United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
N.E., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMPOUND, Fort Campbell, KY, Employer
_________________________________________

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

Docket No. 13-187
Issued: April 19, 2013

Case Submitted on the Record

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

JURISDICTION
On November 1, 2012 appellant filed a timely appeal from the October 23, 2012 Office
of Workers’ Compensation Programs’ (OWCP) nonmerit decision which denied his request for
reconsideration. Appellant also timely appealed an October 3, 2012 decision, which denied his
claim for a schedule award. 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 nonmerit decision and
the schedule award determination.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
is entitled to a schedule award; and (2) whether OWCP properly refused to reopen appellant’s
case for further review of the merits of his claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 30, 2009 appellant, then 35-year-old supervisory firefighter filed a
traumatic injury claim on November 30, 2009. He alleged that he was getting gear from the gear
room and twisted his back, possibly aggravating a preexisting back condition. Appellant stopped
work on November 30, 2009. OWCP accepted the claim for herniated nucleus pulposus at
L5-S1. Appellant received appropriate compensation benefits.
In a December 9, 2009 report, Dr. Barbara Schibly, Board-certified in preventative
medicine, advised that, on November 30, 2009, she saw appellant for “complaints of sudden
onset of severe lower back pain sustained when he bent over to pick up his firefighting gear that
morning.” She advised that the pain was primarily located in the right lower lumbar area with
radiation and numbness to the right buttock. Dr. Schibly examined appellant and determined that
appellant was “extremely uncomfortable in any position and was having difficulty walking due
to pain.” She indicated that diagnostic tests revealed a mild right central and paracentral
herniation of the L5-S1 disc with slight impingement on the L5 root sleeve. Dr. Schibly
explained that, while appellant had back pain in the past, the MRI scan finding of herniation of
the L5-S1 disc was consistent with the history, symptoms and physical examination. She opined
that appellant’s herniation at L5-S1 disc occurred when he bent over to pick up his gear.
Dr. Schibly placed appellant on three months of light duty with no lifting. Appellant continued
to be treated for his condition by several physicians.
In 2011 OWCP referred appellant for a second opinion examination with Dr. James G.
Warmbrod, a Board-certified orthopedic surgeon. In a May 26, 2011 report, Dr. Warmbrod
noted appellant’s history of injury and treatment. He determined that appellant’s work injury
had not resolved and opined that the surgery at L5 was necessary and due to the work injury.
On August 11, 2011 Dr. Richard Berkman, a Board-certified neurological surgeon,
performed an authorized lumbar laminectomy and discectomy at L5-S1 and an osteotomy at L5
vertebral body to reduce retrolisthesis. On March 20, 2012 he released appellant to work without
restrictions.
On August 24, 2012 appellant claimed a schedule award. He later submitted an April 16,
2012 report from Dr. Charles Kaelin, a Board-certified orthopedic surgeon, who advised that he
could return to regular duty. Dr. Kaelin utilized the American Medical Association, Guides to
the Evaluation of Permanent Impairment, (6th ed. 2009) (hereinafter, A.M.A., Guides) and
opined that appellant had 11 percent whole person impairment to the back. He indicated that
appellant reached maximum medical improvement on April 12, 2012.
By letter dated August 30, 2012, OWCP advised that FECA does not allow for an award
of permanent impairment to the spine.2 It stated that such awards can be paid for impairment of
the upper or lower extremities caused by injury to a spinal nerve. OWCP noted that, if appellant
had a work-related spinal nerve injury which has caused impairment to the extremities, he should
submit an impairment rating of the affected extremities using the article entitled “Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition” which was published in the July/
2

The letter was sent to Dr. Berkman and to appellant.

2

August 2009 The Guides Newsletter, a supplemental publication of the A.M.A., Guides, which
had been incorporated into OWCP’s procedure manual. OWCP did not receive a rating.
In a September 6, 2012 report, an OWCP medical adviser noted appellant’s history of
injury and treatment. He explained that appellant did well following his surgeries for L5-S1
herniated nucleus pulposis and retrolisthesis and right S1 radiculopathy. Additionally, the
medical adviser indicated that appellant had good motion and no pain on straight leg raising
postoperatively. He noted that appellant had normal motor strength and normal sensation in both
lower extremities with no postoperative evidence of radiculopathy in the lower extremity.
OWCP’s medical adviser indicated that while appellant’s physician gave 11 percent whole
person impairment for spinal impairment using lumbar spine regional grids in the A.M.A.,
Guides, OWCP did not consider impairment of the spine or whole person. He indicated that,
since there was no motor or sensory deficit of the lower extremities from spinal nerve root
extremity impairment, the schedule award for the lower extremities was equal to zero percent.
On October 3, 2012 OWCP denied appellant’s claim for a schedule award finding that
the medical evidence did not support a ratable impairment of a scheduled body member.
On October 8, 2012 appellant requested reconsideration and submitted additional
evidence. He indicated that he believed he was entitled to receive a schedule award as he was in
daily pain. Appellant submitted a copy of the April 12, 2012 report from Dr. Kaelin. Also
submitted was a partial copy of Dr. Warmbrod’s May 26, 2011 report.
By decision dated October 23, 2012, OWCP denied appellant’s request for
reconsideration without a review of the merits on the grounds that his request was insufficient to
warrant review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
A schedule award can be paid only for a condition related to an employment injury. A
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.3
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.4 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the

3

Veronica Williams, 56 ECAB 367 (2005).

4

5 U.S.C. § 8107.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

3

appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.7
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.10 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.11
ANALYSIS -- ISSUE 1
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the sixth edition of the A.M.A., Guides.
OWCP accepted appellant’s claim for herniated nucleus pulposus at L5-S1. Appellant
claimed a schedule award and submitted a report from his treating physician, Dr. Kaelin, who
opined that he had 11 percent whole person impairment for spinal impairment. FECA does not
provide a schedule award based on whole person impairments.12 Additionally, Dr. Kaelin did
not otherwise provide findings that correlated with the sixth edition of the A.M.A., Guides or
The Guides Newsletter that showed a ratable permanent impairment of a scheduled body member
due to the accepted conditions. Thus, his opinion is of diminished probative value.
6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
8

Pamela J. Darling, 49 ECAB 286 (1998).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

L.J., Docket No. 10-1263 (issued March 3, 2011).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
12

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither FECA, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).

4

In a September 6, 2012 report, OWCP’s medical adviser reviewed Dr. Kaelin’s report13
and explained that appellant did well following his surgeries with good motion and no pain on
straight leg raising. He noted that appellant had normal motor strength and normal sensation in
both lower extremities with no postoperative evidence of radiculopathy in the lower extremity.
OWCP’s medical adviser noted that spine and whole person impairment could not be considered.
He indicated that, since there was no motor or sensory deficit of the lower extremities from
spinal nerve root impairment, there was no basis under the A.M.A., Guides, on which to attribute
any permanent impairment of the lower extremities to appellant’s accepted conditions. OWCP’s
medical adviser concluded that there was no ratable impairment to the lower extremities.
The Board finds that OWCP’s medical adviser properly explained that there was no
objective medical evidence to support impairment to the lower extremities. Appellant did not
submit any other medical evidence to support that he was entitled to a schedule award, under the
A.M.A., Guides, or The Guides Newsletter, for a scheduled member of the body under FECA.
Accordingly, the Board finds that appellant has not established entitlement to a schedule award.
On appeal, appellant argues that he submitted diagnostic reports which show that his
injury has worsened. However, as noted above, the medical evidence does not demonstrate a
ratable impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,14 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(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].”15

13

Although he indicated Dr. Berkman, this appears to be a transcription error as the record indicates that it was
from Dr. Kaelin.
14

5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.606(b).

5

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.16
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim for a schedule award and requested
reconsideration on October 8, 2012
Appellant does not make any argument that OWCP erroneously applied or interpreted a
specific point of law or advanced a relevant legal argument not previously considered by OWCP.
He argued that he continued to be in pain and suffer from his accepted condition. However,
appellant did not submit any new medical evidence to support that he sustained ratable
impairment. He submitted a portion of Dr. Warmbrod’s second opinion report. However, the
Board notes that the report of Dr. Warmbrod is not new and relevant. Likewise, Dr. Kaelin’s
April 16, 2012, report, noting whole person impairment, was also previously of record and
considered by OWCP.17
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered.
OWCP did not abuse its discretion in refusing to reopen his claim for a review on the merits in
its October 23, 2012 nonmerit decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he is
entitled to a schedule award. The Board also finds that OWCP properly refused to reopen
appellant’s case for further review of the merits of his claim under 5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.608(b).

17

See James W. Scott, 55 ECAB 606 (2004) (evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case).

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ORDER
IT IS HEREBY ORDERED THAT the October 23 and 3, 2012 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: April 19, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 13-593
Issued: July 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 18, 2013 appellant, through her attorney, filed a timely appeal from an
August 1, 2012 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 established a recurrence of disability commencing
June 30, 2010.
FACTUAL HISTORY
On March 15, 2004 appellant, then a 61-year-old mail carrier, filed a traumatic injury
claim (Form CA-1), alleging that on March 1, 2004 she sustained a knee injury in the
performance of duty. She indicated that her knee buckled while descending stairs. OWCP
1

5 U.S.C. § 8101 et seq.

accepted the claim for aggravation of left knee internal derangement. Appellant returned to a
light-duty position and continued to work light duty.
In a report dated June 29, 2010, Dr. Mitchell Goldstein, a Board-certified orthopedic
surgeon, noted that appellant had complaints with respect to the right foot.2 The record indicates
that appellant retired from federal employment on June 30, 2010.
In a report dated July 27, 2010, Dr. Goldstein provided a history and results on
examination for the left knee. He indicated that appellant did not report any new complaints
with respect to the left knee. The diagnoses included internal derangement, osteoarthritis of the
knee, anterior cruciate ligament tear and a torn meniscus.
Appellant completed a notice of recurrence of disability (Form CA-2a) on September 28,
2010, indicating June 30, 2010 as the date of recurrence. She stated that she worked light duty
until the employing establishment would no longer provide light duty.
With respect to medical evidence, appellant submitted reports dated October 5,
November 2 and 30, 2010 and February 15, 2011 from Dr. Goldstein regarding continuing
treatment for the left knee. Dr. Goldstein provided results on examination and indicated that
appellant “denies any new orthopedic conditions/problems.” He indicated that she continued to
have work restrictions. In a letter dated May 16, 2011, appellant’s representative argued that
appellant retired because no light duty was available. He also argued that “no seat” was
provided for light-duty work.
In a memorandum of telephone call dated April 12, 2011, OWCP indicated that the
employing establishment reported that appellant’s retirement code was for a regular retirement.
An employing establishment form indicated that appellant retired June 30, 2010.
By decision dated July 5, 2011, OWCP denied the claim for a recurrence of disability. It
found that the evidence was insufficient to establish the claim.
On July 6, 2011 OWCP received a June 29, 2011 letter from the employing establishment
indicating that appellant had been offered another light-duty position on April 6, 2009, but had
refused the offer. According to the employing establishment, there was a work status meeting
scheduled for July 1, 2010, but appellant had retired on June 30, 2010. It stated that, before the
National Reassessment Program (NRP) could begin, an employee must be working. The letter
stated that appellant had retired of her own volition.
In a letter dated May 1, 2012, counsel requested reconsideration. Appellant argued that
the medical evidence showed that she had additional employment-related injuries. The medical
evidence submitted included a September 6, 2006 report from Dr. Goldstein, who provided a
history and results on examination. Dr. Goldstein noted both a September 1996 foot injury and

2

The record indicates that appellant has another claim for injury with respect to the ankle, which is not before the
Board on this appeal. There is a June 15, 2010 report regarding the left knee, with no physician’s signature or any
indication as to who prepared the report.

2

the March 1, 2004 left knee injury.
impairment.

He found that appellant had a 65 percent left knee

By decision dated August 1, 2012, OWCP reviewed the merits of the claim and denied
modification. It found that the evidence was insufficient to establish a recurrence of disability as
of June 30, 2010.
LEGAL PRECEDENT
OWCP’s regulations define the term recurrence of disability as follows:
“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. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.4 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
ANALYSIS
The record indicates that appellant was working a light-duty position, retired on June 30,
2010 and subsequently filed a claim for a recurrence of disability as of June 30, 2010. As the
above standard indicates, a claimant can establish a recurrence of disability by showing a change
in the nature and extent of the injury-related condition or a change in the nature and extent of the
light-duty requirements.
3

20 C.F.R. § 10.5(x).

4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
5

Maurissa Mack, 50 ECAB 498 (1999).

3

With respect to a change in the employment-related condition, the medical evidence of
record is not sufficient to establish a recurrence of disability. The reports from Dr. Goldstein
concerning the left knee did not discuss a change in the nature of an employment-related
condition as of June 30, 2010. Dr. Goldstein continued to treat appellant for left knee symptoms
but he did not discuss any change in an employment-related condition on or about June 30, 2010.
His reports continued to state that appellant reported no new orthopedic problems. Appellant
argued that the employing establishment did not provide a “seat” for light-duty work, without
additional explanation. To the extent she is arguing that there was a change in an employmentrelated condition requiring a specific type of seat, there was no probative medical evidence
submitted on this issue.
On reconsideration, appellant argued that there were additional employment-related
conditions and submitted a September 6, 2006 report from Dr. Goldstein as to a permanent
impairment. This report is of little probative value with respect to her condition as of
June 30, 2010. The Board notes that, while Dr. Goldstein provided a number of left knee
diagnoses, including an anterior cruciate ligament tear and a torn meniscus, he does not discuss
causal relationship with employment. Moreover, even if additional conditions were established
as related to the Mach 1, 2004 injury, the evidence would still have to establish a change in an
employment-related condition causing disability for the light-duty job on or after June 30, 2010.
Appellant also argued that the employing establishment withdrew the light-duty job. As
noted above, if a light-duty job is withdrawn this may support a recurrence of disability. In this
case, however, the evidence of record did not establish that the light-duty job was withdrawn as
of June 30, 2010. The employing establishment indicated that, while an NRP action was
contemplated,6 the process had not actually begun as of June 30, 2010. There was a work status
meeting scheduled, but appellant retired prior to the meeting. Appellant voluntarily retired as of
June 30, 2010 and the record did not establish that the light-duty position had been withdrawn.
On appeal, counsel stated that the retirement on June 30, 2010 was based on statements
that no further work would be provided in the light-duty position. As noted above, the evidence
of record does not establish that the light-duty position was withdrawn by the employing
establishment on June 30, 2010. The Board finds that appellant has not established either a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty requirements. Appellant may submit new evidence or argument with a
written application 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 established a recurrence of disability commencing
June 30, 2010.

6

FECA Bulletin 09-05 (issued August 18, 2009) discusses claims for compensation when a position has been
withdrawn pursuant to NRP.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2012 is affirmed.
Issued: July 8, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hillsdale, MI, Employer
__________________________________________

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

Docket No. 14-501
Issued: June 12, 2014

Case Submitted on the Record

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

JURISDICTION
On January 7, 2014 appellant filed a timely appeal of a September 24, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant established a left shoulder or neck injury in the
performance of duty on May 10, 2013.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 24, 2013 decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On May 10, 2013 appellant, then a 54-year-old city carrier, filed a traumatic injury claim
alleging that she sustained a left elbow bruise and contusion on that date when she fell on
concrete while delivering mail. She was provided a Form CA-16 authorization for examination
and/or treatment that day from her supervisor.3
A May 10, 2013 report from Hillsdale Community Health Center Emergency Department
noted that appellant was seen that day and evaluated by Melva Wolcott, a nurse practioner.
Appellant was seen for a left knee abrasion and contusion to the left elbow, hip and knee.
Diagnostic studies were obtained. Appellant was instructed not to work the following day and to
follow up with her physician.
In a May 10, 2013 report, Rebecca Brownlee, a nurse, provided a medical history and
physical findings. She noted that appellant was seen after she fell. Under history of the injury,
Ms. Brownlee noted injuries to the left hip, knee and elbow with abrasions on the left knee and
elbow. Appellant reported neck and back pain and left arm weakness.
The x-rays taken on May 10, 2013 revealed no left hip abnormality and left hip and
elbow degenerative changes without fracture or destructive bone pathology.
In a June 3, 2013 report, Dr. Laurie L. Barkway, a treating Board-certified osteopathic
family practitioner, reported that appellant was seen for left shoulder and neck pain complaints
following a fall at work. The physical examination revealed neck swelling, pain and stiffness
and joint and muscle pain. Dr. Barkway diagnosed acute neck pain and referred appellant to
physical therapy.
On June 6, 2013 appellant filed a claim for a recurrence of disability for her neck pain
which she attributed to the May 10, 2013 employment incident.
OWCP received a June 3, 2013 physical therapy prescription by Dr. Barkway and a
physical therapy treatment note which reported a diagnosis of cervicalgia and calcified shoulder
tendinitis. Appellant was evaluated on June 5, 2013 and received physical therapy treatment
from June 5 to July 15, 2013.
By letter dated August 16, 2013, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. Appellant was advised as to the medical and factual
evidence required to establish her claim and given 30 days to provide this information.
In response to OWCP’s request, appellant submitted physical therapy notes for treatment
from July 15 through August 21, 2013.

3

Where an employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. Tracey P. Spillane, 54 ECAB 608 (2003).

2

By decision dated September 24, 2013, OWCP denied appellant’s claim. It accepted the
May 10, 2013 incident but found insufficient medical evidence on causal relation.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
OWCP regulations define the term occupational disease or illness as a condition
produced by the work environment over a period longer than a single workday or shift.6 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, 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 employment factors identified by the claimant.7
If a claimant does establish an employment factor, he or she must submit medical
evidence showing that a medical condition was caused by such a factor.8 The medical evidence
required to establish causal relationship is generally rationalized medical opinion evidence from
a physician. 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
ANALYSIS
Appellant filed a traumatic injury claim alleging that on May 10, 2013 she sustained left
elbow bruise and contusion when she fell on concrete after tripping while delivering mail. By
4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

20 C.F.R. § 10.5(ee). See S.M., Docket No. 09-2290 (issued July 12, 2010); Donald W. Wenzel, 56 ECAB
390 (2005).
7

D.U., Docket No. 10-144 (issued July 27, 2010); Roy L. Humphrey, 57 ECAB 238 (2005); Frankie A. Farinacci,
56 ECAB 723 (2005).
8

C.D., Docket No. 09-1881 (issued April 20, 2010); Effie Morris, 44 ECAB 470 (1993).

9

D.S., Docket No. 09-860 (issued November 2, 2009); I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007);
Solomon Polen, 51 ECAB 341 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

3

decision dated September 24, 2013, OWCP denied her claim. It accepted that the incident at
work occurred as alleged but found that the medical evidence was not sufficient to establish
causal relation.
The Board finds that the medical evidence submitted by appellant is insufficient to
establish that she sustained an injury due to the accepted May 10, 2013 employment incident.
Appellant submitted a June 3, 2013 report from Dr. Barkway diagnosing acute neck pain.
Dr. Barkway also provided a physical therapy prescription with the diagnoses for cervicalgia and
calcified shoulder tendinitis. He noted that appellant had left shoulder and neck pain complaints
following a fall at work. Dr. Barkway did not set forth any history of the May 10, 2013 incident
or provide an opinion to the cause of her neck and left shoulder conditions. Medical evidence
which does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value.10
Appellant also submitted reports from Ms. Wolcott and Ms. Brownlee, nurse
practitioners. The Board notes that a nurse is not a physician as defined under FECA.11
Accordingly, medical opinions from Ms. Wolcott or Ms. Brownlee regarding diagnosis and
causal relationship are of no probative medical value.12 Similarly the physical therapy treatment
notes do not constitute competent medical opinion evidence. A physical therapist is not a
physician and is not competent to render a medical opinion under FECA.13
The x-ray interpretations are diagnostic in nature and do not provide any opinion on the
cause of appellant’s claimed condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.14 Causal relationship must be established by
rationalized medical opinion evidence from a physician based on a full and accurate history of
the claim.

10

S.E., Docket No. 08-2214 (issued May 6, 2009); K.W., 59 ECAB 271 (2007); Jaja K. Asaramo, 55 ECAB
200 (2004); Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).
11

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2);
G.A., Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse had no probative medical value
as a nurse is not a “physician” as defined under FECA); Roy L. Humphrey, supra note 7.
12

See G.A., supra note 11; Thomas L. Agee, 56 ECAB 465 (2005) (a medical report may not be considered
probative medical evidence unless it can be established that the person completing the report is a “physician” as
defined in 5 U.S.C. § 8101(2)).
13

See S.S., Docket No. 14-23 (issued April 16, 2014); David P. Sawchuk, 57 ECAB 316 (2006).

14

See D.U., supra note 7; D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48
ECAB 115 (1996).

4

OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed left ankle condition was causally related to her employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a diagnosed medical
condition causally related to the accepted May 10, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 24, 2013 is affirmed.
Issued: June 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
PLANT HEALTH INSPECTION SERVICE,
Alpena, MI, Employer
__________________________________________

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

Docket No. 16-1013
Issued: September 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 12, 2016 appellant filed a timely appeal from a March 21, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of his
medical condition as of February 23, 2015 causally related to the March 24, 2009 accepted
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 24, 2009 appellant, then a 51-year-old veterinarian, filed a traumatic injury
claim (Form CA-1) alleging that on that same date, while he was working with cattle doing a
tuberculosis screening, he attempted to tag a cow and the cow hit him in the face causing him to
fall backwards. OWCP accepted his claim for chin laceration and closed fracture of the right
base of the skull without intracranial injury and no loss of consciousness. Appellant stopped
worked intermittently after the injury and returned to full-time work on May 5, 2009.
Medical evidence of record includes March 24, 2009 emergency room records from
Dr. Dane Chapman, Board-certified in emergency medicine, who treated appellant for head
trauma. Appellant reported being hit in the head by a cow when he was attempting to tag the
animal. He noted a chin laceration. A head computerized tomography (CT) scan revealed a
laceration through the temporal bone forming the anterior external auditory canal. Dr. Chapman
diagnosed complex through and through laceration, eight centimeters left chin, right anterior
temporal bone fracture with obstruction of the external auditory canal and closed head injury.
Appellant submitted an authorization for examination and/or treatment (Form CA-16) prepared
by Dr. Chapman dated March 24, 2009, who treated him for a chin and right face injury
sustained when appellant was hit by a cow. He noted findings of a complete left chin laceration
full thickness, blood in the right ear canal, and a head injury. Dr. Chapman repaired three
lacerations on the chin and referred appellant to an otolaryngologist. A March 24, 2009 x-ray of
the mandible was normal while a March 24, 2009 CT scan of the head revealed a fracture of the
scull base of the anterior bony margin at the external auditory canal on the right.
Appellant was treated by Dr. Richard C. Schultz, Jr., a Board-certified otolaryngologist,
on April 16, 2009. Dr. Schultz performed otologic evaluation and audiometric testing. He
reported that appellant had sustained facial injuries when he was struck in the face by a cow
while trying to perform tuberculosis screening. A CT scan revealed a temporal bone fracture in
the portion of the right temporal bone lateral to the tympanic membrane over the glenoid fossa.
Dr. Schultz noted an oral examination was clear, dentition was in fine repair, and occlusion
appeared normative, with no tenderness in the temporomandibular joint (TMJ) region. He
diagnosed temporal bone fracture which was lateral to the glenoid fossa which may cause
disability with mastication.
Dr. Schultz performed audiometric testing and diagnosed
sensorineural hearing loss.
Appellant was treated by Dr. Michael J. Steber, a dentist, who reported, in an April 27,
2009 report, that appellant’s lower jaw felt more forward and his bite was not aligned. Upon
examination appellant’s bite looked normal, his second bite appeared more “end to end” with no
popping or pain in the jaw area. Dr. Steber noted that appellant may have TMJ disorder. The
initial evaluation and x-rays were performed on March 24, 2009 when appellant was swollen and
in pain and he was instructed to return when his discomfort subsided. In a June 3, 2010 letter,
the financial coordinator for Dr. Steber indicated that on December 22, 2009 Dr. Steber repaired
teeth number 23, 24, and 25 which were chipped when he was kicked in the face by a cow.
In a June 9, 2010 letter to Dr. Steber, OWCP denied authorization for the medical
treatment of appellant’s teeth. It noted that there was no corresponding medical documentation
to support that he sustained injuries to his teeth as alleged due to the work injury. OWCP noted

2

that the original medical evidence from March 24, 2009 indicated that the teeth were intact and
the mandible was nontender but there was no mention of a chipped tooth. It requested Dr. Steber
to provide copies of the office visits that support that appellant sustained an injury to his number
23, 24, and 25 teeth as a result of the work injury of March 24, 2009.2
On May 15, 2015 appellant filed a notice of recurrence (Form CA-2a) beginning
February 23, 2015 causally related to the March 24, 2009 accepted work injury. He sought
medical treatment only. Appellant noted that he returned to regular duty following the original
injury and was not limited in performing his usual duties. He indicated that the recurrence was
detected on routine x-rays by his dentist and the injured tooth from the March 24, 2009 work
injury required a root canal. Appellant advised that his dentist warned him that his injured teeth
may require further treatment.
In an undated narrative statement, appellant indicated that his initial injury occurred on
March 24, 2009 and he was treated in the emergency room for a laceration on his chin and a
temporal bone fracture. On March 24, 2009 he was also seen by his dentist, Dr. Steber, for
evaluation of several injured teeth. The lower anteriors were determined to be the injured teeth.
Appellant noted being treated on October 15, 2009 for chips on his teeth which occurred on
March 24, 2009. He stated that the dentist’s notes specifically mention number 23 IL and
number 25 IL. Appellant was referred to an endodontist for a root canal on tooth number 23. He
noted that Dr. Steber advised that he could develop future issues.
In support of his claim, appellant submitted treatment records from Dr. Steber dated
April 8, 2009 to October 18, 2011 who performed dental cleanings, crowns, and root canals. On
March 24, 2009 he presented and reported that he had injured the lower anterior in an altercation
with a cow. Appellant reported being treated in the emergency room. Dr. Steber instructed
appellant to return when the pain and swelling had subsided. On April 27, 2009 appellant
presented with complaints of lower jaw pain, his jaw felt more forward, and his bite was off.
Dr. Steber noted findings that appellant’s bite looked good and his second bite was more end to
end signaling a TMJ issue. He noted that there was no popping or pain in the jaw area and
recommended Ibuprophen. Dr. Steber noted that appellant may need future care. On
October 15, 2009 he stated that appellant presented with chips on tooth numbers 23 and 25
noting these resulted from the previous injury. Dr. Steber noted that appellant was also grinding
his teeth and recommended a bite splint. On December 22, 2009 he repaired teeth number 23
and 25.
Also submitted was a note from Dr. Geoffrey J. Carter, a dentist specializing in
endodontics, dated February 23, 2015, which noted that appellant had a toothache at number 23
and required evaluation.

2

On October 20, 2010 appellant filed a notice of traumatic injury alleging that on October 19, 2010 he injured his
left hand while testing a cow for tuberculosis when his left hand became pinned between the animal and a metal
plate. Appellant submitted an x-ray of the left hand dated November 1, 2010 which was normal. An x-ray of the
lumbosacral spine revealed degenerative disc disease at L2-3 and L3-4. The record does not indicate that OWCP
further developed this matter and it is not before the Board on the present appeal.

3

By letter dated August 26, 2015, OWCP advised appellant of the type of factual and
medical evidence needed to establish his recurrence claim. It particularly requested that he
submit a physician’s reasoned opinion addressing the relationship of his claimed condition and
specific employment factors. OWCP allotted 30 days to submit the requested evidence.
In a decision dated September 30, 2015, OWCP found that the evidence of record did not
establish that appellant required additional medical treatment due to a worsening of his accepted
work-related conditions.
In a December 7, 2015 appeal request form, received by OWCP on December 23, 2015,
appellant requested reconsideration. He completed an OWCP questionnaire regarding his
recurrence claim and noted that on February 23, 2015 he attended his sixth-month dental
checkup and was diagnosed with periapical abscess with fistula on tooth number 23. Appellant
indicated that the dental records on the day of the injury showed injury to tooth number 23 and
the dentist warned about possible future issues. He noted that his chipped teeth were repaired
including tooth numbers 23 and 25 on December 22, 2009 and September 16, 2010.
Appellant submitted a report from Dr. Steber dated October 12, 2015 who noted treating
appellant on March 24, 2009 after a work-related altercation with a cow. He reported being
treated for a laceration to the face, trauma to lower anterior and broken temporal bone.
Dr. Steber noted that on the initial examination x-rays were taken on March 24, 2009 which
revealed no obvious fractures, chipped teeth number 23 IL and 25 IL. He diagnosed periapical
abscess with fistula. Dr. Steber noted that appellant was seen on April 27, 2009 for lower jaw
pain and his bite felt off and more forward. He noted the restorative treatment on teeth 23 IL and
25 IL was completed on December 22, 2009 and June 16, 2010. Dr. Steber noted teeth number
21B, 22ML, 23 IDL, and 24 MLI were restored on October 18, 2011. He referred appellant to
Dr. Carter, an endodontist, for tooth 23 IL due to an abscess resulting from getting hit in the
mouth by a cow.
In a decision dated March 21, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
A recurrence of medical condition refers to a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original treatment or injury is not
considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.3
An employee who claims a recurrence of medical condition has the burden of proof to
establish causal relationship by the weight of substantial, reliable, and probative evidence. This
burden requires that an employee furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the employee’s need for

3

20 C.F.R. § 10.5(y).

4

additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning.4
ANALYSIS
OWCP accepted appellant’s claim for chin laceration and closed fracture of the right base
of the skull without intracranial injury and no loss of consciousness. Appellant worked
intermittently thereafter. On May 15, 2015 he filed a claim for a recurrence of medical condition
alleging that on February 23, 2015 his current tooth conditions were causally related to the
March 24, 2009 work injury which was detected on routine dental x-rays and required a root
canal. The Board finds that the medical record lacks a well-reasoned narrative from appellant’s
physicians relating appellant’s claimed recurrent condition beginning February 23, 2015 to his
accepted employment injury.
Appellant submitted medical records from Dr. Steber. On March 24, 2009 Dr. Steber
related that appellant presented and reported that he injured the lower anterior in an altercation
with a cow. He instructed appellant to return when the pain and swelling had subsided. On
April 27, 2009 appellant returned with complaints of lower jaw pain and his jaw felt misaligned
and his bite was off. Dr. Steber noted that there was no sensitivity but just bite issues. He
examined appellant and felt that he could have a TMJ issue. On October 15, 2009 Dr. Steber
advised that appellant presented with chips on teeth numbers 23 and 25 as a result of his prior
injury. However, he did not otherwise explain how these dental conditions were due to the
employment injury. This is especially important where there is no mention of chipped teeth in
earlier reports from Dr. Steber or in the initial emergency room records.5
In an October 12, 2015 report, Dr. Steber noted having treated appellant on March 24,
2009 after a workplace incident with a cow. He noted that on the initial examination x-rays were
taken on March 24, 2009 which showed no obvious fractures but did reflect chipped teeth
numbers 23 IL and 25 IL which would need to be repaired at a future date. Dr. Steber diagnosed
periapical abscess with fistula. He noted that appellant was seen on April 27, 2009 for lower jaw
pain and for his bite. Dr. Steber indicated that restorative treatment on appellant’s teeth was later
performed. OWCP has not accepted any chipped teeth as employment related.6 Additionally,
Dr. Steber has not provided medical reasoning explaining how any dental condition was caused
or aggravated by the employment injury of March 24, 2009. The Board has found that vague
and unrationalized medical opinions on causal relationship have little probative value.7
Also submitted was a note from Dr. Carter, dated February 23, 2015, which noted that
appellant had a toothache at number 23 and required evaluation. However, this note is of limited
4

E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012).

5

See S.S., 59 ECAB 315 (2008) (the Board has held that contemporaneous evidence is entitled to greater
probative value than later evidence).
6

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury).
7

See Jimmie H. Duckett, 52 ECAB 332 (2001).

5

probative value as Dr. Carter did not specifically address whether appellant had a condition
causally related to the accepted employment condition.8
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 in establishing a
recurrence of a medical condition causally related to his accepted March 24, 2009 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2016 decision of the Office of
Workers’ Compensations Programs is affirmed.
Issued: September 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

See K.W., 59 ECAB 271 (2007) (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).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Mary, FL, Employer
__________________________________________

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

Docket No. 09-1307
Issued: January 28, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On April 22, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 25, 2009 which affirmed the
September 15, 2008 denial of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits in this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
an injury in the performance of duty, causally related to factors of his federal employment.
FACTUAL HISTORY
On May 22, 2008 appellant, then a 61-year-old mail processing equipment mechanic,
filed an occupational disease claim alleging that he developed degenerative joint disease and
severe arthritis in both shoulders in the performance of duty. He performed repetitive heavy
lifting of motors and machine parts, worked in awkward, contorted and overhead positions and in
tight spaces. Appellant was first aware of his condition and of its relation to his work on
February 12, 2008. He stopped work on February 5, 2008.

By letters dated July 31 and August 1, 2008, the Office advised appellant that additional
factual and medical evidence was needed. It requested a physician’s opinion addressing causal
relationship and provided him 30 days to submit the requested information.
In a letter dated August 21, 2008, the employing establishment noted that appellant had
advanced bilateral degenerative joint disease and a significant deformity of both humeral heads.
Appellant had surgery in April 2008 and there was no mention in the medical records of any
work-related condition.
A February 12, 2008 x-ray of the shoulders read by Dr. Patrick W. White, a Boardcertified surgeon and radiologist, revealed increasing advanced bilateral changes. Dr. White also
noted that appellant had a significant deformity of both humeral heads. The Office also received
nurse’s notes dated March 5, April 18 and 21, 2008.
In a March 9, 2008 duty status report, Dr. Francisco S. Garcia-Lopez, a Board-certified
physiatrist, noted that appellant had degenerative joint disease and diagnosed bilateral shoulder
osteoarthritis. Appellant worked in confined areas and inside equipment. Dr. Garcia-Lopez
found that appellant could not resume regular duty but could perform limited duties. He
specified lifting no more than 15 to 20 pounds intermittently for two hours per day; standing for
no more than seven hours per day; and no more than four hours of walking, kneeling, bending,
stooping, twisting, grasping and fine manipulation.
In a June 20, 2008 report, Dr. Ryan Simovitch, a Board-certified orthopedic surgeon,
advised that appellant was status post left total shoulder arthroplasty and that his current
condition started over a year earlier. He placed appellant off work for approximately 8 to 12
weeks. On August 26, 2008 Dr. Simovitch provided documentation regarding appellant’s
application for a disability retirement. Appellant was first seen on March 10, 2008 with a
complaint of bilateral shoulder pain which was determined to be severe degenerative joint
disease. On examination, Dr. Simovitch noted that appellant had significantly restricted range of
motion and pain with activities of daily living as well as chores at work. Appellant underwent a
left total shoulder replacement on April 21, 2008. Dr. Simovitch stated that appellant was unable
to do his normal activities as he was at significant risk of exacerbating his condition. He
reviewed appellant’s work description and diagnosed left shoulder osteoarthritis. Dr. Simovitch
recommended restrictions which included no walking on ladders, catwalks, walkways, scaffolds,
vertical lifts and platforms. He also indicated that appellant was unable to use his hand tools or
power tools.
By decision dated September 15, 2008, the Office denied appellant’s claim. It found that
the medical evidence did not establish that his degenerative disease was related to the accepted
work activities.
On September 22, 2008 appellant’s representative requested a telephonic hearing, which
was held on January 15, 2009. At the hearing, appellant stated that he was required to constantly
work with his arms extended and lift heavy objects and motors.
On October 17, 2008 Dr. Simovitch noted that he was requested to address the causal
relationship of appellant’s work and his shoulder arthritis which necessitated surgery on

2

April 12, 2008. He stated that appellant’s repetitive work-related activities contributed to the
erosion of cartilage and development of reactive osteoarthritis in the left shoulder joint.
Dr. Simovitch found no history of any previous fracture or trauma in the setting of profound
cartilage erosion and development of pain and stiffness over the years during which appellant
worked at the employing establishment.
By decision dated March 25, 2009, the Office hearing representative affirmed the
September 15, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 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.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 medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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
claimant.4

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

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ANALYSIS
The Office accepted that appellant was required to work with his arms extended and lift
heavy objects and motors. It denied his claim for compensation on the grounds that the medical
evidence was not sufficient to establish that his degenerative shoulder condition was causally
related to his employment.
However, the Board notes that the medical evidence submitted by appellant generally
supports that his osteoarthritis in the shoulders was aggravated by his repetitive weighted workrelated activities. On August 26, 2008 Dr. Simovitch reviewed appellant’s work description and
diagnosed left shoulder osteoarthritis. He noted that appellant underwent a total left shoulder
replacement in April 2008. Dr. Simovitch advised that appellant could work with restrictions but
he could not walk on ladders, catwalks, walkways, scaffolds, vertical lifts and platforms. He also
indicated that appellant had the inability to use his hand tools or power tools. On October 17,
2008 Dr. Simovitch opined that appellant’s repetitive work activities contributed to the erosion
of cartilage and development of reactive osteoarthritis in the left shoulder joint. He advised that
appellant had no previous history of fracture or trauma in the setting of profound cartilage
erosion or development of pain and stiffness over the years that appellant worked at the
employing establishment. The Board finds that Dr. Simovitch noted that he had read the
employment description, was aware of the employment activities and generally provided an
explanation on causal relationship between factors of appellant’s employment. Although the
reports are not sufficiently rationalized to meet appellant’s burden of proof in establishing his
claim, they stand uncontroverted in the record and are sufficient to require further development
of the case.5
Proceedings under the Act are not adversarial in nature nor is the Office a disinterested
arbiter. While appellant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.6
The Board will remand the case to the Office for referral to an appropriate medical
specialist to determine the extent of any injury or aggravation of any preexisting conditions as a
result of his employment-related activities. Following this and any other further development as
deemed necessary, the Office shall issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

John W. Butler, 39 ECAB 852 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 25, 2009 and September 15, 2008 are set aside and the
case is remanded for further development in accordance with this decision of the Board.
Issued: January 28, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
PANAMA CANAL COMMISSION, PEDRO
MIGUEL LOCKS, Panama City, Panama,
Employer
__________________________________________

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

Docket No. 07-512
Issued: August 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2006 appellant filed a timely appeal from a July 7, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs, denying his request for
reconsideration and finding that it failed to establish clear evidence of error. Because more than
one year has elapsed between the most recent merit decision dated November 15, 2002 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On January 4, 2000 appellant, then a 57-year-old retired cement worker, filed an
occupational disease claim. He first became aware of his depression and realized that it was

caused by factors of his federal employment on July 10, 1982. Appellant stated that his
depression was caused by head trauma which resulted from being hit on the head by a hose that
was connected to a jack hammer. He retired on disability effective September 2, 1987.
By letter dated October 8, 2002, the Office advised appellant that it did not appear that
his claim was timely filed. It addressed the factual and medical evidence that he needed to
submit to establish his claim within 30 days. Appellant did not respond within the allotted time
period.
In a decision dated November 15, 2002, the Office denied appellant’s claim on the
grounds that it was not timely filed within the applicable time limitation provisions of the
Federal Employees’ Compensation Act. The record did not establish that the claim was filed
within the three-year time limitation period which began to run on July 10, 1982, the date of
injury and the date appellant became aware of the causal relationship between the claimed injury
and his employment. Further, the record did not establish that appellant’s supervisor had actual
knowledge of the claimed 1982 injury within 30 days. By letter dated December 13, 2002 and
postmarked December 18, 2002, appellant requested an oral hearing before an Office hearing
representative.
In a decision issued on February 24, 2003, the Branch of Hearings and Review found that
appellant’s request for a hearing was not timely filed pursuant to 5 U.S.C. § 8124(b)(1). It found
that appellant’s request was dated December 13, 2002 and postmarked December 18, 2002, more
than 30 days after the Office’s November 15, 2002 decision and was untimely. The Office
further denied his request because the issue of whether he filed a timely occupational disease
claim could equally well be addressed by requesting reconsideration and submitting relevant
evidence.
On March 13, 2006 appellant submitted an August 1, 2005 medical report of
Dr. Guiilermo Garcia Ruiz, a licensed psychiatrist in Panama.1 Dr. Garcia Ruiz stated that he
had been treating appellant since he sustained head trauma and depression in 1982.2
In an undated letter received by the Office on May 12, 2006, appellant requested
reconsideration of the Office’s November 15, 2002 decision.
By decision dated July 7, 2006, the Office found that appellant’s letter requesting
reconsideration was undated and received on May 12, 2006, more than one year after the
Office’s November 15, 2002 decision and was untimely. It found that appellant did not submit
evidence to establish clear evidence of error in the prior decision finding that his occupational
disease claim was not timely filed.

1

The Board notes that Dr. Garcia Ruiz is not Board-certified in the United States.

2

Dr. Garcia Ruiz’s August 1, 2005 medical report was initially submitted to the Office in Spanish and
subsequently translated into English.

2

LEGAL PRECEDENT
Section 8128(a) of the Act3 does not entitle a claimant to a review of an Office decision
as a matter of right.4 The Office, through its regulations, has imposed limitations on the exercise
of its discretionary authority under section 8128(a). Section 10.607(a) of the Office’s
implementing regulation provides that an application for reconsideration must be sent within one
year of the date of the Office decision for which review is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.7 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.13
3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

Leona N. Travis, 43 ECAB 227, 241 (1991).

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919 (1992).

12

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

3

ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. In implementing the one-year time limitation, the Office’s procedures
provide that the one-year time limitation period for requesting reconsideration begins on the date
of the original Office decision. However, a right to reconsideration within one year accompanies
any subsequent merit decision on the issues.14
The last merit decision in this case was issued by the Office on November 15, 2002. It
found that appellant’s occupational disease claim was not timely filed. As his undated letter
requesting reconsideration, which was received on May 12, 2006, was made more than one year
after the Office’s November 15, 2002 merit decision, the Board finds that it was not timely filed.
The issue for purposes of establishing clear evidence of error in this case, is whether
appellant established that his occupational disease claim was timely filed. Appellant submitted
Dr. Garcia Ruiz’s August 1, 2005 report which found that he sustained head trauma and
depression in 1982. Dr. Garcia Ruiz’s report is insufficient to prima facie shift the weight of the
evidence in favor of appellant’s claim. This evidence does not address or contain any relevant
information pertinent to the issue of whether appellant timely filed a claim for an emotional
condition. For this reason, the Board finds that appellant has not established clear evidence of
error on the part of the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

14

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2006 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Richmond, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Sylvia R. Johnson, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0152
Issued: February 16, 2022

Case Submitted on the Record

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

JURISDICTION
On November 12, 2020 appellant, through his representative, filed a timely appeal from an
August 13, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case. 3

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 13, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective April 16, 2020; (2) whether appellant has
met his burden of proof to establish continuing disability or residuals on or after April 16, 2020,
causally related to the accepted June 3, 1994 employment injury.
FACTUAL HISTORY
This case has previously been before the Board on different issues. 4 The facts and
circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The
relevant facts are as follows.
On June 14, 1994 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on June 3, 1994 he injured his right shoulder while in the performance
of duty. OWCP accepted the claim for rotator cuff syndrome, allied disorders, and rotator cuff
tears of the right shoulder. It assigned that claim OWCP File No. xxxxxx077. On September 14,
1995 appellant underwent authorized repair of a torn right rotator cuff tear. He returned to
modified-duty work on October 27, 1995 and was injured at work the next day, October 28, 1995.5
On November 21, 1999 appellant returned to modified-duty work with permanent restrictions. He
stopped work on August 13, 2007 and underwent an OWCP-authorized repair of a torn right
rotator cuff tear on January 18, 2008. Appellant did not return to work. OWCP paid him wageloss compensation on the periodic rolls as of March 16, 2008.
On September 18, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. John H. Welborn, Jr., a Board-certified orthopedic surgeon,
for a second opinion examination to determine the status of appellant’s residuals and disability due
to his accepted June 3, 1994 employment injury.
OWCP received an October 1, 2019 visit note from Dr. Maria V. Bulatov, a Boardcertified physiatrist. Dr. Bulatov noted that appellant sustained a work-related right shoulder
injury on June 3, 1994. She performed a physical examination of the right and left shoulders,
reviewed the magnetic resonance imaging (MRI) scan results, and provided impression s of right
rotator cuff arthropathy and right biceps tendinitis. Dr. Bulatov advised that appellant was unable
to return to his regular work duties due to his persistent right shoulder pain. She addressed her
treatment plan.
In an October 21, 2019 medical report, Dr. Welborn noted appellant’s history of injury in
1994 and 1995 and his review of the SOAF and medical evidence of record. He also noted that
appellant had complaints of right shoulder pain and physical limitations. On physical examination
of the right shoulder, Dr. Welborn found tenderness to touch. He reported no swelling or erythema,
4

Docket No. 09-28 (issued September 16, 2009), petition for recon. denied, Docket No. 09-28 (issued June 10,
2010); Docket No. 11-1746 (issued August 16, 2012).
5

Appellant subsequently filed a Form CA-1 for a right shoulder injury, which OWCP accepted for right shoulder
strain. OWCP assigned that claim OWCP File No. xxxxxx102. OWCP administratively combined OWCP File Nos.
xxxxxx077 and xxxxxx102, with the latter serving as the master file.

2

a negative impingement test, two scars in the anterior lateral shoulder, and very large muscles in
the shoulder and arm with no atrophy. Dr. Welborn recorded range of motion measurements of
170 degrees each of flexion and abduction, 80 degrees of external rotation, and 70 degrees of
internal rotation. He noted as part of his assessment that rotator cuff tear had been added as an
update to the problem list for the current evaluation. Dr. Welborn advised that appellant no longer
continued to suffer from objective residuals of his accepted right cuff syndrome, but he had
subjective pain that did not correlate with his objective ﬁndings. He further advised that appellant
could return to full-duty work with no right shoulder restrictions. Dr. Welborn noted that appellant
claimed that he was unable to perform full-duty work due to back, hip, neck, and knee pain and
that he was restricted due to his pain. He determined that appellant could lift up to 20 pounds, and
sit at a desk and lift up to 10 pounds and answer telephones without taking breaks. Dr. Welborn
concluded that appellant did not require any further right shoulder medical treatment. In an
accompanying work capacity evaluation (Form OWCP-5c) of even date, he indicated that
appellant was unable to perform his usual work due to non -industrial back and neck pain, but he
could work eight hours per day with restrictions in a sedentary light position.
By notice dated November 19, 2019, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits based on Dr. Welborn’s opinion that the June 3,
1994 accepted conditions had ceased without residuals or disability. It afforded him 30 days to
submit additional evidence or argument challenging the proposed termination.
OWCP subsequently received an additional visit note dated December 4, 2019, wherein
Dr. Bulatov reiterated her prior impressions of right rotator cuff arthropathy and right biceps
tendinitis. Additionally, she assessed depression, not otherwise specified. Dr. Bulatov noted that
appellant continued to experience chronic right shoulder pain that was aggravated by cold weather
and by simple activities of daily living (ADLs) that required reaching up, reaching back, and
lifting. She also showed evidence of depression with decreased mood, social withdrawal, and a
low energy level. Appellant denied having any specific suicidal plans. Dr. Bulatov indicated that
he was previously evaluated by a psychologist/psychiatrist at a Department of Veterans Affairs
(VA) hospital, but was no longer receiving treatment. She addressed her treatment plan for
appellant’s right and left shoulder conditions. Dr. Bulatov also recommended a psychiatric
evaluation of his depression, which she advised was related to his chronic pain and limited
functional status.
In a January 28, 2020 visit note, Dr. Richard A. Nolan, a Board-certified orthopedic
surgeon, performed an examination and provided impressions of right rotator cuff arthropathy,
right biceps tendinitis, and depression. He provided restrictions related to appellant’s right
shoulder. Dr. Noland advised that his chronic pain and loss of function resulted in anxiety and
depression secondary to his inability to maintain an adequate level of activity that would allow
him to return to his work activities. He provided his treatment plan for appellant’s right and left
shoulder and emotional conditions.
OWCP, by decision dated April 16, 2020, terminated appellant’s wage-loss compensation
and medical benefits, effective that date. It found that the weight of the medical evidence was
represented by the report of Dr. Welborn.
On April 21, 2020 appellant, through his representative, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
3

OWCP subsequently received additional reports by Dr. Nolan. In a May 13, 2020 visit
note, Dr. Nolan reiterated his prior assessments of right rotator cuff arthropathy, right biceps
tendinitis, and depression, and appellant’s work restrictions.
In a June 9, 2020 Form OWCP-5c, Dr. Nolan indicated that appellant was totally disabled
from work and listed his permanent restrictions. He advised that his chronic pain syndrome,
anxiety, and depression should be considered in identifying a position for him.
In a June 2, 2020 letter, Dr. Richard Karp, an infectious disease specialist, noted that
appellant was being treated at the Oakland VA medical clinic for multiple medical problems
including, a right rotator cuff tear status post repair. He also noted that his ADLs were significantly
impaired by his ongoing pain, impaired right shoulder function, and stress from his chronic pain
and inability to perform normal activities such as, household maintenance, complicated by the
COVID-19 pandemic. Dr. Karp opined that the termination of appellant’s benefits may have been
premature.
In visit notes dated May 28 and July 24, 2019, Dr. Bulatov reiterated her prior right
shoulder and right biceps diagnoses, and opinion that appellant had right shoulder pain and was
totally disabled from work.
In a July 8 and 11, 2020 letters, appellant’s representative contended that reports from
Dr. Bulatov were not considered by OWCP or Dr. Welborn. She also contended appellant’s prior
conditions and resulting restrictions addressed in Dr. Karp’s reports should be considered by
OWCP.
Appellant’s representative submitted a January 23, 2019 visit note from Dr. Nolan who
advised that appellant remained temporarily totally disabled from work through March 15, 2019.
By decision dated August 13, 2020, an OWCP hearing representative affirmed the
April 16, 2020 decision.
LEGAL PRECEDENT - ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.6 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
6

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020);
R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
7

See D.G., id.; R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989);
Vivien L. Minor, 37 ECAB 541 (1986).
8

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.9 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment. 10
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 16, 2020, as he no longer had disability or
residuals causally related to the accepted June 3, 1994 employment injury.
OWCP referred appellant to Dr. Welborn for a second opinion evaluation to determine the
status of appellant’s accepted right shoulder conditions and his work capacity.
In an October 21, 2019 report, Dr. Welborn opined that appellant had no residuals or
disability related to his accepted right shoulder conditions, and no further medical treatment was
needed. He noted his review of the SOAF and medical records, and examined appellant. On
physical examination, Dr. Welborn reported essentially normal findings with the exception of
tenderness to touch of the right shoulder. He opined that appellant had no objective residuals of
the accepted conditions and that appellant’s subjective pain did not correlate with objective
ﬁndings. Dr. Welborn further opined that appellant could return to full-duty work with no right
shoulder restrictions and no further medical treatment was necessary. In a Form OWCP-5c, he
indicated that appellant’s disability from his usual job and his work restrictions were not related to
the June 3, 1994 employment injury, but related to his nonindustrial back and neck pain.
Dr. Welborn based his opinion on a proper factual and medical history. He provided
physical examination findings and a well-rationalized opinion based on the medical evidence
regarding the accepted conditions causally related to appellant’s June 3, 1994 employment injury.
Accordingly, the Board finds that OWCP properly relied on Dr. Welborn’s second opinion report
in terminating appellant’s wage-loss compensation and medical benefits. 11
Appellant submitted a series of reports from Dr. Bulatov and Dr. Nolan which provided
findings regarding appellant’s right shoulder, diagnosed right rotator cuff arthropathy, right biceps
tendinitis, and depression, and opined that appellant was totally disabled from work, he had work
restrictions, and continued medical treatment was needed. The Board notes that OWCP did not
accept diagnoses of right rotator cuff arthropathy, right biceps tendinitis, and depression. Neither
Dr. Bulatov nor Dr. Nolan explained how these conditions were disabling and causally related to
the accepted employment injury. 12 Accordingly, these reports are insufficient to overcome the
9

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
10

K.W., supra note 8; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727
(2002); Furman G. Peake, id.
11

R.P., Docket No. 20-0891 (issued September 20, 2021); K.W., Docket No. 19-1224 (issued November 15, 2019);
N.G., Docket No. 18-1340 (issued March 6, 2019); A.F., Docket No. 16-0393 (issued June 24, 2016).
12

R.P., id.

5

weight of the medical evidence accorded to Dr. Welborn, or to create a conflict in medical opinion
as to whether appellant’s accepted conditions had resolved. 13
As the weight of the medical evidence establishes that appellant had no further
employment-related residuals or disability due to the accepted medical conditions, the Board finds
that OWCP properly terminated his wage-loss compensation and medical benefits, effective
April 16, 2020.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability on or after that date causally related to the accepted injury. 14 To
establish causal relationship between the accepted conditions as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence based
on a complete medical and factual background supporting such causal relationship. 15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
disability or residuals on or after April 16, 2020 causally related to the accepted June 3, 1994
employment injury.
Following the termination of appellant’s compensation benefits, on April 16, 2020, OWCP
received additional reports from Drs. Nolan and Bulatov related to appellant’s medical treatment
following April 16, 2020. In a May 13, 2020 note, Dr. Nolan reiterated his prior assessments of
right rotator cuff arthropathy, right biceps tendinitis, and depression. In a June 9, 2020 Form
OWCP-5c, he indicated that appellant was totally disabled from work and listed his permanent
restrictions. Dr. Nolan advised that appellant’s chronic pain syndrome, anxiety, and depression
should be considered in evaluating appellant’s ability to return to work. In notes dated May 28
and July 24, 2019, Dr. Bulatov noted appellant’s complaints of right shoulder pain, reiterated her
prior right shoulder and right biceps diagnoses, and opinion that appellant was totally disabled
from work. These reports reiterated the physicians’ prior conclusions regarding appellant’s right
shoulder condition, without further medical rationale. The Board has held that a mere conclusion
without the necessary rationale as to whether a medical condition or disability is due to an accepted
employment condition is insufficient to meet a claimant’s burden of proof. 16 Dr. Nolan’s and
Dr. Bulatov’s reports submitted following the termination of appellant’s compensation benefits,
regarding appellant’s right shoulder conditions after April 16, 2020, are therefore of diminished

13

Id.

14

See J.N., Docket No. 20-1030 (issued November 20, 2020); L.C., Docket No. 18-1759 (issued June 26, 2019).

15

Id.

16

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

6

probative value and insufficient to meet appellant’s burden of proof to establish continuing
residuals or disability. 17
OWCP also received a June 2, 2020 letter from Dr. Karp. In this letter, Dr. Karp
maintained that the termination of appellant’s wage-loss compensation and medical benefits may
have been premature as he had impaired right shoulder function, stress due to his chronic pain , and
physical limitations following his authorized right rotator cuff tear status post repair and
complicated by the COVID-19 pandemic. However, he did not provide medical rationale, based
upon objective medical findings, sufficient to explain why appellant had any continuing residuals
or disability causally related to the June 3, 1994 employment injury. 18 The Board has held that a
medical report is of limited probative value regarding disability if it does not contain medical
rationale explaining how such disability was related to an accepted employment injury. 19 This
letter is, therefore, of limited probative value and is insufficient to meet appellant’s burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 16, 2020. The Board also finds that appellant
has not met his burden of proof to establish continuing disability or residuals on or after April 16,
2020 causally related to the accepted June 3, 1994 employment injury.

17

Y.J., Docket No. 20-1123 (issued September 27, 2021); E.J., Docket No. 20-0013 (issued November 19, 2020).

18

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

19

V.D., Docket No. 19-0979 (issued February 5, 2020); D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D.,
Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).

7

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8