United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, SNAPPER CREEK
POST OFFICE, Miami, FL, Employer
__________________________________________

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

Docket No. 08-389
Issued: June 12, 2008

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 November 20, 2007 appellant filed a timely appeal from the September 19, 2007
merit decision of the Office of Workers’ Compensation Programs, which denied her recurrence
of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on October 31, 2006.
FACTUAL HISTORY
On January 7, 2001 appellant, then a 50-year-old mail processing clerk, sustained an
injury in the performance of duty when she struck her left ankle on a gurney. On February 6,
2004 the Office accepted her claim for left ankle sprain.1 On June 30, 2004 appellant accepted a
limited-duty assignment at no wage loss.
1

OWCP No. 062046824.

Also on June 30, 2004 appellant filed a claim alleging that her left ankle tendinitis was a
result of her federal employment. The Office accepted her claim for left ankle tendinitis and left
ankle degenerative arthritis.2
Appellant underwent an arthroscopic synovectomy on
January 19, 2006. She returned to limited duty on March 20, 2006. Appellant’s podiatrist,
Dr. Mark A. Maederer, Jr., excused her from work from July 24 through August 8, 2006
following an aspiration of her left ankle. Dr. Maederer continued appellant’s previous
restrictions but limited her lifting to 20 pounds.
On September 25, 2006 appellant asked Dr. Maederer for time off to file for disability
retirement and consider her options. She was concerned because her employer was planning to
switch her to the third shift. Dr. Maederer stated that appellant was unable to work the third shift
because she took medication in the evening that caused drowsiness. He noted soreness and
diffuse swelling around the left ankle “which is worsened with increased ambulation.”
Dr. Maederer diagnosed chronic degenerative arthritis, left ankle.
On October 19, 2006 Dr. Maederer reported that appellant was doing much better after
her period of rest and was ready to go back to work the next day. He reported minimal
inflammation, minimal soreness “and everything is being well controlled with the Richie brace.”
Dr. Maederer released appellant with the following restrictions: “She is to continuing (sic) with
restricted duty, consisting of eight-hour shift. [Appellant] may sit as much as desired, but should
walk and stand only 15 minutes each intermittently during the entire shift. Maximum carrying
and lifting is 20 pounds intermittently. [Appellant] will return to the office for follow up in [six]
weeks for recheck or sooner if necessary.”
Appellant’s application for disability retirement was approved with a finding that she was
totally disabled for her position as a mail processing clerk due to degenerative arthritis of the left
ankle. Her last day in a pay status was October 31, 2006.
Appellant filed a claim for wage loss beginning October 31, 2006.
supported appellant’s claim in a January 28, 2007 report:

Dr. Maederer

“This is a letter of clarification regarding the disability status of the patient listed
above. This patient has been diagnosed with a permanent disability of her left
ankle due to severe degenerative changes as a result of her previous work injury
on October 3, 2003. I have set the date of her permanent disability as of
October 31, 2006 since that is when it became apparent to me that she will NOT
improve beyond her current condition and that she will require permanent work
restrictions of 8 hours of seated duty with 15 minutes of walking and standing per
shift and a maximum of 20 [pounds] of lifting.
“The patient initially filed for a formal disability claim since she was having a
great deal of difficulty getting her employer to cooperate with her work
restrictions. This has caused numerous flare-ups of her condition, requiring
injection of her ankle and release from work. When [appellant’s] employer
finally agreed to comply with the conditions, they decided to transfer her to a
2

OWCP No. 062121112 (master).

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facility requiring her to work [third] shift, overnight. This patient takes Darvocet
(a synthetic narcotic) periodically for pain to her left ankle, in addition to
Celebrex. When [appellant] takes Darvocet during the day, she is able to
function, but if she takes it in the evening, it causes a debilitating degree of
drowsiness. This is due to the body’s natural diurnal sleep cycle and its response
to darkness. This is the reason for her disability application, since once again, her
employer failed to meet her required work restrictions in a reasonable manner.
[Appellant] is medically unable to work an overnight shift safely due to the facts I
have just described.
“If [appellant’s] employer can meet her required restrictions, as described above,
in a reasonable fashion, [she] will happily continue working. Indeed, she prefers
to work rather than taking disability. It seems to me that her employer has been
intentionally making this more difficult than necessary for [appellant] due to some
sort of personal spite regarding her condition. Please help us to resolve this
matter in a timely and appropriate fashion.” (Emphasis in the original.)
In a decision dated March 14, 2007, the Office denied appellant’s claim of recurrence.
An Office hearing representative vacated this decision and remanded the case for further
development, including a statement from the employer on appellant’s allegation that she had to
retire because she was forced to walk and stand in excess of her doctor’s restrictions.3 On
August 30, 2007 the employer responded that at no time from March 20 to October 31, 2006 did
appellant perform duties that were not in accordance with the restrictions provided by her
treating physician and at no time during that period did she advise that she was unable to perform
her assigned duties. The employer added that appellant’s duties were not changed and that at no
time was the employer unable to accommodate her restrictions. The employer stated that
appellant’s allegations were unfounded.
In a decision dated September 19, 2007, the Office denied appellant’s claim of
recurrence.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act pays compensation for the disability of an
employee resulting from personal injury sustained while in the performance of duty.4
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.5

3

The hearing representative also found a conflict in medical opinion on whether appellant recovered from her left
ankle conditions, as a second-opinion physician reported. On remand, however, the Office noted that appellant’s
claim was subsequently expanded to include other conditions, that she underwent surgery for the accepted
conditions and that she was returned to work with restrictions. So the Office determined that the opinion of the
second-opinion physician was no longer valid.
4

5 U.S.C. § 8102(a).

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20 C.F.R. § 10.5(f) (1999).

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When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-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 to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.6
ANALYSIS
Appellant stopped work on October 31, 2006, but she has not shown that she stopped
because of a change in the nature and extent of her injury-related condition. The medical
evidence shows that she was able to work within the restrictions set by her podiatrist,
Dr. Maederer, who reported on October 19, 2006 that appellant was rested and ready to go back
to work. Appellant’s inflammation and soreness was “minimal” and “everything was being well
controlled with the Richie brace.” Dr. Maederer released appellant to return to work within her
previous restrictions and noted that she would return to the office for follow-up in six weeks or
sooner if necessary. So 12 days before appellant stopped work, her podiatrist cleared her to
continue working.
After appellant stopped work, Dr. Maederer reported that she was still physically capable
of working within her restrictions. On January 28, 2007 he clarified that appellant would happily
continue working “if her employer can meet her required restrictions, as described above, in a
reasonable fashion.” So the issue is not whether appellant stopped work because of a change in
the nature and extent of her injury-related condition. The issue is whether she stopped work
because of a change in the nature and extent of her limited-duty job requirements.
About a month before she stopped work, appellant told Dr. Maederer that her employer
was planning to switch her to the third shift. But her employer did not take that action.
Appellant continued in the same position until the day her retirement became effective. Her
concern over the possibility, at some point in the future, of having to work such a shift is no basis
for the payment of compensation. The Board has held that a fear of future injury is not a
compensable factor of employment.7
Appellant also told Dr. Maederer that she was having a great deal of difficulty getting her
employer to cooperate with her work restrictions. The Office further developed the factual
evidence and received a statement from the employer that appellant’s allegation was unfounded.
The employer stated that from the time appellant began her limited duty on March 20, 2006 to
the date of her retirement on October 31, 2006, she never performed duties that were not in
accordance with her restrictions. Further, appellant never complained that she was unable to
perform her assigned duties. Her duties did not change and the employer was always able to
accommodate her. Given this evidence, it is not established as factual that the employer did not
cooperate with appellant’s restrictions.
6

Terry R. Hedman, 38 ECAB 222, 227 (1986).

7

Mary A. Geary, 43 ECAB 300, 309 (1991).

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If appellant was having difficulty with employer cooperation, she did not mention this to
Dr. Maederer when she saw him on September 25, 2006. Dr. Maederer stated that appellant was
asking for time off to file for disability retirement and consider her options because she was
concerned that her employer was planning to switch her to the third shift, not because the
employer was currently failing to cooperate with restrictions. When Dr. Maederer released
appellant to return to work on October 19, 2006, he again mentioned nothing about a cooperation
or compliance issue.8 The Board finds that the evidence does not establish a change in the nature
and extent of appellant’s limited-duty job requirements.
As noted, “disability” under the Act means the incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury. This is different from
the standard used to approve appellant’s application for retirement. The employer approved her
application because she was totally disabled for useful and efficient service in her position as a
mail processing clerk. Appellant was nonetheless capable of performing limited duty at no wage
loss, as she demonstrated from March 20 to October 31, 2006, not counting a couple of weeks to
recover from an aspiration. So in the absence of evidence establishing a change in the nature and
extent of her injury-related condition or a change in the nature and extent of her limited-duty job
requirements, appellant has not met her burden to establish a recurrence of disability beginning
October 31, 2006. The Board will affirm the Office’s September 19, 2007 decision denying
compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability on October 31, 2006.

8

In his January 28, 2007 report, Dr. Maederer stated that appellant’s employer “finally agreed” to comply with
the restrictions but decided to transfer her to a facility requiring her to work the third shift. If compliance was at one
time an issue, this statement indicates that it was an issue no longer and that appellant’s motivation for seeking
retirement was simply her fear of future injury, which is not compensable.

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ORDER
IT IS HEREBY ORDERED THAT the September 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, SAUDIA
ARABIAN NATIONAL GUARD,
Riyadh, Saudia Arabia, Employer
__________________________________________

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Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1455
Issued: March 11, 2019

Case Submitted on the Record

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

JURISDICTION
On July 27, 2018 appellant, through counsel, filed a timely appeal from an April 26, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period commencing February 9, 2013, causally related to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 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 12, 2012 appellant, then a 62-year-old information technology (IT) specialist, filed
an occupational disease claim (Form CA-2) alleging that she developed clinical depression and
anxiety as a result of a greatly increased workload and excessive expectations by senior leaders
beginning in 2009. She indicated that the working conditions exacerbated her preexisting clinical
depression and anxiety and precipitated its worsening. Appellant stopped work on August 21,
2011 due to a nonwork-related condition and returned to full-time modified duties in January 2012.
She worked from January 2012 to April 22, 2012 when she stopped completely and remained on
sick leave until her retirement on January 12, 2013.
On January 11, 2013 OWCP accepted appellant’s claim for exacerbation of major
depression, recurrent episode, moderate, and exacerbation of anxiety state, unspecified.
In a report dated May 15, 2013, Dr. Melanie Tew, a Board-certified psychiatrist, noted that
appellant’s symptoms began in 2009 and that she had attempted to return to work in 2012, but was
unsuccessful. She diagnosed major depression and panic disorder. Dr. Tew noted that appellant
continually reported symptoms despite aggressive medication management and that appellant was
not recovering as she would expect. She questioned whether this was related to a stroke4 and
opined that appellant’s current level of functioning would persist for at least another year such that
appellant could not perform any regular work duties. Dr. Tew indicated that appellant’s stroke
occurred when she had been stressed in a work environment and her anxiety and depression were
exacerbated by work stress. She opined that appellant was unable to perform any and all types of
work-related daily activities.
On August 1, 2013 OWCP received a claim for compensation (Form CA-7) for total
disability for the period February 9 to July 27, 2013.
In a March 10, 2014 report, Dr. Tew treated appellant for anxiety, depression, and panic
attacks. She diagnosed major depressive affective disorder recurrent episode, moderate, and
anxiety state. Appellant reported that her onset of anxiety had occurred on August 30, 2012. On
April 21, 2014 Dr. Tew reported that appellant continued to struggle with anxiety and depression.
Appellant reported that she was worried about her disability claim that had been rejected. Dr. Tew
3

Docket No. 15-1638 (issued May 5, 2016); Docket No. 14-1032 (issued November 12, 2014).

4
The record indicates that appellant had a subarachnoid hemorrhage in 2011. This has not been accepted as
employment related.

2

noted that appellant was on a leave of absence from working as an IT specialist. She noted an
essentially normal psychiatric examination and diagnosed major depressive affective disorder,
recurrent episode moderate, and anxiety state unspecified. Dr. Tew opined that appellant
continued to be very sensitive to stress and a return to work of any kind would lead to further
exacerbation of her depression and anxiety. She opined that appellant’s sensitivity to stress,
depressive and anxious symptoms were disabling, and appellant should not return to work.
In a separate April 21, 2014 disability statement, Dr. Tew noted treating appellant since
August 2012. Appellant reported that her symptoms began in 2009 and she had been unable to
work consistently since 2009. In 2012, she unsuccessfully attempted to return to work. Dr. Tew
diagnosed major depression and panic disorder. She noted that these conditions were relapsing
and remitting. Dr. Tew reiterated that appellant was very sensitive to stress and had mild panic
symptoms in minimally stressful situations. She advised that appellant was not recovering as she
would expect and wondered if her condition was related to the stroke that she had during the onset
of this illness. Dr. Tew noted that appellant was unable to perform all types of work-related
activities. She opined that appellant’s depression and anxiety caused appellant’s disability, that
they were most likely triggered by a stressful work environment in 2009, and that her depression
and anxiety continue to be disabling. On June 19, 2014 Dr. Tew noted that appellant felt more
motivated, and appellant’s mood had improved, but she was still very sensitive to stress. She noted
appellant’s 2011 subarachnoid hemorrhage and her narcolepsy diagnosis 17 years earlier. Dr. Tew
diagnosed major depressive affective disorder recurrent episode moderate.
In reports dated January 15 and 21, 2015, Dr. Tew noted treating appellant since
August 2012. Appellant reported that her symptoms began in 2009 and she had been unable to
work consistently since 2009. Dr. Tew diagnosed major depression and panic disorder relapsing
and remitting. She noted that appellant was very sensitive to stress and was not currently able to
perform regular work activities. Dr. Tew indicated that appellant’s stroke occurred when she was
stressed in a work environment and her anxiety and depression were exacerbated by stress at work.
She opined that appellant’s panic disorder with agoraphobia was the main cause of her disability.
Dr. Tew opined that the cerebral vascular accident experienced in 2011 was not the primary cause
of appellant’s disability and she believed that returning to work would most likely be detrimental
to appellant’s overall health.
Appellant submitted a transcript of a deposition of Dr. Tew taken on March 19, 2015 in
which Dr. Tew noted a history of appellant’s treatment since 2012. Dr. Tew opined that
commencing in August 2012 appellant had been unable to perform “a real job” in the marketplace.
She advised that both appellant’s depression and panic disorder contributed to her disability.
Dr. Tew opined that appellant’s illness was related to extremely stressful work conditions. She
opined that the stroke appellant experienced in 2011 was not the cause of her disability from work,
rather, she indicated that the stroke resolved. Dr. Tew indicated that the stress of appellant’s work
was related to her depression and likely caused her depression to become so severe that she could
not work. She noted that appellant had a difficult supervisor who was unrealistic in her demands
and did not communicate in a manner that was respectful.
By decision dated April 14, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period beginning February 9, 2013.

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On March 30, 2016 Dr. Tew diagnosed major depression and anxiety. She opined that
appellant’s conditions were work related and caused significant disability commencing
January 2013. Dr. Tew indicated that her illnesses were triggered and exacerbated by stressful
experiences at work including excessive criticism, heavy workload, and expectations above her
grade level. She advised that appellant continued to experience disabling residual symptoms
related to these experiences including fearfulness, excessive worry, depressed mood, panic attacks,
poor sleep, fatigue, difficulty concentrating, and poor memory.
On April 18, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative regarding the decision dated April 14, 2016. The hearing was held
on December 14, 2016. Dr. Tew testified that appellant was totally disabled due to work-related
depression and anxiety. She noted that appellant continue to experience symptoms of the
conditions including fearfulness, excessive worry, depressed mood, panic attacks, poor sleep,
fatigue, difficulty concentrating, and poor memory. Dr. Tew advised that the 2011 stroke had
resolved and had not disabled appellant from work at any time. She indicated that work factors
contributed to depression and disabled appellant from work. Dr. Tew noted that appellant was
compliant with medical treatment, but the treatment did not yield the hoped for results. She opined
that in some patients depression worsens over time and becomes resistant to treatment.
Appellant submitted copies of leave records showing that she used sick leave from
August 12 to September 14, 2011, annual leave from October 10 to November 26, 2011,
bereavement leave from February 19 to March 30, 2012.
By decision dated January 30, 2017, an OWCP hearing representative affirmed OWCP’s
April 14, 2016 decision.
On January 26, 2018 appellant, through counsel, requested reconsideration of the
January 30, 2017 decision.
In support of the reconsideration request appellant submitted a report from Dr. James
Bellard, a Board-certified psychiatrist, dated January 15, 2018. In his report, Dr. Bellard noted
that she had anxiety and depression much of her adult life. He noted that appellant’s stressors at
work caused her depression to significantly worsen in 2009 well prior to the stroke. Dr. Bellard
advised that she responded to unreasonable demands by working overtime, which led to severe
psychiatric problems well prior to the hemorrhage. He opined that the relationship between
subarachnoid hemorrhage and depression remained unclear. Dr. Bellard advised that “one would
reasonably expect that an unresolved subarachnoid hemorrhage would cause severe ongoing
psychiatric syndromes, including depression, anxiety, and cognitive problems.” However, he
indicated that radiological documentation revealed that appellant had full resolution of her
hemorrhage and the neuropsychological evaluation showed no signs that the hemorrhage had any
cognitive effects. However, psychological testing continued to show depression. Dr. Bellard
opined that “it is unlikely that [appellant’s] subarachnoid hemorrhage contributed to [her]
continuing depressive problems, given that it completely resolved.” He advised that it was more
likely that appellant’s lack of response to antidepressant medications lied in the complexity of her
situation and how she continued to reexperience the time in Saudi Arabia. Dr. Bellard opined that
her stroke had little, if any, effect on her already severely compromised ability to work after
April 2012. He noted that appellant’s condition worsened overtime leading to total disability by

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April 22, 2012. Dr. Bellard provided work restrictions and noted that her prognosis remained poor
and she would likely need psychiatric treatment for the rest of her life. He opined that appellant’s
inability to return to work after April 2012 was not due to her stroke, but depression.
By decision dated April 26, 2018, OWCP denied modification of the January 30, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.6 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.7 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.8
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.9 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative, and substantial medical
evidence.10
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.11 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is
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

5

Supra note 2.

6

See D.W., Docket No. 18-0644 (issued November 15, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).

7

Id.

8

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

9

Id.

10

T.O., Docket No. 17-1177 (issued November 2, 2018); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

R.H., Docket No. 18-1382 (issued February 14, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.12
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
commencing February 9, 2013 causally related to her accepted employment injury.
In support of her claim for total disability appellant submitted a series of treatment reports
and obtained testimony from her attending physician, Dr. Tew. In reports dated May 15, 2013,
March 10 and April 21, 2014, January 15 and 21 and March 19, 2015, and March 30, 2016
Dr. Tew noted appellant’s employment history, her history of injury, and examination findings
and provided diagnoses. She noted that appellant was sensitive to stress, depression, and
symptoms of anxiety and that she had reported symptoms and had intermittent periods of disability
which began in 2009. Dr. Tew provided diagnoses including major depressive affective disorder,
recurrent episode moderate; panic disorder; and anxiety state unspecified. She noted that appellant
continually reported symptoms despite aggressive medication management and that she was not
recovering as would be expected. Dr. Tew questioned whether her total disability and later her
difficulty in recovery from her mental conditions was related to her prior stroke. In May 2013,
she noted that appellant could not perform her regular work duties and thereafter consistently
opined that she was unable to return to work.
In deposition testimony Dr. Tew opined that appellant had been unable to perform “a real
job” in the marketplace from August 2012. She stated that her diagnosed conditions were related
to extremely stressful work conditions. In her hearing testimony from December 14, 2016,
Dr. Tew stated that appellant had been totally disabled due to work-related depression and anxiety.
She stated that appellant’s total disability due to depression and anxiety was related to work factors.
The Board finds that the medical reports and testimony from Dr. Tew are insufficient to
meet appellant’s burden of proof to establish total disability for the period commencing
February 9, 2013 and continuing. The issue of disability from work can only be resolved by
competent medical evidence.14 Dr. Tew failed to provide a rationalized medical opinion that
appellant’s inability to work commencing February 9, 2013 resulted from the accepted conditions
in the claim. Rather, she merely provided generalized statements about “stress” in appellant’s
workplace. While Dr. Tew indicated that appellant was totally disabled from work, she did not
specifically explain how the accepted conditions caused or contributed to the claimed period of
12

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
13

See B.K., Docket No. 18-0386 (issued September 14, 2018).

14

R.C., 59 ECAB 546 (2008).

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disability. The Board has held that a report is of limited probative value if it does not contain
medical rationale explaining how a given period of disability was related to employment factors.15
Without a specific opinion as to how work factors had caused the claimed period of disability, the
opinions expressed by Dr. Tew are insufficient to establish the claim for total disability.
Appellant also submitted a report from Dr. Bellard dated January 15, 2018, in which he
noted that her stressors at work caused her depression to significantly worsen in 2009. Dr. Bellard
indicated that her anxiety and depression were significantly worsened by “the workplace situation”
well prior to her suffering a stroke. He opined that the relationship between appellant’s
subarachnoid hemorrhage and depression remains unclear. Dr. Bellard advised that “one would
reasonably expect that an unresolved subarachnoid hemorrhage would cause severe ongoing
psychiatric syndromes, including depression, anxiety, and cognitive problems.” However, he
indicated that radiological documentation revealed that appellant had full resolution of her
hemorrhage, but continued to have depression. Dr. Bellard opined that “it is unlikely that
[appellant’s] subarachnoid hemorrhage contributed to [her] continuing depressive problems, given
that it completely resolved.” He opined that appellant’s stroke had little, if any, effect on her
ability to work after April 2012. Dr. Bellard noted that her condition had worsened over time
leading to total disability by April 22, 2012. The Board finds that the opinion of him is speculative
in nature. In his report, Dr. Bellard opined that the relationship between subarachnoid hemorrhage
and depression remained “unclear” and it is “unlikely” that appellant’s subarachnoid hemorrhage
contributed to her continuing depressive problems, given that it completely resolved. The Board
has held that speculative and equivocal medical opinions have limited probative value.16
As none of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused total disability during the period in question, she has not met her burden
of proof.17
On appeal appellant asserts that she submitted sufficient medical evidence supporting
disability for the period claimed and specifically referenced Dr. Bellard’s January 15, 2018 report.
For the reasons set forth herein, she has not met her burden of proof to establish her claim for a
period of total disability.
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.

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

16

See Z.B., Docket No. 17-1336 (issued January 10, 2019).

17

To the extent that appellant claims that her disability is causally related to a condition not yet accepted by OWCP
(her stroke), she also bears the burden of proof to establish that the new diagnosed condition is causally related to the
accepted factors of appellant’s federal employment. The Board finds that neither Dr. Tewn or Dr. Bellard provided a
rationalized medical opinion supporting a causal relationship between the stroke condition and appellant’s
employment duties; see supra note 15.

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the period commencing February 9, 2013 causally related to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 11, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AERONAUTICAL SYSTEMS CENTER,
WRIGHT-PATTERSON AIR FORCE BASE,
OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1499
Issued: January 23, 2014

Oral Argument November 14, 2013

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On June 11, 2013 appellant filed a timely appeal of an April 29, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) which affirmed the denial of her
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board.2 On October 7, 2011 the Board set aside
OWCP’s August 4, 2010 nonmerit decision denying appellant’s June 23, 2010 request for
reconsideration. The Board directed OWCP to conduct a merit review and issue an appropriate
decision.3 In a decision dated August 15, 2012, the Board set aside OWCP’s February 13, 2012
decision, dated and remanded the case for further medical development. The Board found a
conflict in medical opinion. Dr. Pietro Seni, an orthopedic surgeon and OWCP referral
physician, diagnosed severe degenerative left hip osteoarthritis and concluded that appellant had
a preexisting arthritic condition, which was temporarily aggravated by the January 27, 2004
injury. Dr. Suzanne Croteau, an osteopath and appellant’s treating physician, diagnosed left
piriformis and hip strains and opined that the January 27, 2004 fall caused an injury to the left
hip and piriformis muscle and that work factors contributed to the development of erosive
osteoarthritis. The Board directed OWCP to refer appellant to a Board-certified specialist for a
referee examination.4 The findings contained in the Board’s prior decisions are incorporated by
reference.
OWCP referred appellant to Dr. Alan R. Kohlhaas, a Board-certified orthopedic surgeon.
In an April 10, 2013, report, Dr. Kohlhaas reviewed the record, including the history of her work
injury and a statement of accepted facts. Appellant’s history was significant for left hip
replacement performed on December 28, 2006 and a 2007 right hip replacement. Examination
revealed ambulation without difficulty. Range of motion of both hips showed internal rotation of
15 degrees, external rotation of 45 degrees, flexion was to 100 degrees and symmetrical with
minimal discomfort. Dr. Kohlhaas diagnosed osteoarthritis of both hips requiring a total hip
replacement approximately a year apart. He opined that appellant slipped and fell on ice on
January 27, 2004 and quickly returned to work. Approximately 10 months after the injury on
November 18, 2004 an x-ray revealed severe loss of the joint space in the weight-bearing portion
of the hip, which could not have developed in the short period of time from the fall in
January 2004, to the November 2004, x-ray. Dr. Kohlhaas opined that appellant sustained a
temporary aggravation (exacerbation) in her symptoms that appeared to be self-limiting.
Appellant was able to resume her activities, including skiing in Colorado. Dr. Kohlhaas noted
that the degenerative arthritis of the left hip continued to progress and, on September 21, 2005,
x-rays showed additional loss of joint space, along with some cystic formation for which
appellant underwent left hip total replacement on December 28, 2006.
2

On January 27, 2004 appellant, a logistics management specialist, slipped and fell on ice at work. OWCP
accepted her claim for back, face, scalp and neck contusions; OWCP File No. xxxxxx160. On September 15, 2006
appellant filed an occupational disease claim for left hip joint pain due to her temporary assignment in Germany for
the period April 27 to June 9, 2005, OWCP File No. xxxxxx470. On September 9, 2008 she filed another
occupational disease claim, alleging that her left hip joint symptoms were exacerbated by physical therapy. On
December 15, 2009 OWCP expanded the claim to include temporary aggravation of preexisting left hip
osteoarthritis. A hearing representative affirmed this decision on April 27, 2010. Appellant underwent left hip
replacement surgery on December 28, 2006 and right hip replacement in 2007, which were not authorized by
OWCP.
3

Docket No. 11-842 (issued October 7, 2011).

4

Docket No. 12-862 (issued August 15, 2012).

2

Dr. Kohlhaas noted that a right hip replacement was performed approximately one year
later for the same condition. He found that appellant’s January 27, 2004 fall did not cause the
degenerative changes, which were preexisting. The arthritis in the hips slowly continued to
progress with time. Dr. Kohlhaas noted that after appellant’s fall, she had significant
improvement and was able to return to a fairly active life style including skiing. He stated that
the temporary aggravation ceased by the time of her skiing trip in March 2005. Dr. Kohlhaas
opined that the December 28, 2006 left hip replacement surgery was not due to the progression
of her left hip osteoarthritis that preexisted her fall on January 27, 2004. He also determined that
appellant’s condition could be due to the femur acetabulum impingement that resulted in both
hips requiring a total hip replacement and believed that this was the most likely cause unrelated
to her two claims.
In an April 29, 2013 decision, OWCP denied modification of the decision dated
April 27, 2010. It found that the weight of the evidence rested with Dr. Kohlhaas, who found
that appellant sustained a temporary aggravation of left hip osteoarthritis, which ceased by the
time of her skiing trip in March 2005.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim. When an employee claims that he or she sustained an injury in
the performance of duty, he or she must submit sufficient evidence to establish that he or she
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged. Appellant must also establish that such event, incident or exposure caused an injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) 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 is generally 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.6
5

See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40 ECAB 1143 (1989); see Walter D.
Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB 243, 247 (1967)
(traumatic injury).
6

Solomon Polen, 51 ECAB 341 (2000).

3

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
On appeal, appellant asserts that she developed a persistent left hip piriformis muscle
condition causally related to her January 27, 2004 injury, her duties and working long hours in
Germany in 2005 and physical therapy in 2005.
In this case, OWCP accepted appellant’s traumatic injury claim for back, face, scalp and
neck contusions, OWCP File No. xxxxxx160. On September 15, 2006 appellant filed an
occupational disease claim alleging that she sustained severe left hip joint pain as a result of her
temporary job assignment in Germany at Rhein-Main Air Base for the period April 27 to June 9,
2005, OWCP File No. xxxxxx470 and on September 9, 2008 she alleged that her left hip joint
symptoms were exacerbated by the manual hip extractions administered during five sessions of
physical therapy in and around September 2005. These cases were merged and OWCP expanded
appellant’s claim to include temporary aggravation of preexisting left hip osteoarthritis.
Appellant’s claim was appealed to the Board and on August 15, 2012, the Board
reviewed the medical evidence and determined that a conflict existed in the medical evidence
between the second opinion physician, Dr. Seni, who diagnosed appellant with preexisting left
hip osteoarthritis on the basis of November 2004 x-rays. Dr. Seni opined that appellant’s fall on
January 27, 2004 temporarily aggravated this condition but the trauma sustained was insufficient
to produce permanent and irreversible anatomical changes and Dr. Croteau, appellant’s treating
physician, who opined that appellant sustained left hip and piriformis muscle injuries as a result
of the January 27, 2004 fall and that job-related weight-bearing activities and driving in
Germany precipitated osteoarthritis and inflamed the piriformis muscle. She maintained that
appellant did not have a prior history of left hip osteoarthritis before the January 27, 2004 injury.
As there was a conflict in the medical opinion evidence, OWCP properly referred appellant for
an impartial medical examination by Dr. Kohlhaas, a Board-certified orthopedist.8

7

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

8

5 U.S.C. § 8123(a), in pertinent part, provides: “If there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who
shall make an examination.”

4

Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.9
In his April 10, 2013 report, Dr. Kohlhaas reviewed the case record, the history of the
work injury and a statement of accepted facts. He examined appellant thoroughly and related his
clinical findings. Dr. Kohlhaas noted examination revealed ambulation without difficulty with
good range of motion of both hips with minimal discomfort. He diagnosed osteoarthritis of both
hips requiring a total hip replacement approximately a year apart. Dr. Kohlhaas opined that
appellant slipped and fell on ice on January 27, 2004 and subsequently a November 18, 2004
x-ray revealed severe loss of the joint space in the weight-bearing portion of the hip. He opined
that this condition could not have developed in the short period of time from the fall in
January 2004 to the November 2004 x-ray. Dr. Kohlhaas advised that appellant had a temporary
aggravation in her symptoms that appeared to be self-limiting and she was able to resume her
normal activities. He noted that the degenerative arthritis of the left hip continued to progress
and on September 21, 2005 the x-rays showed additional loss of joint space, along with some
cystic formation for which she had the left hip total replacement done on December 28, 2006.
Dr. Kohlhaas opined that the fall on January 27, 2004 did not cause the degenerative changes,
which were preexisting and the arthritis in the hip slowly continued to progress with time, as it
did on the right side. He noted that following appellant’s fall she had significant improvement
and was able to return to a fairly active lifestyle. Dr. Kohlhaas opined that the temporary
aggravation ceased by the time of her skiing trip in March 2005. He further opined that the
December 28, 2006 left hip replacement surgery was not due to the progression of appellant’s
left hip osteoarthritis that was preexisting to her fall on January 27, 2004. Dr. Kohlhaas opined
that the most likely cause of her condition was a femur acetabulum impingement that resulted in
both hips requiring a total hip replacement, which was unrelated to her two claims.
The Board finds that the opinion of Dr. Kohlhaas is sufficiently well rationalized and
based upon a proper factual background such that it is entitled to special weight. Dr. Kohlhaas
found that appellant sustained a temporary aggravation of preexisting left hip osteoarthritis
which ceased in March 2005. He reviewed the medical record and statement of accepted facts
and set forth findings on physical examination. Dr. Kohlhaas determined that appellant’s current
conditions were not causally related to her work duties. The Board finds that his opinion
constitutes the weight of the medical evidence and is sufficient to justify OWCP’s denial of her
claim for compensation.
On appeal, appellant asserts that she developed a left hip piriformis muscle condition
causally related to the January 27, 2004 fall, aggravation of the left hip condition due to working
long hours in Germany 2005 and permanent aggravation of the left hip joint while undergoing
physical therapy appointments in 2005. The medical evidence does not establish that these
conditions were causally related to her employment. Dr. Kohlhaas provided a well-reasoned
report supporting that appellant sustained a temporary aggravation of preexisting left hip
osteoarthritis which ceased in March 2005.

9

Solomon Polen, supra note 6.

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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

Docket No. 17-0053
Issued: March 23, 2017

Case Submitted on the Record

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

JURISDICTION
On October 14, 2016 appellant filed a timely appeal from a September 15, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision was rendered by the Board on June 15, 2015, which became final after 30 days of
issuance, and is not subject to further review.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d), the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.

1

20 C.F.R. § 501.6(d); see R.M., Docket No. 14-1213 (issued October 15, 2014).

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and the circumstances from
the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on June 17, 2013 appellant, then a 55-year-old nursing assistant,
sustained a closed fracture of the distal phalanx of the left great toe. He filed a claim for a
recurrence of disability (Form CA-2a) commencing December 2, 2013. Appellant stopped work
on February 3, 2014 and subsequently resigned from federal employment.
In a decision dated December 18, 2014, OWCP closed appellant’s case effective that
date, finding that the accepted fracture had resolved as of June 6, 2014, based on the opinion of
Dr. Eve N. Hanna, an attending physician Board-certified in emergency medicine. Appellant
appealed to the Board, contending that he remained totally disabled from work due to the
accepted left great toe fracture.3
By decision and order issued June 15, 2015,4 the Board affirmed OWCP’s December 18,
2014 decision, finding that there was no medical evidence of record establishing that the
accepted fracture disabled appellant from work on and after December 18, 2014 or that it
required additional medical treatment.
Appellant continued to submit letters asserting that his condition had not resolved and
that his claim had been improperly developed. He also resubmitted medical reports previously
of record and evidence that predated his June 17, 2013 work injury. The evidence also included
August 30 and October 28, 2013 radiology reports for the great toes, right knee, and right ankle.
In the August 30, 2013 right ankle x-ray report, Dr. Aaron Andrews, a diagnostic radiologist,
noted that appellant had a history of an injury two months earlier and that he had a “loud pop
after stretching yesterday.”
In letters received by OWCP on June 24 and August 26, 2016, appellant requested
reconsideration. He contended that the accepted fracture led to a worsening of diabetic
conditions. Appellant also alleged that the employing establishment deliberately obstructed his
claim.
By decision dated September 15, 2016, OWCP denied appellant’s request for
reconsideration, as it was untimely filed and failed to demonstrate clear evidence of error. It
found that appellant’s first letter requesting reconsideration was received on June 24, 2016, more
than one year after the Board’s June 15, 2015 merit decision, the final merit decision in the
claim.
3

During the pendency of the prior appeal, appellant submitted treatment notes from the employing establishment
addressing back conditions, knee conditions, and the June 17, 2013 fracture, dated from 2006 through
November 20, 2013.
4

Docket No. 15-0711 (issued June 15, 2015), Order Denying Petition for Reconsideration, Docket No. 15-0711
(issued November 13, 2015).

2

LEGAL PRECEDENT
Section 8128(a) of FECA5 does not entitle a claimant to a review of an OWCP decision
as a matter of right.6 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.7 OWCP, through regulation, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that it will not
review a decision denying or terminating a benefit unless the application for review is timely. In
order to be timely, a request for reconsideration must be received by OWCP within one year of
the date of the last merit decision for which review is sought. Timeliness is determined by the
document receipt date of the reconsideration request (the received date) in the Integrated Federal
Employee’s Compensation System (iFECS).8 The Board has found that the imposition of this
one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).9
In those cases where requests for reconsideration are untimely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulation.10
OWCP regulations and procedures state that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in OWCP’s regulation, if the claimant’s
request for reconsideration demonstrates “clear evidence of error” on the part of OWCP.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and
must be manifest on its face that OWCP committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.14 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.15 This entails a limited review by OWCP of how the
5

5 U.S.C. § 8128(a).

6

Thankamma Mathews, 44 ECAB 765, 768 (1993).

7

Id.; see also Jesus D. Sanchez, 41 ECAB 964 (1990).

8

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
9

5 U.S.C. § 10.607(b); supra note 7.

10

Supra note 6.

11

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5 (February 2016)
12

Supra note 6.

13

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

14

Jesus D. Sanchez, supra note 7.

15

Supra note 13.

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evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.16 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.17
ANALYSIS
On June 24, 2016 appellant requested reconsideration regarding his claim for recurrence
of disability. The Board finds that as more than one year elapsed from the most recent merit
decision on this issue, the June 15, 2015 merit decision, and appellant’s request for
reconsideration received by OWCP on June 24, 2016, his request for reconsideration was
untimely filed.18
The Board also finds that appellant failed to demonstrate clear evidence of error. On
reconsideration appellant contended that the accepted fracture worsened his diabetic conditions,
and that the employing establishment obstructed his claim.
In its June 15, 2015 merit decision, the Board affirmed a December 18, 2014 merit
decision of OWCP finding that appellant’s accepted condition had resolved and that he had not
established disability from work on and after December 18, 2014 due to the accepted condition.
Absent further merit review of his issue by OWCP pursuant to section 8128 of FECA, this issue
is res judicata.19
On reconsideration, appellant asserted that his condition had worsened and that OWCP
had improperly handled his claim. He provided similar letters following OWCP’s December 18,
2014 decision. The term clear evidence of error is intended to represent a difficult standard, and
the argument appellant provided on reconsideration is not the type of positive, precise, and
explicit evidence which manifested on its face that OWCP committed an error.20 Appellant’s
argument is of insufficient probative value to shift the weight in his favor and raise a substantial
question as to the correctness of OWCP’s December 18, 2014 merit decision. Likewise medical
evidence submitted by appellant after OWCP’s December 18, 2014 merit decision is insufficient
to demonstrate clear evidence of error. With regard to evidence previously of record, appellant
did not explain how such evidence raised a substantial question as to the correctness of OWCP’s
decision.21 Although appellant submitted radiology reports not previously of record, this
evidence neither addressed the cause of his condition, nor related his symptoms to a nonwork
16

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

17

Gregory Griffin, supra note 8.

18

See supra note 11 at Chapter 2.1602.4a (February 2016), which provides that a right to reconsideration within
one year accompanies any subsequent merit decision, including any merit decision by the Board.
19

A.B., Docket No. 16-0864 (issued November 16, 2016).

20

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

21

See S.E., Docket No. 16-1258 (issued December 5, 2016).

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event, stretching. As noted, the term clear evidence of error is intended to represent a difficult
standard. The Board finds that this evidence does not rise to the level of clear evidence of error.
On appeal, appellant contends that OWCP violated federal and international law by
denying his FECA claim, as the Social Security Administration and Department of Veterans
Affairs had issued him disability benefits for service-related conditions. However, the
determination of an employee’s rights or remedies under other statutory authorities does not
establish entitlement to benefits under FECA.22 Appellant also argues that OWCP’s denial of his
claim violated his constitutional rights. As the Board is an administrative body, it does not have
the jurisdiction to review a constitutional claim.23
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 15, 2016 is affirmed.
Issued: March 23, 2017
Washington, DC

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

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

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

22

H.S., 58 ECAB 554 (2007).

23

Andrew Fullman, 57 ECAB 574 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
HOSPITAL, Bremerton, WA, Employer
__________________________________________

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

Docket No. 12-1631
Issued: January 9, 2013

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 July 13, 2012 appellant filed a timely appeal from a May 14, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) which denied her traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant sustained an exacerbation of asthma causally related to a
March 15, 2012 employment incident.

1
2

5 U.S.C. § 8101 et seq.

On appeal, the Board notes that appellant submitted additional medical evidence. Since the Board’s jurisdiction
is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not consider this
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On March 27, 2012 appellant, then a 63-year-old medical support assistant, filed a
traumatic injury claim, alleging that on March 15, 2012 her asthma was exacerbated by painting
in her work area. She stopped work and returned on March 26, 2012. The employing
establishment controverted appellant’s claim alleging that her medical history documented
chronic sinusitis with nasal congestion and cough.
On April 13, 2012 OWCP advised appellant that she had not submitted any evidence to
establish her claim. It requested that she address how the March 15, 2012 incident occurred as
alleged and medical evidence to establish that her asthma resulted from the alleged incident.
In a March 15, 2012 hospital record, Dr. Reid D. Holtzclaw, a Board-certified internist,
stated that appellant was at work when she had an onset of dryness and chest tightness which felt
like typical asthma exacerbation. He related that she had increased stress at work over the past
month and felt that it may have contributed to her exacerbation. Dr. Holtzclaw diagnosed acute
exacerbation of asthma. He indicated that appellant was hospitalized and was unable to return to
work until March 26, 2012.
In a March 16, 2012 report, Dr. David P. Murphy, a Board-certified internist, stated that
appellant was a known severe asthma patient who was admitted to the intensive care unit from
the emergency department due to an asthma exacerbation most likely triggered by a sinus
infection.
In a March 26, 2012 statement, an A.C. Edwards stated that on March 15, 2012 he
noticed appellant coughing with a very red face, hanging her head over her working area desk
and gasping for breath. He brought her to the emergency room.
In an April 2, 2012 statement, appellant noted that she was working in the pediatrics
clinic and painting was being done in an area about 30 feet away from where she worked. She
explained that she had a history of sensitivity to paint and believed that her asthma exacerbation
was triggered by painting. Appellant was treated in the emergency department followed by two
days in the intensive care unit and one week at home for rest and recuperation.
In a decision dated May 14, 2012, OWCP denied appellant’s traumatic injury claim. It
accepted that the March 15, 2012, paint fume exposure, occurred as alleged but denied her claim
finding insufficient medical evidence to establish that her asthma attack was causally related to
the employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any

3
4

5 U.S.C. §§ 8101-8193.
J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

2

specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.10 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.11 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.12
ANALYSIS
OWCP accepted that on March 15, 2012 painting was being done near the area where
appellant worked but denied the claim. The Board finds that appellant did not meet her burden
of proof to establish that she sustained an exacerbation of her asthma in the performance of duty.
Appellant submitted a hospital report by Dr. Holtzclaw, who related that appellant was at
work when she had an onset of dryness and chest tightness which felt like typical asthma
exacerbation. He noted that appellant cited to increased stress at work over the past month and
felt that it may have contributed to her exacerbation. Dr. Holtzclaw diagnosed acute
exacerbation of asthma. While he provided a definitive diagnosis, he did not adequately explain
how her asthma exacerbation was related to the accepted factor of painting in appellant’s work
5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

12

James Mack, 43 ECAB 321 (1991).

3

area. The Board notes that OWCP has not accepted that any specific stressful activity occurred
at the employing establishment during the time period in question.
Dr. Murphy reported that appellant’s asthma exacerbation was most likely triggered by a
sinus infection. As previously noted, part of appellant’s burden of proof is to submit evidence,
generally only in the form of probative medical evidence, establishing that the employment
incident caused a personal injury.13 In this case, neither Dr. Holtzclaw nor Dr. Murphy opined
that appellant’s asthma exacerbation resulted from the paint fumes incident. Thus, the Board
finds that she did not meet her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that her exacerbation of acute asthma
was causally related to the March 15, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2013
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

13

Supra note 8.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland Heights, OH, Employer
__________________________________________

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

Docket No. 18-0597
Issued: October 3, 2018

Case Submitted on the Record

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

JURISDICTION
On January 26, 2018 appellant, through counsel, filed a timely appeal from a December 11,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish intermittent total
disability commencing December 14, 2016 causally related to the accepted January 6, 2014
employment injury.
FACTUAL HISTORY
On January 21, 2014 appellant, then a 53-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured both hands, including her fingers, when delivering
mail in cold weather on January 6, 2014. On April 22, 2014 OWCP accepted the claim for
frostbite, bilateral hands. Appellant received continuation of pay from January 7 to February 20,
2014, and OWCP paid wage-loss compensation on the supplemental compensation rolls from
February 21 to June 15, 2014. She returned to full-duty work on June 16, 2014.
On January 9, 2017 appellant filed a claim for compensation (Form CA-7) for intermittent
disability beginning December 31, 2016. In support of her claim, she submitted a December 15,
2016 treatment note in which Dr. Daniel A. Breitenbach, an internist, noted complaints of a
tingling, stinging sensation in all fingers that began on December 14, 2016. Dr. Breitenbach
indicated that appellant’s frostbite that occurred on January 6, 2014 was exacerbated on
December 14, 2016. He noted that digits 2 through 5 of both hands blanched with pressure at the
tips. Dr. Breitenbach diagnosed superficial frostbite with pain. On an attending physician’s report
(Form CA-20) also dated December 15, 2016, he indicated by checking a box with an “x” that the
diagnosed condition was employment related due to delivering mail in the cold. On a duty status
report (Form CA-17) also dated December 15, 2016, Dr. Breitenbach advised that appellant could
not be outside in temperatures below 30 degrees.
By development letter dated January 17, 2017, OWCP indicated that it had received a time
analysis form (Form CA-7a) noting that appellant lost six hours on January 5, 2017. It noted that
appellant had been released from care in June 2014 and that to establish her current claim, she
must provide evidence to support a worsening of the accepted condition without intervening cause.
OWCP advised that, if appellant believed her current condition was due to a new work incident or
incidents, she should file an applicable traumatic injury claim (Form CA-1) or occupational disease
claim (Form CA-2). It afforded appellant 30 days to submit the necessary evidence.
In reports dated January 16, February 17, and March 23, 2017, Dr. Breitenbach noted
appellant’s continued complaints of tingling and pain in her fingertips and that she did not go
outside if the temperature was below 30 degrees. He diagnosed superficial frostbite, subsequent
encounter, and reiterated that she could not be outside in temperatures below 30 degrees.
Appellant also filed additional claims (Form CA-7) for compensation. Accompanying time
analysis forms indicated that she claimed intermittent disability compensation from December 15,
2016 through March 14, 2017.
By decision dated April 24, 2017, OWCP denied the instant claim. It noted that, following
her frostbite injury on January 6, 2014, appellant had returned to regular-duty work on June 6,
2014 and continued regular duty “for almost 18 months [sic] prior to her resumption of medical

2

care on December 15, 2016 with Dr. Breitenbach.3 OWCP indicated that, based on the record, her
current frostbite condition was due to new and intervening circumstances, either to a specific work
event or incident during a single day or work shift, or to continued or repeated exposure to elements
of the work environment over a period longer than one workday or shift. It recommended that she
file a new claim for compensation.
On May 4, 2017 appellant, through counsel, timely requested a hearing before an OWCP
hearing representative.
Dr. J. Robert Anderson, Board-certified in orthopedic and hand surgery, provided a
May 12, 2017 report.4 He noted that appellant returned almost three years after her last visit for
follow-up of a severe frostbite injury to all fingers. Dr. Anderson indicated that all wounds had
ultimately healed, and that on December 15, 2016 she delivered mail in the cold and developed
significant sharp pain in her fingers. Hand examination demonstrated that skin of both hands was
intact with no erythema, ecchymosis, or diffuse swelling, and no gross tissue loss. Fingernails
were in place. Composite flexion was full with some subjective stiffness. There was full extension
and tendons were intact by individual testing. Wrist and forearm motion was symmetric with no
pain. There was no triggering, and Watson’s and midcarpal shift tests were negative. Distal radial
ulnar joint was stable. Sensation was intact to light touch in all distributions. Dr. Anderson
diagnosed frostbite with tissue necrosis of both hands. He indicated that it was typical to have
pain with cold exposure that would be more severe in people who had a past frostbite injury and
agreed that the restrictions provided by Dr. Breitenbach were reasonable.
In April 26 and May 30, 2017 reports, Dr. Breitenbach reiterated his findings and
conclusions. In an August 1, 2017 report, he noted that appellant had a new complaint of cramping
in her foot, fingers, neck, and side of the abdomen that occurred the previous day at the end of her
route and continued at home. Following physical examination, Dr. Breitenbach diagnosed strains
of the right and left hands, left thumb, right and left ankles and foot, and neck.
During the hearing, held on October 11, 2017, appellant testified that in December 2016,
when she delivered mail in the cold, her fingers became numb, even though she had on gloves.
She maintained that this was due to frostbite, and that she missed intermittent periods of work
when the temperature fell below 30 degrees.
Following the hearing, appellant submitted a November 20, 2017 treatment note in which
Dr. Breitenbach noted that appellant again had irritation and tingling in both hands. Hand
examination demonstrated redness of digits 2 through 5 in both hands distally on the volar surfaces.
Dr. Breitenbach diagnosed superficial frostbite and recommended that she wear gloves. In a duty
3

June 2014 to December 2016 is a 30-month period.

4

Dr. Anderson initially saw appellant on January 24, 2014 when he diagnosed frostbite, bilateral hands. He
recommended that appellant wear gloves when outdoors. On February 14, 2014 Dr. Anderson indicated that extreme
finger sensitivity could continue for several months. On February 28, 2014 he noted continued significant pain. On
March 28 and April 25, 2014 Dr. Anderson indicated that appellant had been referred to pain management for
continued pain. Appellant began pain management on May 23, 2014 and hand therapy on July 2, 2014. In the last
report, dated August 8, 2014, Dr. Salim Hayek, Board-certified in anesthesiology and pain medicine, noted diagnoses
of hand pain, frostbite, and sensory neuritis.

3

status report also dated November 20, 2017, he advised that appellant could not be outside if the
temperature was below 30 degrees.
By decision dated December 11, 2017, an OWCP hearing representative denied appellant’s
claim for compensation for intermittent disability beginning December 14, 2016. She noted that
there was no medical evidence for the period between a report dated August 8, 2014 and that of
Dr. Breitenbach dated December 15, 2016, and concluded that the medical evidence of record,
including Dr. Breitenbach’s monthly reports and the May 12, 2017 report from Dr. Anderson,
were devoid of any rationalized medical opinion indicating that appellant became unable to work
in December 2016 due to the effects of the accepted January 6, 2014 employment-related frostbite
injury.
LEGAL PRECEDENT
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.5 Furthermore, whether a particular injury
causes an employee to be disabled from employment and the duration of that disability are medical
issues which must be proven by a preponderance of the reliable, probative, and substantial medical
evidence.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.8
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9

5

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

6

Fereidoon Kharabi, 52 ECAB 291 (2001).

7

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

8

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

9

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

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish intermittent
total disability beginning December 14, 2016 causally related to the accepted January 6, 2014
employment injury.
Appellant submitted a number of reports from Dr. Breitenbach, an attending internist, dated
December 15, 2015 to November 20, 2017 who noted appellant’s complaint of tingling, numbness,
and pain in her fingers. Dr. Breitenbach diagnosed frostbite and advised that appellant could not
work in temperatures below 30 degrees. On a December 20, 2016 attending physician’s report he
indicated by checking a box marked “x” that the diagnosed condition was employment related due
to delivering mail in the cold. Dr. Breitenbach, however, included no explanation of how this
recurrence of symptoms was caused by the January 6, 2014 employment injury, which occurred
almost three years prior.
Likewise, in his report dated May 12, 2017, Dr. Anderson merely described appellant’s
current complaints and indicated that it was typical to have pain with cold exposure. While he
indicated that Dr. Breitenbach’s restrictions were reasonable, neither physician indicated that
appellant’s finger symptoms rendered her totally disabled.
Medical evidence must be 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 which, in this case was the January 6,
2014 employment injury.10 To establish that a claimed recurrence of a condition was caused by
the accepted injury, medical evidence of bridging symptoms between the present condition and
the accepted injury must support the physician’s conclusion of causal relationship.11 There is no
medical evidence of record dated between August 8, 2014 and December 15, 2016.12
As noted by OWCP, in its April 24, 2017 decision, since there was a 30-month interval
between appellant’s return to full-duty work in June 2014 and her claim for compensation in
December 2016, it would be reasonable to assume that her condition in December 2016 was
caused by a new exposure. OWCP recommended that appellant file a new claim. The record
before the Board does not indicate that this was done.
The Board notes that counsel’s assertions on appeal regarding causal relationship are
without merit and finds that the medical evidence of record is insufficient to meet appellant’s
burden of proof to establish her disability claim.
As appellant has not submitted sufficient rationalized medical opinion evidence to establish
that she was disabled to work for intermittent periods beginning December 15, 2016 due to the
January 6, 2014 employment injury, she has failed to establish that the claimed disability was
10

See W.W., Docket No. 09-1619 (issued June 2, 2010).

11

C.W., Docket No. 07-1816 (issued January 16, 2009).

12

See C.S., Docket No. 17-1345 (issued May 24, 2018).

5

employment related. She was thus not entitled to wage-loss compensation for the claimed
periods.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish intermittent
total disability commencing December 14, 2016 causally related to the accepted January 6, 2014
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2018
Washington, DC

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

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

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

13

N.R., Docket No. 14-114 (issued April 28, 2014).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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

Docket No. 12-1820
Issued: February 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 4, 2012 appellant filed a timely appeal from the March 16, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. The Board also
has jurisdiction to review OWCP’s June 12, 2012 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether descending stairs on January 19, 2012 caused appellant’s
right iliotibial band syndrome; and (2) whether OWCP properly denied appellant’s
reconsideration request.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 23, 2012 appellant, a 29-year-old city letter carrier, filed a traumatic injury
claim alleging that his right iliotibial band syndrome, or runner’s knee, was a result of
descending stairs on January 19, 2012. He noticed a sharp pain in the side of his knee, which
continued and worsened as the day progressed.
Dr. Eric R. Aronowitz, a Board-certified orthopedic surgeon, saw appellant on
January 25, 2012. He related appellant’s history of injury and complaints. Dr. Aronowitz
described his findings on physical examination and read plain radiographs. He diagnosed right
knee iliotibial band syndrome and stated: “[Appellant’s] injury occurred when he was
performing usual work activities. Subjective symptoms and objective findings are consistent
with his exam. [Appellant] has mild to moderate impairment at this time.”
In a form report that same date, Dr. Aronowitz indicated with an affirmative mark that
appellant’s diagnosis was caused or aggravated by employment activity, namely, walking. He
returned appellant to work with restrictions on January 31, 2012.
In a March 16, 2012 decision, OWCP denied appellant’s claim. It accepted that the work
incident occurred as alleged but found that the medical evidence was not sufficient to establish
that the diagnosed right knee condition was causally related to the accepted work incident.
OWCP found that Dr. Aronowitz diagnosed right knee iliotibial band syndrome but failed to
clearly address whether the work incident caused or contributed to the medical condition: “Your
physician must explain how the work event(s) caused or affected your condition, based upon an
accurate factual and medical history, citing objective findings in support of the opinion.”
On April 19, 2012 OWCP received appellant’s reconsideration request. Appellant
indicated that he was submitting additional relevant evidence needed to approve his claim. He
asked OWCP to reconsider his case on the grounds that the additional evidence from
Dr. Aronowitz clearly stated that his knee injury was causally related to repetitive motion while
walking stairs on a mail route.
On June 12, 2012 OWCP notified appellant that it had denied his reconsideration request
without reviewing the merits of his case. The notice stated that a decision was enclosed
explaining the basis for the determination.
On appeal, appellant argues that when he appealed this case not all of his documentation
was reviewed because he had two cases open for the same injury.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.2 An employee seeking benefits
under FECA has the burden of proof to establish the essential elements of his or her claim.
When an employee claims that he or she sustained an injury in the performance of duty, he or
she must submit sufficient evidence to establish that he or she experienced a specific event,
2

5 U.S.C. § 8102(a).

2

incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty,6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS -- ISSUE 1
Appellant attributed his iliotibial band syndrome to descending stairs on January 19, 2012
while in the course of his employment. He noticed a sharp pain in the side of his knee, which
continued and worsened as the day progressed. OWCP accepted that the incident occurred as
alleged. The question for determination is whether the January 19, 2012 incident caused his
iliotibial band syndrome.
Dr. Aronowitz, the attending orthopedic surgeon, generally supported appellant’s claim.
He stated that appellant’s injury occurred when he was performing usual work activities. With
an affirmative mark, Dr. Aronowitz indicated that appellant’s diagnosed condition was caused or
aggravated by walking at work. The Board has held that, when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, the opinion has little probative
value and is insufficient to establish causal relationship.8 Appellant’s burden includes the
necessity of furnishing an opinion from a physician who supports his conclusion with sound
medical reasoning.
Dr. Aronowitz did not mention that appellant felt a sharp pain in the side of his knee
while descending stairs on January 19, 2012. He did not explain what physically happened to
appellant’s knee when he descended the stairs or why the pain continued and worsened as the
day progressed. Dr. Aronowitz did not discuss the nature of iliotibial band syndrome or explain
how the January 19, 2012 caused or contributed to the diagnosed condition.

3

John J. Carlone, 41 ECAB 354 (1989).

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

3

Medical conclusions unsupported by rationale are of little probative value.9 Medical
conclusions based on incomplete histories are also of diminished probative value.10 Because
Dr. Aronowitz did not soundly explain how descending stairs on January 19, 2012 caused
appellant’s iliotibial band syndrome, the Board finds that his opinion on causal relationship, is
insufficient to establish entitlement to compensation benefits. Accordingly, the Board will
affirm OWCP’s March 16, 2012 decision denying appellant’s claim.
Appellant explains on appeal that he had two cases open for the same injury, so not all of
his documentation was reviewed. The Board’s jurisdiction is limited to reviewing the evidence
that was before OWCP at the time of its final decision.11 The Board is unable to review evidence
that appears in another case record or evidence that might have been associated with the current
record after OWCP issued its final decision. Evidence that was not before OWCP at the time of
its final decision will not be considered by the Board for the first time on appeal.
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.
LEGAL PRECEDENT -- ISSUE 2
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.12 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.13
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought.14 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

10

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
11

20 C.F.R. § 501.2(c)(1).

12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.606.

14

Id. at § 10.607(a).

4

standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.15
An OWCP decision shall contain findings of fact and a statement of reasons.16
ANALYSIS -- ISSUE 2
OWCP received appellant’s reconsideration request on April 19, 2012, about one month
after OWCP denied his traumatic injury claim. His request was therefore timely. The question
for determination is whether this request met at least one of the three standards for obtaining a
merit review of his case.
Appellant indicated that he was submitting additional relevant evidence. He specifically
referred to evidence from Dr. Aronowitz clearly stating that the knee injury was causally related
to repetitive motion while walking stairs on a mail route.
OWCP denied this request, but the enclosure explaining the basis for the determination
does not appear in the record. The Board is therefore unable to review whether the OWCP
properly denied appellant’s request. As OWCP’s decision of record does not contain findings of
fact and a statement of reasons, the Board will set aside the decision and remand the case for a
proper decision on appellant’s reconsideration request.
CONCLUSION
The Board finds that appellant has not met his burden to establish that descending stairs
on January 19, 2012 caused his right iliotibial band syndrome. The medical opinion evidence is
insufficient to establish the critical element of causal relationship. The Board also finds that this
case is not in posture for decision on whether OWCP properly denied appellant’s reconsideration
request. The record contains no findings of fact and a statement of reasons.

15

Id. at § 10.608.

16

Id. at § 10.126.

5

ORDER
IT IS HEREBY ORDERED THAT the March 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed. OWCP’s June 12, 2012 decision is set aside and
the case remanded for further action.
Issued: February 21, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6