, Dr. Haller found marked hyperinflation on his chest radiograph. He stated, “I
do not see definite interstitial changes consistent with pneumoconiosis.”
Dr. Kenneth Anderson, a colleague of Dr. Haller, a Board-certified pulmonologist and Breader, examined appellant’s June 19, 2013 studies on July 23, 2013 and found parenchymal
abnormalities consistent with pneumoconiosis including small opacities with a profusion of 1/0.
He found no pleural abnormalities consistent with pneumoconiosis. Dr. Haller reviewed this
report on September 6, 2013 and stated that it did not change his previously stated opinion.
By decision dated November 22, 2013, OWCP denied appellant’s occupational disease
claim finding that he had not submitted the necessary medical opinion evidence to establish a
causal relationship between his diagnosed condition and his employment exposures. It found
that Dr. Haller’s opinion that it was “possible that exposure at work accelerated the COPD” was
speculative and that Dr. Anderson did not find any abnormalities consistent with
pneumoconiosis. Counsel requested an oral hearing from an OWCP hearing representative on
December 3, 2013.
Dr. Matthew A. Vuskovich, appellant’s physician Board-certified in occupational
medicine and a B-reader reviewed a September 17, 2012 x-ray and found parenchymal
abnormalities consistent with pneumoconiosis specifically small opacities 2/2, but no pleural
abnormalities consistent with pneumoconiosis.

2

A.M.A., Guides, 6th ed. 2009.

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Appellant testified at the oral hearing before an OWCP hearing representative on
June 9, 2014. He described his employment duties of inspecting lead and copper mines.
Appellant stated that he was exposed to diesel fumes, rock, and ore dust as well as gases. He
noted that he also inspected limestone quarries and mines with exposures to rock dust. Appellant
stated that he wore a respirator in areas that had already received citations for dust or gas, but did
not normally wear a mask.
Dr. Baker submitted an additional report on June 23, 2014. He reviewed appellant’s
federal and nonfederal employment exposures. Dr. Baker stated, “The various dust, odors,
fumes, and chemicals that he would have been exposed to have all played a part in his pulmonary
condition. They have affected his lung function as well as the appearance of his chest x-ray.
The sum total of his dust exposures have all contributed to his occupational pneumoconiosis,
chronic obstructive airway disease, chronic bronchitis and possibly to the development of lung
cancer as well with exposure to radon and lead.” He opined, “I think the sum total of his dust
exposure has caused his current condition in concert with his smoking history. The medical
literature suggests that when both exposures are present, the effects on the lungs may be either
synergistic or additive.”
By decision dated August 25, 2014, the hearing representative found that there was no
rationalized medical evidence in support of appellant’s claim and that the weight of the medical
evidence rested with Dr. Haller’s reports.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”3 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.4
ANALYSIS
Appellant submitted factual and medical evidence in support of his claim for pulmonary
disease causally related to his exposures to dust, gases, and fumes. Dr. Baker reviewed a
September 17, 2012 chest x-ray and found parenchymal abnormalities consistent with
3

20 C.F.R. § 10.5(q).

4

Lourdes Harris, 45 ECAB 545, 547 (1994).

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pneumoconiosis including small opacities category 1/2. He did not find any pleural
abnormalities consistent with pneumoconiosis.
Dr. Baker diagnosed occupational
pneumoconiosis, category 1/2, COPD with a severe obstructive defect on pre-bronchodilator
values, chronic bronchitis, and obstructive sleep apnea. He described appellant’s history of
employment exposures and smoking cigarettes.
Dr. Baker opined that appellant’s
pneumoconiosis was due to a combination of the rock dust and various mineral dusts he was
exposed to during his period of employment. He stated that the combination of cigarette smoke
and rock dust could be either synergistic or additive in terms of the effects on the lungs
according to the medical literature. Dr. Baker concluded that appellant’s symptoms are due to
his occupational exposure to various metals and his smoking history.
OWCP referred appellant for a second opinion evaluation with Dr. Haller, who diagnosed
severe COPD, history of lung cancer, and obstructive sleep apnea. Dr. Haller stated that he
could not confirm or refute appellant’s diagnosis of occupational pneumoconiosis. He attributed
appellant’s chronic obstructive pulmonary disease to his 42-year smoking history. Dr. Haller
further stated, “It is well known that any significant dust exposure can cause COPD alone, or in
combination with cigarette smoking and can accelerate the rate of decline of lung function. So, it
is entirely possible that his exposure at work did potentially accelerate the rate of decline of his
COPD.”
The Board finds that this case is not in posture for a decision. Proceedings before OWCP
are not adversarial in nature and OWCP is not a disinterested arbiter; in a case where OWCP
“proceeds to develop the evidence and to procure medical evidence, it must do so in a fair and
impartial manner.”5 OWCP referred appellant to Dr. Haller for a second opinion evaluation.
Dr. Haller made findings consistent with Dr. Baker noting that it was entirely possible that
appellant’s exposure at work did potentially accelerate the rate of decline of his COPD.
Dr. Anderson reviewed appellant’s June 19, 2013 x-ray studies on July 23, 2013 and, like
Dr. Baker, found parenchymal abnormalities consistent with pneumoconiosis including small
opacities.
Like Dr. Baker he also found no pleural abnormalities consistent with
pneumoconiosis. Dr. Haller reviewed this report on September 6, 2013 and stated that it did not
change his previously stated opinion. The Board finds that Dr. Haller did not offer a clear
opinion as to whether appellant’s diagnosed COPD was aggravated or accelerated by his
employment exposures. Once OWCP undertakes development of the record, it must do a
complete job in procuring medical evidence that will resolve the relevant issues in the case.6
Dr. Haller also failed to explain why Dr. Anderson’s findings of parenchymal abnormalities
consistent with pneumoconiosis including small opacities did not support a diagnosis of
pneumoconiosis. The Board finds that OWCP is obligated to request a supplemental report from
him addressing these issues. After this and such other development as OWCP deems necessary,
OWCP should issue a de novo decision.

5

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

6

Richard F. Williams, 55 ECAB 343, 346 (2004).

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CONCLUSION
The Board finds that the case is not in posture for a decision as OWCP undertook
development of the medical evidence and failed to complete the development by securing a
detailed and well-reasoned report from the second opinion physician, Dr. Haller, as to whether
appellant’s pulmonary disease developed due to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: January 21, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainfield, IN, Employer
__________________________________________

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

Docket No. 07-1637
Issued: November 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated May 18, 2007 awarding him a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the schedule
award issue.
ISSUE
The issue is whether appellant has established that he has more than a nine percent
permanent impairment of the right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On November 17, 2005 appellant, then a 46-year-old carrier, filed a traumatic injury
claim alleging that he sustained a torn right shoulder rotator cuff on November 16, 2005 when he
tripped and fell on a sidewalk.1 The Office accepted the claim for a right shoulder rotator cuff
1

The employing establishment terminated appellant’s employment effective December 23, 2005.

tear and authorized right shoulder rotator cuff tendon repair, which was performed on
February 2, 2006. On January 2, 2007 appellant filed a request for a schedule award.
On April 6, 2007 Dr. Dale S. Snead, a treating physician, opined that appellant reached
maximum medical improvement on February 20, 2007. A physical examination revealed that
range of motion for the right shoulder included 100 degrees forward elevation, 120 degrees
abduction, 45 degrees external rotation “and internal rotation T11.” Using the American
Medical Association, Guides to the Evaluation of Permanent Impairment (fifth edition),
Dr. Snead stated:
“Using the figures of 16-40, 16-43, 16-46, and 16-35, the impairment rating is as
follows; (sic) based on loss of motion of forward elevation, abduction, and
internal rotation respectively, the impairment rating is 53 and 1 percent.
Weakness from all resisted motions totaled elevation of 6 percent, abduction of 3
percent, totaling 12 percent due to weakness and 9 percent due to loss of range of
motion.
“Using the combined chart on page 604, this total for upper extremity impairment
rating would be 20 percent of the upper extremity, which translates to 12 percent
of the whole person.”
The Office medical adviser reviewed Dr. Snead’s report on April 20, 2007 and concluded
that appellant had nine percent right upper extremity impairment. In reaching this conclusion,
the Office medical adviser found a five percent impairment for 110 degrees of flexion using
Figure 16-40 at 476, a three percent impairment for 120 degrees abduction using Figure 16-43 at
477 and a one percent impairment for external rotation 45 degrees using Figure 16-46, page 479.
With respect to internal rotation, the Office medical adviser stated that there was no impairment
for internal rotation since Dr. Snead did not measure “it in the standard fashion (as described by
the A.M.A., Guides page 478).”2 The Office medical adviser also noted no impairment could be
given for weakness. Utilizing page 508 of the A.M.A., Guides, the Office medical adviser
explained that, “[d]ecreased strength cannot be rated in the presence of decreased motion,
painful conditions, deformities, or absence of parts … that prevent effective application of
maximal force in the region being evaluated.” (Emphasis in the original.) He concluded that
appellant had decreased motion which precluded a strength impairment rating.
On May 18, 2007 the Office granted appellant a schedule award for a nine percent
impairment of the right upper extremity, 38.08 weeks3 from February 20 to September 4, 2007.

2

The A.M.A., Guides describe the type of measurements for internal and external rotation. See A.M.A.,
Guides 478.
3

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of an upper extremity. 5 U.S.C. § 8107(c)(1). The Board notes that Office made a mathematical error in its
multiplication. Multiplying 312 weeks by nine percent equals 28.08 weeks of compensation not 38.08 weeks.

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LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.6
ANALYSIS
The Office issued a schedule award for a nine percent permanent impairment to the right
upper extremity, based on the April 20, 2007 report from the Office medical adviser. The issue
is whether appellant has established that he has more than nine percent impairment of his right
upper extremity related to his accepted employment injury.
The treating physician, Dr. Snead, had reported that appellant had a 9 percent impairment
for loss of range of motion and a 12 percent impairment for weakness resulting in a total 20
percent impairment of the right upper extremity or a 12 percent whole person impairment. The
Board notes that a schedule award is not payable for an impairment of the whole person.7
Dr. Snead’s impairment recommendation included 12 percent impairment based on weakness
under Table 16-35 of the A.M.A., Guides.8 However, the A.M.A., Guides state that the use of
such a method for calculating impairment is appropriate only in a rare case where the loss of
strength represents an impairing factor that has not been considered adequately by other
methods. This section of the A.M.A., Guides states that decreased strength cannot be rated in the
presence of decreased motion.9 Dr. Snead did not explain how his inclusion of weakness in
appellant’s impairment rating comported with the A.M.A., Guides or why it would be
appropriate in appellant’s case.
The Office’s procedures indicate that referral to an Office medical adviser is appropriate
when a detailed description of the impairment from the attending physician is obtained.10 The
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.; see Billy B. Scoles, 57 ECAB ___ (Docket No. 05-1696, issued December 7, 2005).

7

D.H., 58 ECAB ___ (Docket No.06-2160, issued February 12, 2007); Marilyn S. Freeland, 57 ECAB ___
(Docket No.06-563, issued June 7, 2006).
8

Supra note 6 at 510.

9

Id. at 508.

10

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

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Office medical adviser applied the fifth edition of the A.M.A., Guides to the physical findings of
Dr. Snead to determine that appellant was entitled to a nine percent impairment of the right upper
extremity.
In an April 20, 2007 report, the medical adviser reviewed the findings of the treating
physician, Dr. Snead and applied the A.M.A., Guides. The Office medical adviser correctly
noted that Dr. Snead erred in his impairment calculations by including an impairment rating for
weakness because he had sustained a loss of range of motion. With respect to loss of range of
motion, he properly applied the appropriate figures in the A.M.A., Guides for shoulder range of
motion. Under Figure 16-40, 110 degrees of flexion is five percent impairment,11 120 degrees of
abduction results in a three percent impairment and 45 degrees of external rotation is a one
percent impairment.12 With respect to internal rotation, the Office medical adviser noted
Dr. Snead did not comply with the standards set by A.M.A., Guides in determining internal
rotation impairment and thus no impairment rating was appropriate. The Office medical adviser
pointed out that, since appellant had a decreased range of motion, an impairment rating for loss
of strength was precluded. As the Office medical adviser’s April 20, 2007 impairment rating
conforms to the A.M.A., Guides (5th ed. 2001), his finding constitutes the weight of the medical
evidence.13 Appellant has not submitted any probative medical evidence indicating that he has
greater than nine percent impairment of the right upper extremity.
CONCLUSION
Appellant failed to establish that he was entitled to more than a nine percent impairment
of the right upper extremity, for which he received a schedule award.

11

A.M.A., Guides 476, Figure 16-40.

12

Id. at 477, Figure 16-43 and 479, Figure 16-46.

13

See Bobby L. Jackson, 40 ECAB 593 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 18, 2007 is affirmed.
Issued: November 16, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

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

Docket No. 11-1463
Issued: March 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 8, 2011 appellant timely appealed the April 28, 2011 merit decision of the Office
of Workers’ Compensation Programs (OWCP), which declined to expand her previously
accepted occupational disease claim. 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. §§ 8101-8193.

By decision dated May 17, 2011, OWCP terminated appellant’s entitlement to monetary compensation benefits
for refusing to accept suitable work. However, appellant remained eligible for medical benefits with respect to her
accepted lumbar condition. Her May 31, 2011 notice of appeal, which the Board received on June 8, 2011, did not
seek review of OWCP’s May 17, 2011 decision. The notice of appeal only referenced the April 28, 2011 decision
denying “coverage for neck and shoulder treatment....” Because appellant did not specifically request review of the
May 17, 2011 decision, the Board will not exercise jurisdiction over that particular decision. See 20 C.F.R.
§ 501.3(c), (h) (2011).

ISSUE
The issue is whether appellant’s neck and shoulder conditions are employment related.
FACTUAL HISTORY
Appellant, a 53-year-old registered nurse, has an accepted claim for aggravation of
displaced lumbar intervertebral disc, which arose on or about September 4, 2001.3 OWCP
authorized a December 13, 2006 discectomy and interbody fusion at L5-S1.4 Following surgery,
it placed appellant on the periodic compensation rolls. Appellant received wage-loss
compensation for temporary total disability for approximately four and a half years.5
When appellant initially filed her claim in October 2005, she reported having injured both
her cervical and lumbar spine. She submitted an August 3, 2005 cervical spine magnetic
resonance imaging (MRI) scan that revealed disc herniations at C3-4 and C5-6, and a disc bulge
at C4-5. OWCP’s January 4, 2006 acceptance was for appellant’s lumbar condition, which was
consistent with the then-contemporaneous medical evidence that primarily focused on her
lumbar and lower extremity complaints. The majority of the medical evidence received after the
initial acceptance continued to focus on her preoperative and postoperative lumbar complaints.
However, the record also included several reports and diagnostic studies that referenced
appellant’s cervical and upper extremity complaints.
Dr. Frank P. Cammisa Jr., a Board-certified orthopedic surgeon, examined appellant on
August 7, 2006. He was consulted regarding the need for lumbar surgery, but noted at the time
that she also complained of neck and right arm pain. Dr. Cammisa reviewed the August 3, 2005
cervical MRI scan, which he stated was of “poor quality” and did not show any specific
abnormalities. His diagnoses included cervicalgia (neck pain) without evidence of myelopathy
or radiculopathy. Dr. Cammisa advised that appellant should be followed with respect to her
cervical spine, but did not otherwise address whether her neck and right arm pain was causally
related to her nursing duties.
Following appellant’s lumbar surgery on December 13, 2006 she continued to complain
of lumbar pain and radicular symptoms. In March 2007, her surgeon referred her for a
neurophysiologic evaluation. Appellant came under the care of Dr. Kiril Kiprovski, a Boardcertified neurologist with a subspecialty in clinical neurophysiology, who initially examined her
on March 2, 2007. She complained of lower back pain, right gluteal pain and burning pain in the
right lower extremity. There was no mention of cervical or upper extremity complaints.
Dr. Kiprovski believed appellant’s right leg complaints were suggestive of lumbosacral
radiculopathy.
3

Appellant attributed her injury to “a lot of ... lifting and repositioning” of patients.

4

Dr. Frank J. Schwab, a Board-certified orthopedic surgeon, performed the December 13, 2006 surgical
procedure. He initially examined appellant on November 29, 2006.
5

As previously indicated, supra note 2, OWCP terminated appellant’s compensation benefits effective
May 17, 2011.

2

On January 10, 2008 Dr. Salvatore J. Corso, a Board-certified orthopedic surgeon,
examined appellant at OWCP’s request. Appellant’s complaints included “discomfort in her
neck.” Dr. Corso’s examination, however, focused on her thoracolumbar spine and lower
extremity complaints. He did not provide any findings or a specific diagnosis relative to her
cervical complaints.
In a follow-up report dated April 4, 2008, Dr. Schwab noted that appellant had been
increasingly troubled by neck pain, “which she attributes back to work-related injuries in the
hospital as a nurse.” Dr. Schwab stated that over the past year the focus had been on her lower
back, which seemed to be stabilized under Dr. Kiprovski’s care, but she had recently been
troubled by increasing neck discomfort with radiation to the left scapula. Appellant denied
radiation to the upper extremities, weakness, numbness or tingling. Dr. Schwab recommended a
cervical MRI scan. He noted that appellant’s cervical treatment should be covered under her
workers’ compensation claim because she attributed her symptoms to work-related incidents.
An April 4, 2008 x-ray showed reversal of the normal cervical lordosis with mild
degenerative change at C4-5 and C5-6. A May 7, 2008 cervical MRI scan revealed a disc
herniation at C3-4, broad-based disc protrusions at C4-5 and C5-6 and reversal of the normal
cervical lordosis.
In a follow-up visit on July 25, 2008, Dr. Schwab reviewed appellant’s recent cervical
MRI scan, which he found revealed small disc bulges most notably at C3-4. Appellant reported
persistent shoulder pain. On physical examination there was good shoulder range of motion, but
pain at the end of ranges of motion and tenderness over the posterior joint space and over the
scapula. Dr. Schwab recommended that appellant see a shoulder specialist.
Appellant underwent an OWCP-directed examination on January 28, 2009. Dr. Stanley
Soren, a Board-certified orthopedic surgeon, noted complaints of pain in her neck radiating to
her fingers, which she attributed to the September 4, 2001 lifting incident. On physical
examination of the cervical spine, he noted that it was midline and there was no torticollis or
spasm. Dr. Soren also noted there was barely trace tenderness in the right and left paracervical
area. He reported a normal neurological examination of the upper extremities. Dr. Soren also
indicated that there was good shoulder girdle strength bilaterally and full abduction of both arms.
His examination focused primarily on appellant’s lumbar condition and he did not offer a
specific diagnosis relative to her cervical or upper extremity complaints.
Dr. Saumyajit Datta, a Board-certified family practitioner with a subspecialty in geriatric
medicine, initially examined appellant on September 18, 2009 for lower back pain. No mention
was made of any cervical or right shoulder complaints. When appellant returned on
November 10, 2009, she complained of back pain, bilateral shoulder pain and neck pain.
Dr. Datta also referred her to a pain specialist.
Dr. Clarence D. Washington, a Board-certified neurologist, examined appellant on
November 3, 2009. With respect to her cervical spine, he diagnosed chronic cervical pain
syndrome and chronic cervical degenerative disc disease with radiculopathy involving the upper
extremities. Dr. Washington noted a history of chronic cervical and lumbosacral problems
dating back to 2001 when appellant reportedly injured her back as well as her neck and arms

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working as a nurse. He noted that she attributed all of her problems to the accumulated effects of
lifting, pulling and pushing. Dr. Washington also noted that recent electrodiagnostic studies
revealed evidence of mild bilateral ulnar neuropathy, but no evidence of cervical radiculopathy.
Dr. Matthew R. Peterson, a Board-certified anesthesiologist with a subspecialty in pain
medicine, saw appellant on December 14, 2009.6 With respect to appellant’s neck pain, he noted
that the location was posterior and it radiated to both shoulders. Dr. Peterson reported that the
initial onset was more than five years prior, and there was “no obvious precipitating event or
injury.” He also noted a history of cervical degenerative disc disease dating back to 2005 as
demonstrated by MRI scan findings. Dr. Peterson did not provide a more definitive diagnosis
than neck pain and recommended another cervical MRI scan.
A December 23, 2009 cervical MRI scan revealed borderline spinal canal stenosis at C34, C4-5 and C5-6 resulting from a small focal central disc protrusion at C3-4 and diffuse disc
bulging at C4-5 and C5-6. There was also borderline/mild neural foraminal narrowing at C4-5
and C5-6.
Dr. Peterson saw appellant for a follow-up examination on March 16, 2011. Appellant
complained of low back and neck pain, however, her neck pain was reportedly “‘getting much
worse.’” Dr. Petersen still had not seen her latest cervical MRI scan from December 2009. He
noted appellant’s history of cervical degenerative disc disease based on her 2005 cervical MRI
scan. Dr. Peterson diagnosed neck pain and cervical disc degeneration. With respect to
appellant’s cervical complaints, he recommended physical therapy.
On March 23, 2011 appellant sought approval from OWCP for treatment of her neck and
shoulder pain. She initially telephoned it and then followed up with a letter confirming her
conversation. Appellant claimed that her neck and shoulder pain resulted from years of “patient
pulling, pushing and lifting....” She also noted that priority had been placed on her lower back
while her neck and shoulder pain gradually worsened. OWCP advised appellant of the need to
submit medical evidence in support of the acceptance of these additional conditions.
In an April 13, 2011 report, Dr. Schwab noted that appellant was under his care for neck,
shoulder and low back pain. He stated that he initially examined her on November 29, 2006 for
complaints of back pain that had started several years prior. Appellant’s chief complaint at the
time was her lumbosacral area. Dr. Schwab further noted that she had undergone surgery on
December 13, 2006 and following stabilization of her lumbar spine, he then focused on her
increasing neck discomfort, which radiated to her left scapula. He also noted that a cervical MRI
scan showed disc herniations at C3-4 and C5-6. Dr. Schwab indicated that he had last seen
appellant on July 28, 2008.
By decision dated April 28, 2011, OWCP denied appellant’s claim for her neck and
shoulder conditions. Appellant failed to establish that the claimed conditions were causally
related to her September 4, 2001 employment injury.

6

Dr. Datta referred appellant to Dr. Peterson.

4

LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of her claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.8
ANALYSIS
OWCP accepted appellant’s claim for aggravation of displaced lumbar intervertebral disc
and authorized surgical intervention at L5-S1. Appellant has been off work since her
December 13, 2006 lumbar surgery. She argued that OWCP should have also accepted her neck
and shoulder conditions as employment related. Where appellant claims that a condition not
accepted or approved by OWCP was due to her employment injury, she bears the burden of
proof to establish that the condition is causally related to the employment injury.9 Neither the
fact that her condition manifested itself during a period of employment, nor her belief that the
condition was caused, precipitated or aggravated by her employment is sufficient to establish
causal relationship.10
While appellant claims to have sustained employment-related injuries to both her neck
and shoulders, the Board notes that there is no specific diagnosis relative to her shoulders or
upper extremities. There is evidence of radicular symptoms in the upper extremities, but no
specific diagnosis with respect to appellant’s shoulders or upper extremities. The medical
evidence indicates that her shoulder and upper extremity complaints stem from her cervical
condition.

7

20 C.F.R. § 10.115(e), (f) (2011); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
8

Victor J. Woodhams, supra note 7.

9

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

10

D.I., 59 ECAB 158, 162 (2007).

5

Appellant believes that the same employment exposure that was responsible for her
lumbar condition also caused her cervical condition. While the record is replete with references
to ongoing lumbar and lower extremity complaints, there are considerably fewer references to
her neck, shoulder and upper extremity complaints. Although appellant believes her cervical
condition is employment related, no physician of record has specifically attributed her cervical
condition to her previous nursing duties. Dr. Washington, Dr. Soren and Dr. Schwab merely
reiterated appellant’s belief that her cervical condition was related to her employment injuries
while working as nurse. No physician offered a rationalized medical opinion addressing the a
causal relationship between appellant’s nursing duties and her cervical disc disease.
The record demonstrates that appellant had cervical disc disease dating back as early as
August 2005. Appellant, however, has failed to establish that her nursing duties either caused or
contributed to her diagnosed cervical condition. Accordingly, OWCP properly declined to
expand her claim to include her cervical and shoulder complaints.
CONCLUSION
Appellant has not established that her claimed neck and shoulder conditions are
employment related.
ORDER
IT IS HEREBY ORDERED THAT the April 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE ARMY, ABERDEEN
PROVING GROUND, Aberdeen, MD, Employer
__________________________________________

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

Docket No. 21-0273
Issued: July 15, 2021

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 December 18, 2020 appellant filed a timely appeal from a November 5, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 4, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 5, 2020 decision, appellant submitted additional evidence to
OWCP. 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.

FACTUAL HISTORY
On September 23, 2019 appellant, then a 59-year-old occupational safety and health
specialist, filed an occupational disease claim (Form CA-2) alleging that he was exposed to
cigarette smoke and nicotine due to factors of his federal employment. He noted that he first
became aware of his condition on January 4, 2010 and first realized its relationship to his federal
employment on July 10, 2018. Appellant stopped work on September 23, 2019.
In a development letter dated October 8, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. In a separate development letter
of even date, OWCP requested that the employing establishment provide additional information,
including comments from a knowledgeable supervisor and an explanation of what potentially
harmful substances appellant had been exposed to. It afforded both parties 30 days to submit the
necessary evidence.
OWCP subsequently received a September 23, 2019 report from Dr. Bhagya Pallerla, a
Board-certified family practitioner, who noted that appellant complained of itchiness, watery eyes,
swollen lips, runny nose, tingling, and numbness due to allergic reaction to nicotine from his
supervisor’s smoking. Dr. Pallerla provided physical examination findings and diagnosed allergy.
She recommended that appellant visit an allergy specialist for testing.
In an October 10, 2019 patient care plan, Dr. Stefan Eltgroth, a Board-certified internist,
referred appellant to an allergist.
By decision dated November 19, 2019, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish causal relationship between his diagnosed
condition and the accepted factors of his federal employment.
In an unsigned, undated request form received by OWCP on January 10, 2020, appellant
requested reconsideration. He submitted e-mails, dated September 17 through December 18,
2019, which showed that appellant reported his condition to S.O., his supervisor, and alleged that
he experienced an allergic reaction when handling a thumb drive and paperwork that S.O. had
previously touched.
In a letter dated March 3, 2020, OWCP informed appellant that his reconsideration request
was not signed or dated and; therefore, no further action would be taken on his letter.
On March 13, 2020 appellant requested reconsideration. He asserted that S.O.’s smoking
caused his allergic reaction due to exposure to nicotine and secondhand smoke on a regular, daily
basis. Appellant noted that he informed S.O. of his allergy to nicotine and secondhand smoke in
July 2018. He alleged that S.O. ignored his concerns and frequently gave him documents that
were exposed to smoke. Appellant further indicated that S.O. exposed him to nicotine by regularly
touching his personal items and coughing without covering his mouth. He noted that he sought
treatment, but was informed that the allergy clinic did not have a test for nicotine allergies.
By decision dated June 4, 2020, OWCP denied modification of the November 19, 2019
decision.

2

On July 13, 2020 appellant requested reconsideration.
By decision dated November 5, 2020, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
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 or her own motion or on application.3
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.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 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.7
ANALYSIS
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 establish that OWCP erroneously applied
or interpreted a specific point of law, or advance a relevant legal argument not previously
considered by OWCP. Consequently, the Board finds that he is not entitled to a review of the
merits of his claim based on either the first or second requirement under 20 C.F.R. § 10.606(b)(3).8

3

5 U.S.C. § 8128(a); see J.T., Docket No. 19-1829 (issued August 21, 2020); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.606(b)(3); see J.V., Docket No. 19-0990 (issued August 26, 2020); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

Id. at § 10.607(a); see M.M., Docket No. 20-0523 (issued August 25, 2020).

6

Id. at § 10.608(a); see M.M., Docket No. 20-0574 (issued August 19, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see J.V., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

8

Supra note 4.

3

Furthermore, appellant did not submit any new evidence with his request for
reconsideration. Accordingly, he was not entitled to a review of the merits of his claim based on
the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).9
The Board, therefore, finds that OWCP properly determined that appellant was not entitled
to further review of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10
CONCLUSION
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).
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9

Id.; P.W., Docket No. 20-0380 (issued November 23, 2020); M.O., Docket No. 19-1677 (issued February 25,
2020); C.B., Docket No. 18-1108 (issued January 22, 2019).
10
D.M., Docket No. 18-1003 (July 16, 2020); 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).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, TULSA PROCESSING
& DISTRIBUTION CENTER, Tulsa, OK,
Employer
__________________________________________

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

Docket No. 13-1721
Issued: February 21, 2014

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 12, 2013 appellant filed a timely appeal from a March 6, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) that denied her recurrence of disability
claim and a March 28, 2013 decision that denied reconsideration. 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.
ISSUES
The issues are: (1) whether appellant is entitled to compensation for total disability from
September 3 to October 31, 2012; and (2) whether OWCP properly refused to reopen her claim
for further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that she is physically unable to perform her job duties.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 10, 2006 appellant, then a 31-year-old mail handler, sustained an
employment-related lumbar sprain, under file number xxxxxx547. She stopped work that day
and returned to limited duty for six hours a day on October 3, 2007.
On April 20, 2009 appellant filed an occupational disease claim, alleging that she injured
her back and left lower extremity at work. OWCP adjudicated this claim under file number
xxxxxx200. It accepted sprain of the left hip and thigh, enthesopathy of the left hip region,
sprain of the left knee cruciate ligament and sprain of the left foot.
Under claim number xxxxxx547, by decision dated August 4, 2009, OWCP found that
appellant had been reemployed since October 2007 and that her actual earnings fairly and
reasonably represented her wage-earning capacity. It reduced her monetary compensation
accordingly.
OWCP referred appellant to Dr. Christopher Jordan, a Board-certified orthopedic
surgeon, for a second opinion evaluation. In a November 19, 2009 report, Dr. Jordan found that
appellant could work eight hours of modified duty daily. OWCP determined that a conflict of
medical opinion arose between Dr. Donald R. Barney, appellant’s attending osteopath, and
Dr. Jordan regarding her total disability and work capacity. It referred her to Dr. Bernie L.
McCaskill, a Board-certified orthopedic surgeon, for an impartial evaluation. In a March 16,
2010 report, Dr. McCaskill found no objective evidence of ongoing injury and determined that
the accepted lumbar strain had resolved. He indicated that appellant could return to her preinjury
job.
By decision dated August 4, 2010, OWCP modified the wage-earning capacity
determination to find that she was capable of full-time work and terminated her monetary
compensation, effective August 29, 2010. In a nonmerit decision dated February 18, 2011,
OWCP denied appellant’s request for reconsideration.2
Under claim number xxxxxx200, in October 2009, appellant began work four hours a
day. She received compensation for claimed wage loss for four hours daily. Appellant stopped
work on June 4, 2012 and claimed wage-loss compensation for eight hours daily beginning that
day. In a May 30, 2012 report, Dr. Barney advised that he had placed appellant on a permanent
restriction of four hours’ work daily.
OWCP referred appellant to Dr. Shawn Michael Smith, a Board-certified neurologist, for
a second opinion evaluation and impairment determination. Dr. Smith provided physical
examination findings and diagnosed lumbar disc herniation with annular tear and no neurologic
deficits and left hip pain with bursitis. He advised that appellant reached maximum medical
improvement on October 28, 2011 and had a two percent impairment of the left lower extremity.
In an undated supplemental report, Dr. Smith advised that, based on his physical examination
findings, appellant did not have impairment for her left knee condition.

2

As noted, infra, appellant continued to receive monetary benefits under claim number xxxxxx200.

2

Dr. Deborah A. Kucharski, a chiropractor, completed a functional capacity evaluation
(FCE) on July 30, 2012. She advised that appellant could not work full time due to multiple
upper and lower extremities joint injuries because some of the job demands would put her at risk
for further injury. In an August 27, 2012 report, Dr. Barney noted that appellant had been off
work since June 4, 2012, stating that she was in severe pain that radiated down the left leg into
her foot. He found numbness that caused appellant to be unable to stand or walk and opined that
she was unable to perform her mail handler duties due to the accepted conditions and that he
could not estimate when she would return to work.
On September 25, 2012 appellant was granted a schedule award for two percent
impairment of the left leg.3 In a separate decision dated September 25, 2012, OWCP denied her
claim for total disability compensation beginning June 4, 2012 on the grounds that the medical
record was insufficient to substantiate her claim for compensation.
On October 22, 2012 appellant requested reconsideration and submitted three reports
from Dr. Barney dated October 4, 2012. Dr. Barney noted that appellant had shoulder surgery on
June 6, 2012 following a nonwork-related automobile accident that caused her to have low back,
hip, knee and foot pain. He described the motor vehicle accident, stating that appellant was on
vacation in Texas when it happened and not performing any job duties. Appellant had
complaints of pain on May 16 and July 3, 2012, and on August 27, 2012, he considered sending
her back to work. Dr. Barney kept her off work and advised that she had not made a complete
recovery from the June 6, 2012 surgery. He stated that he realized this was actually a private
insurance case due to the motor vehicle accident case and not workers’ compensation.
Dr. Barney also stated that appellant was still under his care and still off work for the left
hip/thigh, knee and foot condition.
By decision dated November 27, 2012, OWCP modified the September 25, 2012 decision
to find that appellant was entitled to wage-loss compensation for four hours on May 1, June 3,
July 16 and 17, 2012. It affirmed the denial of compensation for other periods claimed because
the medical evidence found that she was disabled due to a nonwork-related injury.
On December 26, 2012 appellant submitted a claim for compensation for the period
September 3 to October 31, 2012. In November 14 and December 27, 2012 reports, Dr. Barney
described physical examination findings. He diagnosed left hip strain, ligamentous strain of the
left thigh and left leg, derangement of the left hip, left-sided radiculopathy from the above
lesions, sciatica, and piriformis syndrome and recommended therapy and medication. On
January 15, 2013 Dr. Barney advised that there was no recurrence of appellant’s injuries but a
worsening of the original injuries because her work restrictions were not followed. He noted
appellant’s complaint of worsening pain, edema, limited range of motion, difficulty walking and
bending, were all due to employment injuries. Dr. Barney also noted that appellant had an injury
to her right shoulder but received care for that condition from another physician and he only
responded to questions regarding her workers’ compensation conditions.
On January 23, 2013 OWCP combined claim numbers xxxxxx547 and xxxxxx200.
3

The schedule award claim had initially been denied on June 15, 2011, and on July 21, 2011, OWCP denied her
reconsideration request of the June 15, 2011 decision.

3

In a merit decision dated March 6, 2013, OWCP denied appellant’s claim for
compensation commencing September 3, 2012 on the grounds that the medical evidence did not
establish that she was disabled from work due to the accepted conditions.
On a form dated and faxed to OWCP on March 20, 2013, appellant requested
consideration. She did not submit any evidence in support of her request.
In a nonmerit decision dated March 28, 2013, OWCP denied appellant’s reconsideration
request.
LEGAL PRECEDENT -- ISSUE 1
Under FECA, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. 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.4 Furthermore, whether a particular
injury causes an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by a preponderance of the reliable, probative and
substantial medical evidence.5
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.6 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.7
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 The opinion of the physician must be
based on a complete factual and medical background of the claimant, 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 Neither the mere fact that a disease or condition manifests itself during a period

4

20 C.F.R. § 10.5(f), Cheryl L. Dccavitch, 50 ECAB 397 (1999).

5

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

William A. Archer, 55 ECAB 674 (2004).

7

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

4

of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.10
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to total disability compensation for the period September 3 to October 31, 2012 due to
the accepted conditions.
OWCP accepted that appellant sustained a lumbar sprain and sprain of the left hip and
thigh, enthesopathy of left hip region, sprain of left knee cruciate ligament and sprain of left foot.
On December 26, 2012 appellant submitted a claim for total disability compensation for the
period September 3 to October 31, 2012.11 She continued to receive monetary compensation for
four hours a day.
Dr. Kucharski, a chiropractor, opined that appellant could not work full time. Under
section 8101(2) of FECA, the term “physician” includes chiropractors only to the extent that
their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the
Secretary.12 Without diagnosing a subluxation from x-ray, a chiropractor is not a “physician”
under FECA.13 Dr. Kucharski’s opinion is, therefore, of no probative value on the issue of
whether appellant was totally disabled for the period claimed.
Appellant submitted reports from Dr. Barney, an attending osteopath, who advised on
August 27, 2012 that appellant had been off work since June 4, 2012 due to severe pain.
Dr. Barney opined that she was unable to perform her mail handler duties and that could not
estimate when she would return to work. On October 4, 2012 he noted that on June 6, 2012
appellant had shoulder surgery due to a nonwork-related motor vehicle accident. On August 27,
2012 Dr. Barney was considering sending her back to work but that she had continued to have
pain. He indicated that she had not completely recovered from the June 6, 2012 surgery and was
still under his care for the employment-related conditions. In reports dated November 14 and
December 27, 2012, Dr. Barney did not discuss appellant’s work capacity. On January 15, 2013
he advised that appellant had complaints of worsening pain, edema, limited range of motion, and
difficulty walking and bending, all due to the employment injuries. Dr. Barney’s reports are
equivocal regarding the reason why appellant was totally disabled. He did not related how her
disability as of September 3, 2012 related to residuals of her accepted injury. Rather, Dr. Barney
10

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

11

Appellant had stopped work on June 4, 2012 and filed claims for compensation. As noted above, in a
September 25, 2012 decision, OWCP denied the claim for total disability compensation beginning June 4, 2012 and
in a merit decision dated November 27, 2012. It modified the prior decision and granted appellant compensation for
medical treatment but denied total disability compensation for other periods. Appellant did not file an appeal with
the Board of these decisions.
12

5 U.S.C. § 8101(2); see D.S., Docket No. 09-860 (issued November 2, 2009).

13

See A.O., Docket No. 08-580 (issued January 28, 2009).

5

noted an intervening nonwork-related automobile accident. The Board has long held that
medical opinions based upon an incomplete history or which are speculative and equivocal are of
diminished probative value.14 Section 10.5(x) of OWCP’s regulations provide that a recurrence
of disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.15
The record supports that when appellant initially stopped work in June 2012 it was to undergo
shoulder surgery due to a nonemployment-related automobile accident. In October 2012,
Dr. Barney acknowledged that appellant had not recovered from the shoulder surgery.
Furthermore, he did not profess knowledge of appellant’s specific job duties or provide a
rationalized explanation as to why appellant could not continue part-time work for the claimed
period. The other medical reports of record do not address whether appellant’s disability for the
claimed period was due to her accepted conditions.
When a physician’s statements regarding an employee’s ability to work consist only of
repetition of the employee’s complaints that he or she hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation.16 The Board has long held that
medical conclusions unsupported by rationale are of diminished probative value and insufficient
to establish causal relationship.17 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.18 As there is no rationalized
medical evidence contemporaneous with the period of claimed disability, appellant failed to meet
her burden of proof to establish entitlement to total disability compensation for the period
September 3 to October 31, 2012 due to the accepted conditions.19
The Board, however, finds this case is not in posture for decision regarding whether
appellant would be entitled to wage-loss compensation for attending medical appointments. If a
claimant has returned to work following an accepted injury or the onset of an occupational
disease and must leave work and lose pay or use leave to undergo treatment, examination or
testing for the accepted condition, compensation should be paid for wage loss under section 8105
of FECA, while undergoing the medical services and for a reasonable time spent traveling to and
from the location where services were rendered.20 The medical evidence in this case supports
14

Frank Luis Rembisz, 52 ECAB 147 (2000).

15

20 C.F.R. § 10.5(x) (2011).

16

G.T., 59 ECAB 447 (2008).

17

See Albert C. Brown, 52 ECAB 152 (2000).

18

William A. Archer, supra note 6.

19

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

20

5 U.S.C. § 8105. Any leave used cannot be compensated until it is converted to leave without pay. For a
routine medical appointment, a maximum of four hours of compensation is usually allowed. See William A. Archer,
supra note 6.

6

that appellant was seen for medical visits for the accepted conditions during the claimed period.
The case will therefore be remanded to OWCP to determine whether she incurred wage loss for
attending medical appointments related to her accepted conditions.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.21 Section 10.608(a) of the Code of Federal Regulations provide that a
timely request for reconsideration may be granted if OWCP determines that the employee has
presented evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3 ).22 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.23 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.24
ANALYSIS -- ISSUE 2
With her March 20, 2013 reconsideration request, appellant merely checked an OWCP
form that she was requesting reconsideration. She did not allege or demonstrate that OWCP
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument
not previously considered by OWCP. Consequently, 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)(2).25
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted no new evidence with her reconsideration request. As she did not show that OWCP
erred in applying a point of law, advance a relevant legal argument not previously considered, or
submit relevant and pertinent new evidence not previously considered by OWCP, OWCP
properly denied her reconsideration request.26

21

5 U.S.C. § 8128(a).

22

20 C.F.R. § 10.608(a) (2011).

23

Id. at § 10.606(b)(3) (2011).

24

Id. at § 10.608(b) (2011).

25

Id. at § 10.606(b)(2).

26

Supra note 22.

7

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 did not establish that she was entitled to disability
compensation for the period September 3 to October 31, 2012 due to the accepted conditions and
that the case is not in posture for decision regarding whether she would be entitled to
compensation for lost wages incidental to appropriate medical treatment. The Board further
finds that OWCP properly refused to reopen appellant’s case for further consideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).27
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2013 is affirmed. The March 6, 2013 decision is
affirmed in part and set aside in part and remanded to OWCP for proceedings consistent with this
opinion of the Board.
Issued: February 21, 2014
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

27

The Board notes that appellant submitted medical evidence with her appeal to the Board. The Board cannot
consider this evidence, however, as its review of the case is limited to the evidence that was before OWCP at the
time it rendered its final decision. 20 C.F.R. § 501.2(c)(1) (2009).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0487
Issued: December 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 28, 2016 appellant filed a timely appeal from a November 4, 2016 decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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 met his burden of proof to establish an occupational
disease causally related to factors of his federal employment.
FACTUAL HISTORY
On August 12, 2016 appellant, then a 55-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained injuries to his cervical spine and lower
1

5 U.S.C. § 8101 et seq.

back while performing his federal employment duties. He noted that he experienced migraine
headaches as well as pain in the leg, body, and upper back. Appellant explained that he had been
assigned to pull a heavy box weighing 1,300 to 1,400 pounds from a machine and that, in doing
so, his body overheated and he felt pain in his back and neck. He recalled that he first became
aware of his conditions and of their relationship to his federal employment on March 8, 2013. A
supervisor noted that his condition was first reported on August 12, 2016. Appellant was last
exposed to his employment duties on June 19, 2016.
By letter dated August 16, 2016, the employing establishment requested that OWCP
question appellant regarding any injuries between the date of injury and the date they were first
reported to a supervisor or a physician, whether he had any similar preexisting injuries or
disabilities, and for appellant to describe, in detail, the development of his conditions. The
employing establishment maintained that appellant had not provided any rationalized medical
evidence to support that his claimed conditions were related to factors of his federal
employment.
By undated letter received on August 17, 2016, a supervisor noted that at approximately
2:45 p.m. on July 28, 2016, appellant brought medical documentation to work and requested a
Form CA-2 for injuries to his back and neck. He observed that, in order to retrieve the papers
from his backpack, appellant squatted “in a baseball catchers’ stance” for about a minute, and
stood back up without any noticeable difficulty. The supervisor further disputed the allegation
that appellant pulled a 1,500 to 1,700-pound container by hand, as employees transported mail
using hand pallet or power pallet jacks.
In a report dated March 18, 2013, Dr. Ray Bennett, a family medicine specialist,
diagnosed a lumbar strain. He noted that appellant related that an injury occurred while pulling
boxes at the employing establishment on March 6, 2013.
On March 29, 2013 a physician assistant, Maya P. Acharya, reported that appellant had a
musculoskeletal injury for which a structured physical therapy program was necessary.
By letter dated August 30, 2016, OWCP informed appellant that further factual and
medical information was needed to support his claim. Appellant was afforded 30 days to submit
the requested information. OWCP subsequently received additional medical evidence.
In a handwritten medical report dated August 24, 2001, Dr. Varma Meka, a Boardcertified internist, diagnosed migraines and lower back pain. Appellant submitted additional
reports from Dr. Meka with consistent diagnoses of migraine and lower back pain. In a report
dated August 28, 2008, Dr. Meka diagnosed migraines, lower back pain, and hyperlipidemia. In
a report dated June 4, 2009, she noted that appellant complained of migraine headaches.
Dr. Meka diagnosed migraine headache and lower back pain. In a report dated October 21,
2014, she examined appellant on a follow-up visit and diagnosed migraines and low back strain.
By letter dated September 16, 2016, she noted that appellant had been under her care from
April 4, 2013 through October 21, 2014 for a lower back injury that occurred on March 20, 2015.
Dr. Meka noted that appellant had severe lumbar strain and was asked to obey work restrictions
of lifting no more than 20 pounds.

2

In diagnostic reports dated August 22, 2007, Dr. John B. Black, a Board-certified
radiologist, examined the results of x-rays of appellant’s thoracic and lumbar spine. He noted
mild degenerative joint disease of the thoracic spine and a normal lumbar spine.
In reports dated between March 8 and May 2, 2011, Dr. Stephen Dawkins, Boardcertified in occupational medicine, diagnosed sprain/strain of the lumbar spine. He followed
appellant’s recovery process, noting that appellant had attended physical therapy and that, by
May 2, 2011, appellant reported about 80 percent recovery.
In a report dated September 29, 2013, Dr. Lawrence Powell, Board-certified in sports
medicine, diagnosed a lumbar strain. He noted that appellant recalled that he injured his back on
September 28, 2013, due to working as a mail carrier.
In a diagnostic report dated January 8, 2016, Dr. Raul Paraliticci, a Board-certified
radiologist, examined the results of x-rays of appellant’s cervical spine. He noted no acute
process.
In a diagnostic report dated August 15, 2016, Dr. Almass Welji, a Board-certified
diagnostic radiologist, examined the results of a computerized tomography (CT) scan of
appellant’s head. He noted no intracranial abnormality with trace mucosal thickening in the
maxillary sinuses. On the same date Dr. Welji examined the results of a magnetic resonance
imaging (MRI) scan of appellant’s lumbar spine. He noted a mild disc bulge at L4-5 and L5-S1,
a central protrusion at L5-S1, and encroachment of nerve root foramina at L4-5 and L5-S1,
greater at L5-S1.
In an undated narrative statement received on October 18, 2016, appellant further
described the claimed injuries. He recalled a toe injury from when an “APC” (all-purpose
container) ran over his feet, a wrist injury from moving mail containers and equipment, a knee
injury from when someone driving equipment fell asleep, running into a wine container, which
ran into him and pinned him to a wall, lower and upper back injuries from driving a pallet jack,
using it to lift over 1,300 pounds of containers and packages of mail, when he slipped and fell off
the equipment because the equipment was defective, a neck injury from falling while working
mail, and anthrax exposure from when another employee blew anthrax powder in his face,
resulting in severe migraines. Appellant further noted that there had been bombs at two facilities
of the employing establishment, leaving him paranoid and uneasy. He further asserted that the
employing establishment made him work full duty while he was injured. Appellant stated that
the duties he claimed had caused his condition began in 2006, and that he had no prior severe
conditions similar to his injuries prior to working for the employing establishment.
In a narrative statement dated July 27, 2016, appellant described the circumstances of
several claimed injuries. He noted that on December 13, 2013 his body shut down from
overheating when he arrived home from work, leaving him paralyzed on the floor for over six
hours. On December 14, 2015 appellant visited a physician and was examined, noting damaged
discs in his neck and migraines. He noted that on July 17, 2016 he overheated again, while his
wife took care of him the whole day. Appellant stated that he could not lift anything.

3

By decision dated November 4, 2016, OWCP denied appellant’s claim. It found that he
failed to submit sufficient medical evidence to establish a causal relationship between his
claimed injuries and factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of proof to establish 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 employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
2

Id.

3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

5

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

4

supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
OWCP accepted that appellant was a federal civilian employee who filed a timely claim,
that the employment factors occurred as alleged, and that a medical condition had been
diagnosed. It denied his claim because he had not submitted sufficient medical evidence to
establish that his diagnosed conditions were caused or aggravated by factors of his federal
employment. The Board finds that appellant has not met his burden of proof to establish that his
diagnosed conditions are causally related to the accepted factors of his federal employment.
Appellant alleged that he first became aware that his lumbar conditions and migraine
headaches were causally related to his federal employment in March 2013. The record reflects
that appellant sought medical treatment with Dr. Bennett in March 2013, who diagnosed a
lumbar strain. Appellant was also treated by Dr. Meka in April 2013, who diagnosed lumbar
strain and migraine headache. In September 2013, he sought treatment with Dr. Powell, and he
also diagnosed a lumbar strain. Although appellant submitted medical reports from various
physicians diagnosing conditions related to migraines and a lumbar sprain, none of the medical
reports contained any opinion on the cause of these conditions. At most, the physicians merely
noted appellant’s reported history of injury, rather than offering their own opinions on
causation.10 The Board has held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.11
The Board notes that an opinion explaining how the alleged factors of employment
caused the diagnosed conditions is especially important if the record reflects that appellant had
preexisting conditions.12 Dr. Meka reported on August 24, 2001 that appellant was diagnosed
with migraine and low back pain. Her records also documented that appellant was treated for
these conditions in 2008 and 2009. Appellant was also treated by Dr. Dawkins in 2011 for
lumbar sprain/strain. 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

8
9

Leslie C. Moore, 52 ECAB 132, 134 (2000).
Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

10

See D.D., Docket No. 15-0291 (issued May 22, 2015); see also S.J., Docket No. 15-1728 (issued
December 3, 2015).
11

See C.B., Docket No. 09-2027 (issued May 12, 2010); see also S.E., Docket No. 08-2214 (issued May 6, 2009).

12

A.C., Docket No. 16-0452 (issued October 27, 2017).

5

between the effects of the work-related injury or disease and the preexisting condition.13 As the
reports from Drs. Bennett, Mekla, Powell and Dawkins were unrationalized, they were
insufficient to establish causal relationship and were of limited probative value.14
The record also contains a number of diagnostic reports from Drs. Black, Weiji, and
Paraliticci. The Board has held that reports of diagnostic tests are of limited probative value as
they fail to provide an opinion on the causal relationship between appellant’s employment duties
and the diagnosed conditions. For this reason, this evidence is insufficient to meet his burden of
proof.15
Finally, the Board notes that the record also contains a March 29, 2013 report from
Physician Assistant Maya Acharya. Physician assistants16 are not considered physicians under
FECA, and their opinions are therefore of no probative medical value.17 This report is therefore
insufficient to meet appellant’s burden of proof to establish causal relationship.
As appellant failed to submit any rationalized medical evidence to support his allegation
that his claimed conditions were caused by factors of his federal employment, he has not met his
burden of proof.18
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an
occupational disease causally related to factors of his federal employment.

13

Id.

14

See S.D., Docket No. 16-0999 (issued October 16, 1017).

15

S.G., Docket No. 17-1054 (issued September 14, 2017).

16

Allen C. Hundley, 53 ECAB 551(2002).

17

See David P. Sawchuk, 57 ECAB 316, 320n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law). See also M.J., Docket No. 171241 (October 17, 2017).
18

Supra note 4.

6

ORDER
IT IS HEREBY ORDERED THAT the November 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7