United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Union, NJ, Employer
__________________________________________

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

Docket No. 14-731
Issued: June 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 12, 2014 appellant, through her attorney, filed a timely appeal from the
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 14, 2013 on the grounds that she had no
residuals of her work injuries after that date.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 3, 2007 OWCP accepted that appellant, then a 52-year-old transportation
security screener, sustained aggravation of left foot fibroma due to her work duties since
August 2004, including standing on concrete floors for extended periods. It later accepted that
she also sustained bilateral aggravation of plantar fibromatosis and bilateral foot sprain due to
her work duties.2
On August 11, 2006 appellant underwent surgical excision of her left foot plantar fascia
with stripping and removal of her left plantar fibromatoma. The surgery was authorized by
OWCP and she stopped work at that time.3
OWCP undertook development of the medical evidence including referral of appellant in
November 2007 to Dr. Ralph Ricciardi, a Board-certified orthopedic surgeon, for an impartial
medical examination and opinion on continuing work-related residuals. In his November 15,
2007 report, Dr. Ricciardi indicated that appellant had sensitivity along her left foot surgical scar
and noted that she would be able to work on a job which did not require more than two hours of
standing or three hours of walking per day. Appellant began to participate in OWCP-sponsored
vocational rehabilitation efforts but she did not return to work.
In an initial visit report dated December 18, 2007, Dr. Joel Lerner, an attending
podiatrist, diagnosed severe plantar fasciitis bilaterally with mild postoperative adhesions of the
left foot and status post excision of plantar fibromas of the left foot. He indicated that the
neurological examination revealed sharp, dull, fine touch and two-point discrimination to be
within normal limits in appellant’s feet, but that her chief complaint was severe pain along the
plantar fascial bands of both feet.4
In an April 21, 2008 magnetic resonance imaging (MRI) scan of appellant’s left foot, the
radiologist stated that there was a bulbous appearance of the plantar aponeurosis. He noted:
“It is difficult to differentiate postsurgical change versus residual fibroma. I will
be glad to make a direct comparison to the preoperative films to assess for interval
change. Otherwise, the underlying musculature and subcutaneous tissue within
this region appears fairly well preserved. The bones of the mid foot reveal normal
alignment. The joint spaces appear intact.”
In an October 22, 2008 report, Dr. Evangelos Megariotis, a Board-certified orthopedic
surgeon serving as an impartial medical specialist, diagnosed recurrent fibromatosis and fibroma
mass and concluded that appellant could work for 40 hours per week in a “sit down job” which

2

In January 2006, appellant began working in a limited-duty position for the employing establishment. She
received compensation on the periodic rolls for partial disability.
3

Appellant received compensation on the periodic rolls for work stoppages related to her surgery.

4

On August 4, 2008 Dr. Lerner performed OWCP-authorized foot extracorporeal shockwave lithotripsy on
appellant’s left foot.

2

only required her to walk for up to one hour per day and stand for up to one hour per day. He
indicated that additional left foot surgery should be considered.
On April 3, 2009 Dr. Lerner performed radiofrequency nerve ablation of the inferior
calcaneal and medial calcaneal nerves of appellant’s left foot. The procedure was authorized by
OWCP. On April 22, 2009 Dr. Lerner stated that appellant currently was disabled but that she
should be able to begin a job search in six to eight weeks.
In a July 28, 2009 report, Dr. Andrew Hutter, a Board-certified orthopedic serving as an
OWCP referral physician, diagnosed left foot plantar fibromatosis and stated that appellant had
reached maximum medical improvement. He posited that appellant could perform a sedentary
desk job which did not require her to stand for more than 30 minutes at a time.
The record does not contain additional medical evidence regarding appellant’s feet until
the production of an April 19, 2011 report in which Dr. Lerner indicated that she presented with
severe left foot pain in the plantar fascial band and ingrown toenails on both great toes.
Dr. Lerner diagnosed severe postoperative adhesions of the left plantar fascial band and chronic
onychocryptosis of the lateral border of the left and right hallux (greater on the left). He
indicated that appellant had reached maximum medical improvement with respect to her left foot
plantar fascial pain and could return to a “sit down position” that did not require standing, lifting
or bending. In an April 19, 2011 work restriction form, Dr. Lerner stated that appellant was
unable to engage in walking, standing, bending, stooping, squatting, kneeling, climbing and
lifting.5
In a March 8, 2012 work restrictions form, Dr. Michael Lerner, another attending
podiatrist,6 stated that appellant was unable to engage in walking, standing, bending, stooping,
squatting, kneeling, climbing and lifting.
Due to the lack of detailed current medical reports from attending physicians, OWCP
referred appellant to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for an examination
and opinion on whether he had residuals of his accepted work injuries.
In an April 18, 2012 report, Dr. Lakin discussed appellant’s accepted work injuries and
the medical treatment of her foot condition, including surgical intervention.7 He reported the
findings of his physical examination noting that sensation was intact and strength was 5/5 in
appellant’s lower extremities. Dr. Lakin indicated that appellant had a well-healed incision
under the medial aspect of the left foot arch (four centimeters long) which had minimal
5

In April 2011, appellant underwent surgery to address the nonwork-related ingrown toenail on her left big toe.
On May 24, 2011 Dr. Joel Lerner diagnosed mild postoperative cellulitis of her left hallux and multiple painful soft
tissue neoplasms consistent with porokeratosis bilaterally. On June 28, 2011 he diagnosed cellulitis of lateral border
of the left hallux.
6

Dr. Joel Lerner and Dr. Michael Lerner are members of the same practice group.

7

Dr. Lakin noted that a report of MRI scan testing of appellant’s left foot showed a bulbous appearance of the
plantar aponeurosis beneath the marker. He inadvertently listed the date of the report as August 22, 2009 but the
report was actually dated August 21, 2008.

3

tenderness and “no masses palpable.” Motor examination upon dorsiflexion, plantar flexion,
inversion and eversion was 5/5 in the left foot. Dr. Lakin noted that there was full motion of
appellant’s feet and ankles and Tinel’s testing in the tarsal tunnels was negative. He indicated
that the aggravation of appellant’s left foot fibroma and plantar fibromatosis had resolved, noting
that appellant had surgical treatment and that the “mass was excised and there is no longer any
mass present and it was just a temporary aggravation.” Dr. Lakin stated that appellant presently
had no reason for disability or need for medical treatment and noted, “The patient has just
minimal tenderness to the area of the incision. There are no masses present in the plantar aspect
of the foot, [and she] has excellent strength and excellent motion….” Dr. Lakin indicated that
appellant could perform her regular work and attached a form report that contained no work
restrictions.
In a May 16, 2012 letter, OWCP advised appellant that it proposed to terminate her
wage-loss and medical benefits on grounds that she ceased to have residuals of her accepted
work injuries. It noted that the weight of the medical evidence with respect to this matter rested
with the opinion of Dr. Lakin, OWCP’s referral physician. OWCP provided appellant 30 days to
provide evidence and argument challenging the proposed termination action.
In a May 29, 2012 letter, counsel argued that clarification was necessary regarding
Dr. Lakin’s discussion, in his April 18, 2012 report, of the MRI scan testing of appellant’s left
foot. OWCP requested that Dr. Lakin provide a supplemental report further explaining his
discussion of the MRI scan testing of appellant’s left foot.
In a June 27, 2012 report, Dr. Lakin indicated that the MRI scan testing that he reviewed
was dated April 21, 2008 and noted that, although the testing showed a bulbous appearance of
the plantar aponeurosis, appellant underwent surgery on August 11, 2006 for radical excision of
plantar fascial stripping and removal of a plantar fibroma. He stated:
“Again, it should be noted on clinical examination the patient had no mass
present. The patient has a four centimeter well-healed incision of the medial
aspect of the arch. Patient was noted to have excellent motion of the left foot and
ankle and had no masses palpable. The patient was also noted to have intact
sensation and negative Tinel[’s] testing in the tarsal tunnel. Again, in this setting
clinically there was no mass palpable. The patient’s MRI [scan] report might
have reflected postoperative scarring. Again, my specialist in the field of
orthopedics includes evaluating and treating disorders of the spine and extremities
including the foot and ankle. Therefore, I hope this clarification helps, and my
opinion remains unchanged that the claimant is in need of no further treatment
and there is no work-related disability.”
In a February 14, 2013 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective February 14, 2013 noting that this action was justified by the wellrationalized opinion of Dr. Lakin.
Appellant requested a video hearing with an OWCP hearing representative. During the
June 25, 2013 hearing, the hearing representative testified that she continued to have problems

4

with her feet and could not stand for extended periods due to pain. Appellant claimed that during
his April 2012 examination Dr. Lakin did not have her take off her shoes.
Appellant submitted a March 4, 2013 report in which Dr. Joel Lerner provided an
extensive discussion of the treatment of her foot condition. Dr. Lerner diagnosed chronic
neuritis of the left foot secondary to postoperative adhesions and chronic plantar fasciitis. He
argued that these conditions were directly related to appellant’s accepted work injuries.
In a September 9, 2013 decision, OWCP affirmed the termination of appellant’s wageloss compensation and medical benefits effective February 14, 2013 based on the wellrationalized opinion of Dr. Lakin, OWCP’s referral physician. It further determined that, after
the proper termination of compensation, effective February 14, 2013, appellant submitted a
March 4, 2013 report of Dr. Joel Lerner which now created a conflict in the medical evidence
regarding appellant’s work-related residuals after February 14, 2013. The case was remanded to
OWCP for further development of this matter to include referral of appellant for an impartial
medical examination.8
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.9 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.10 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.11
Section 8123(a) of FECA provides in pertinent part: “If there is 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.”12 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.13

8

As the subject of this remand action is in an interlocutory posture, it is not before the Board. See 20 U.S.C.
§ 501.2(c)(2) (providing that there will be no appeal with respect to any interlocutory matter decided (or not
decided) during the pendency of a case).
9

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

10

Id.

11

See Del K. Rykert, 40 ECAB 284, 295-96 (1988). After termination or modification of compensation benefits,
clearly warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.
Wentworth M. Murray, 7 ECAB 570, 572 (1955).
12

5 U.S.C. § 8123(a).

13

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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ANALYSIS
OWCP accepted that appellant sustained work-related aggravation of left foot fibroma,
bilateral aggravation of plantar fibromatosis and bilateral foot sprain. On August 11, 2006
appellant underwent surgical excision of her left foot plantar fascia with stripping and removal of
her left plantar fibroma. On April 3, 2009 she underwent radiofrequency nerve ablation of the
inferior calcaneal and medial calcaneal nerves of her left foot. The procedures were authorized
by OWCP. Effective February 14, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits based on the opinion of Dr. Lakin, a Board-certified orthopedic surgeon,
who served as an OWCP referral physician.
OWCP properly referred appellant to Dr. Lakin for a second opinion regarding whether
she had residuals of her work injury14 and the Board finds that the weight of the medical
evidence regarding work-related residuals is represented by the thorough, well-rationalized
opinion of Dr. Lakin. The April 18 and June 27, 2012 reports of Dr. Lakin establish that
appellant had no disability due to her accepted work injuries after February 14, 2013.
In an April 18, 2012 report, Dr. Lakin discussed appellant’s accepted work injuries and
the medical treatment of her foot condition, including surgical intervention. He reported normal
findings on range of motion, sensation and strength testing of appellant’s lower extremities.
Dr. Lakin indicated that appellant had a well-healed incision under the medial aspect of the left
foot arch (four centimeters long) which had minimal tenderness and “no masses palpable.” He
stated that appellant could perform her regular work and noted, “The patient has just minimal
tenderness to the area of the incision. There are no masses present in the plantar aspect of the
foot, [and she] has excellent strength and excellent motion….” In a supplemental report dated
June 27, 2012, Dr. Lakin indicated that, although a radiologist stated that diagnostic testing from
April 2008 showed a bulbous appearance of the left plantar aponeurosis, he found no mass in the
plantar area of appellant’s left foot during his examination more than four years later.
The Board has carefully reviewed the opinion of Dr. Lakin and notes that it has sufficient
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Lakin provided a thorough factual and medical history and
accurately summarized the relevant medical evidence.15 He provided medical rationale for his
opinion by explaining that the medical evidence of record and his physical examination showed
that the accepted work injuries had resolved. Dr. Lakin emphasized that there was no sign of any
mass in the plantar area of appellant’s left foot where she previously had a fibroma surgically
removed.16

14

Before OWCP and on appeal, counsel argued that Dr. Lakin was not certified in the appropriate medical
specialty to evaluate appellant’s foot condition. However, as an orthopedic surgeon, Dr. Lakin was qualified to
evaluate appellant’s total musculoskeletal condition, including that involving her feet.
15

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

16

Appellant claimed that, during his examination, Dr. Lakin did not have her remove her shoes. However, a
reading of his reports shows that Dr. Lakin did in fact perform testing which required close examination of her feet
without shoes. Appellant did not present persuasive evidence to support her assertion.

6

Before OWCP and on appeal, counsel argued that there was a conflict in the medical
evidence between the opinion of Dr. Lakin and the opinions of appellant’s attending physicians.
In an April 19, 2011 report, Dr. Joel Lerner, an attending podiatrist, diagnosed severe
postoperative adhesions of the left plantar fascial band and chronic onychocryptosis of the lateral
border of the left and right hallux (greater on the left) and indicated that appellant could return to
a “sit down position” that did not require standing, lifting or bending. However, this report is of
limited probative value on the relevant issue of this case because Dr. Lerner did not clearly
indicate whether appellant’s residuals or need for work restrictions were related to the accepted
foot conditions versus her preexisting foot condition or some nonwork-related condition (such as
ingrown toenails). The other attending physician reports from around the time of Dr. Lakin’s
reports are brief and failed to address work-related residuals or disability.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 14, 2013 on the grounds that she had no
residuals of her work injuries after that date.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chambersburg, PA, Employer
__________________________________________

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Appearances:
Stephen J. Dunn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-260
Issued: May 15, 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 2, 2007 appellant filed a timely appeal of a November 13, 2006 decision of
the Office of Workers’ Compensation Programs which denied further merit review. Because
more than one year has elapsed between the last merit decision of the Office, dated November 3,
2005, and the filing of this appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for further
merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 12, 2003 appellant, then a 48-year-old part-time flexible clerk, filed a
traumatic injury claim for a stress-related condition, alleging that on September 3, 2003 she was
called into a meeting with Cynthia A. Bussard, the postmaster, Theresa Heck, appellant’s
supervisor, and Stanley Rock, another supervisor, at which her request for union representation

was denied. When she went into Ms. Bussard’s office, she asked if the meeting was disciplinary
and requested union representation. Ms. Bussard then discussed appellant’s work performance
and whether she should change supervisors. Appellant alleged that Ms. Bussard used a mocking
and condescending tone of voice and told her she could start working and do her job, transfer to
another office or quit. She was then told she could leave the meeting and call the union.
Appellant became upset, left the meeting, went home and then to a local emergency room. She
stopped work that day. In an October 21, 2003 statement, Ms. Bussard stated that the meeting on
September 3, 2003 concerned trucks being dispatched late. When she tried to discuss this with
appellant, she began crying and left the meeting.
By decision dated November 14, 2003, the Office denied the claim on the grounds that
appellant had not established that she was harassed at the September 3, 2003 meeting.
On December 5, 2003 appellant requested a hearing and submitted statements from
coworkers, who generally alleged that Ms. Bussard harassed her.1 At the hearing held on
June 23, 2004, appellant testified about her working conditions, including the September 3, 2003
meeting, and her medical condition. Her husband also testified. In an August 24, 2004 decision,
an Office hearing representative affirmed the November 14, 2003 decision.
On August 4, 2005 appellant again requested reconsideration together with a statement
from Ms. Heck, who confirmed appellant’s description of the meeting held on
September 3, 2003. In a merit decision dated November 3, 2005, the Office denied modification
of the prior decisions.2
On October 31, 2006 appellant, through her attorney, requested reconsideration, arguing
that, as the September 3, 2003 meeting was disciplinary, it was error and abuse for appellant not
to have union representation as requested; therefore, the meeting constituted a compensable work
factor. Appellant submitted a copy of Ms. Heck’s statement, an August 21, 2006 report from

1

Appellant also filed a recurrence claim under Office file number 032018193, a claim that was accepted on
January 8, 2004 for depressive disorder, post-traumatic stress disorder and temporary aggravation of
laryngopharyngeal reflux disease resulting in hoarseness, alleging that she sustained a recurrence of disability on
September 3, 2003. By letter dated February 24, 2004, the Office informed appellant that it could not pay under that
claim and she must file for wage-loss compensation under the instant claim, adjudicated by the Office under file
number 032021227.
2

Appellant had submitted medical evidence including a September 3, 2003 emergency room report in which
Dr. Martin K. Heine, an osteopath, noted a history of an altercation with a superior at work and diagnosed an acute
dysphoric reaction. Dr. Mark F. Yurek, an attending Board-certified family practitioner, diagnosed hoarseness and
advised that appellant was totally disabled secondary to a medical condition. In a June 8, 2005 report, Dr. Stephen J.
Overcash, Ed. D., diagnosed major depression, post-traumatic stress disorder, acute anxiety disorder, panic disorder,
dependent personality disorder with avoidant traits, sleep disorder, muscular tension dysphonia, laryngeal edema,
gastrointestinal reflux disease, vocal fold polyosis, chemical erosion of teeth and high blood pressure, all of which
he advised were caused by the verbal interchange between appellant and Ms. Bussard on September 3, 2003, noting
that the meeting was seen by appellant as extremely threatening in nature such that she went into abject panic and
became severely depressed and that these emotions and feelings caused significant physiological damage as well.

2

Dr. John R. Lion, a Board-certified psychiatrist,3 a December 9, 1996 employing establishment
letter regarding a grievance filed by another postal employee and a September 9, 2003 letter from
the American Postal Workers’ Union (APWU) that listed grievances filed against the employing
establishment with a step 1 grievance attached. She also submitted a June 12, 1987 settlement
agreement between the APWU and the Harrisburg Division of the employing establishment. The
settlement agreement provided, as follows:
“Management will abide by the National Agreement and the Local Memorandum
of Understanding in that, all requests for permission to meet with a union steward
regarding a dispute, concern, or possible grievance will not be unreasonably
denied. On those occasions where business conditions prohibit immediate
attention to a problem by a steward, it shall be the responsibility of the supervisor
who denied permission to notify the steward when he/she can go on union
business.
“It is understood that management has an obligation to attempt to resolve
problems affecting the workforce; however, problem resolutions must be effected
in such a manner that they comply with our contractual obligations. Specifically,
if an employee requests to see a union steward, management cannot unreasonably
deny that request and attempt to unilaterally resolve the problem without union
involvement. To do so would violate Article 17 of the National Agreement.”
By decision dated November 13, 2006, the Office denied appellant’s reconsideration
request.4
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act5 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.6 Section 10.608(a) of the Code of
Federal Regulations provides that a timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence and/or argument that meets at least
one of the standards described in section 10.606(b)(2).7 This section provides that the
application for reconsideration must be submitted in writing and set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
3

Dr. Lion diagnosed a dysthemic disorder, generalized anxiety disorder, acute and chronic post-traumatic stress
disorder, dependent personality disorder, muscular tension dysphonia, gastrointestinal reflux disease and
hypertension and opined that the harsh criticism by her postmaster and the prohibition by the postmaster to have
union representation caused appellant’s condition. He advised that she was totally disabled.
4

Appellant then filed an appeal with the Board, docketed as 07-558. By order dated September 18, 2007, the
Board remanded the case to the Office for reconstruction and proper assemblage of the case record.
5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.608(a).

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of law; or (ii) advances a relevant legal argument not previously considered by the Office; or (iii)
constitutes relevant and pertinent new evidence not previously considered by the Office.8
Section 10.608(b) provides that when a request for reconsideration is timely but fails to meet at
least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.9
ANALYSIS
The only decision before the Board is the November 13, 2006 decision of the Office
denying appellant’s October 31, 2006 application for reconsideration of the November 3, 2005
denial of her claim. Because more than one year elapsed between the November 3, 2005 merit
decision and the filing of her appeal with the Board on November 2, 2007, the Board lacks
jurisdiction to review the merits of her claim.10
With her October 31, 2006 reconsideration request, appellant’s attorney argued that
appellant was denied union representation at the September 3, 2003 meeting which constituted
error on the part of the employing establishment. He submitted a June 12, 1987 agreement
between the APWU and the Harrisburg Division of the employing establishment which noted
that “all requests for permission to meet with a union steward regarding a dispute, concern or
possible grievance will not be unreasonably denied.” However, evidence pertaining to this 20year-old agreement does not address the Chambersburg postal facility. It is therefore irrelevant
and insufficient to establish that the Office erroneously applied or interpreted a specific point of
law. Similarly, the grievances filed by other employees are not relevant to appellant’s claim.
Furthermore, the fact that appellant was denied union representation at the September 3, 2003
meeting was previously addressed by the Office in its prior merit decisions. Appellant did not
demonstrate that the Office erroneously applied or interpreted a specific point of law, or advance
a relevant legal argument not previously considered by the Office. Consequently, she was not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).11
With respect to the third above-noted requirement under section 10.606(b)(2),
Ms. Heck’s statement had previously been reviewed by the Office in its November 3, 2005 merit
decision. Evidence that repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.12 The underlying issue in
this case is whether appellant established a compensable factor of employment. The medical
evidence submitted on reconsideration is irrelevant to this issue and does not constitute a basis

8

20 C.F.R. § 10.608(b)(1) and (2).

9

20 C.F.R. § 10.608(b).

10

20 C.F.R. § 501.3(d)(2).

11

20 C.F.R. § 10.606(b)(2).

12

Freddie Mosley, 54 ECAB 255 (2002).

4

for reopening the case.13 Appellant therefore did not submit sufficient evidence to warrant merit
review.
Appellant did not show that the Office erred in applying a point of law, advance a
relevant legal argument not previously considered, or submitted relevant and pertinent new
evidence not previously considered by the Office. It properly denied her reconsideration
request.14
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 13, 2006 be affirmed.
Issued: May 15, 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

13

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

14

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, MCDONOUGH POST
OFFICE, McDonough, GA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1105
Issued: December 31, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On May 4, 2020 appellant, through counsel, filed a timely appeal from a March 31, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as Docket No. 20-1105.
On March 29, 2016 appellant, then a 36-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on March 22, 2016 she sustained neck, back, shoulder,
wrist, and eye injuries when her employing establishment vehicle was struck by a garbage truck
while in the performance of duty.
By decision dated May 16, 2016, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that appellant sustained an injury in the
performance of duty, as alleged.

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.

On June 17, 2016 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. By decision dated July 26, 2016, an OWCP hearing
representative denied appellant’s oral hearing request, finding that the request was untimely and
that the issue in this case could equally well be addressed by a request for reconsideration before
OWCP along with the submission of new evidence.
On May 16, 2017 appellant, through then-counsel, requested reconsideration. By decision
dated August 9, 2017, OWCP denied modification of its July 26, 2016 decision.
On February 6, 2018 appellant, through then-counsel, requested reconsideration.
By decision dated August 17, 2018, OWCP accepted appellant’s claim for a right eye injury
of conjunctiva and corneal abrasion, a left shoulder joint sprain, and a left wrist sprain. However,
it denied appellant’s claim for additional conditions, finding that the evidence of record was
insufficient to establish causal relationship between the additional diagnosed conditions and the
accepted March 22, 2016 employment incident.
On May 28, 2019 appellant filed a claim for compensation (Form CA-7) for disability from
work commencing May 10, 2019 due to the accepted conditions. On the reverse side of the claim
form, the employing establishment noted that appellant returned to work on April 16, 2016 and
stopped work again on May 10, 2016. The employing establishment indicated that appellant did
not return to work after May 10, 2016 and voluntarily resigned on May 9, 2018. An attached
notice of personnel action (Form SF-50) dated May 9, 2018 documented that appellant voluntarily
resigned on that day.
In a development letter dated June 5, 2019, OWCP informed appellant that additional
evidence was needed in support of her claim for wage-loss compensation. It advised her of the
type of factual and medical evidence necessary to establish her claim and afforded her 30 days to
submit the necessary evidence.
By decision dated July 9, 2019, OWCP denied appellant’s claim for wage-loss
compensation for disability from work commencing May 10, 2019, finding that the evidence of
record was insufficient to establish causal relationship between the claimed disability and the
accepted employment injury.
On March 10, 2020 appellant, through counsel requested reconsideration of OWCP’s
July 9, 2019 decision. Further evidence was submitted.
By decision dated March 31, 2020, OWCP denied appellant’s reconsideration request. It
noted that “[t]his refers to your letter requesting reconsideration of our decision dated
August 9, 2017. Your letter was received February 6, 2018. According to the regulations in effect
on the date the decision was issued, we will not review a decision unless the request is received
within one year of that decision. We did consider your request under 20 C.F.R. § 10.607(b) to
determine whether you presented clear evidence that the Office’s last merit decision was
incorrect.”
The Board finds that this case is not in posture for decision. The preliminarily notes that
OWCP incorrectly reviewed appellant’s prior request for reconsideration dated February 6, 2018.
2

The correct reconsideration request that was subject to proper review was received on
March 10, 2020.
The Board has duly considered the matter and finds that appellant’s March 10, 2020 request
constituted a timely request for reconsideration of OWCP’s July 9, 2019 merit decision. Section
10.607(a) of OWCP’s implementing regulations provides that a request for reconsideration must
be received by OWCP within one year of the date of the decision for which review is sought.2
Because OWCP received appellant’s reconsideration request on March 10, 2020, within one year
of OWCP’s July 9, 2019 merit decision, the Board finds that it was timely filed. The clear evidence
of error standard utilized by OWCP in its March 31, 2020 decision is appropriate only for untimely
reconsideration requests.3 Therefore, the Board will set aside OWCP’s March 31, 2020 decision
and remand the case for an appropriate decision applying the correct standard for timely requests
for reconsideration. Following this and other such further development as OWCP deems
necessary, it shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the March 31, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
2
20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016).
3

See id. at § 10.607(b).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Roanoke, VA, Employer
__________________________________________

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

Docket No. 18-0012
Issued: April 18, 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 October 3, 2017 appellant, through counsel, filed a timely appeal from a July 31, 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 met his burden of proof to establish intermittent periods of
total disability beginning October 12, 2013 due to his accepted cervical condition.
FACTUAL HISTORY
On September 24, 2013 appellant, then a 45-year-old city carrier, filed an occupational
disease claim (Form CA-2), alleging that he developed ruptured discs in his cervical spine as a
result of carrying a mail satchel weighing 25 pounds for five to six days a week and walking,
bending, stooping, and lifting trays and mail. He noted that he first became aware of his claimed
condition on February 27, 2012 and realized it resulted from his federal employment on
August 29, 2013. Appellant stopped work on August 29, 2013.
Appellant submitted various treatment notes and reports dated from June 8, 2011 to
August 1, 2013 by Dr. Christy L. Arthur, a Board-certified family practitioner, for complaints of
neck, back, and left shoulder pain and discomfort. She noted diagnoses of cervical radiculopathy
at left C5-7 and a history of disc herniation at C5-6 and neuroforaminal stenosis at left C6-7.
By letter dated October 2, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish an occupational disease claim. It requested that he submit additional
medical evidence to establish that the diagnosed condition of cervical disc degeneration was
caused or aggravated by his employment. Appellant was afforded 30 days to submit the necessary
evidence.
Appellant submitted a Family and Medical Leave Act Certification of Health Care Provider
form dated September 13, 2013 and completed by Dr. James M. Leipzig, a Board-certified
orthopedic surgeon. OWCP also received reports dated August 22 and 31, 2013 and a
September 4, 2013 operative report by Dr. Leipzig regarding appellant’s treatment for C5-6 disc
herniation and C6-7 disc degeneration with cervical radiculopathy.
By decision dated December 23, 2013, OWCP accepted his repetitive duties as a mail
carrier and a diagnosed cervical condition. However, it denied appellant’s claim, finding that the
medical evidence of record failed to establish a cervical condition causally related to the accepted
employment factors.
On December 30, 2013 appellant, through counsel, requested a telephone hearing before a
hearing representative from OWCP’s Branch of Hearings and Review. A hearing was held on
July 16, 2014. Counsel asserted that appellant’s cervical condition and resultant cervical surgery
were directly related to his federal employment duties.
OWCP received a December 9, 2013 report by Dr. Leipzig, who indicated that appellant
was status post cervical surgery and that appellant’s arm symptoms had completely resolved.
Dr. Leipzig related that appellant believed his injury resulted from his letter carrying
responsibilities and that he could not return to work. He diagnosed status post anterior cervical
decompression and fusion, C5-6 and C6-7, with progression to healing.

2

Appellant submitted a duty status report (Form CA-17) dated December 31, 2013 by an
unknown provider. It noted his complaints of cervical spasms and pain, thoracolumbar spasms
and pain, and extremity pain. The provider indicated that appellant was able to work within
capabilities in the functional capacity evaluation (FCE).
OWCP received an August 15, 2013 cervical spine magnetic resonance imaging (MRI)
scan report by Dr. Michael Hollander, a Board-certified diagnostic radiologist. Dr. Hollander
noted cervical spondylosis most severe at C5-6 on the left.
In a June 10, 2014 letter, Dr. Arthur related that she initially treated appellant in 2012 for
complaints of neck and left arm pain. She described the medical treatment she provided and noted
that he underwent surgery. Dr. Arthur concluded that appellant’s claim should be considered for
workers’ compensation. She opined: “carrying his letter bag directly related to the cervical
radiculopathy, which has rendered him unable to further work as a letter carrier.”
Appellant began to receive medical treatment from Dr. Cyrus E. Bakhit, a Board-certified
anesthesiologist. In reports dated May 7 to August 21, 2014, Dr. Bakhit related appellant’s
complaints of neck pain since February 2012 and noted that he worked for the employing
establishment carrying large bags of mail. He reviewed appellant’s history, including the
August 2013 surgery. Upon initial examination of appellant’s cervical spine, Dr. Bakhit observed
tenderness to palpation of the cervical paraspinals at the C5-7 levels bilaterally. He reported
decreased range of motion with extension at 10 degrees and decreased motor strength in the upper
extremities. Dr. Bakhit indicated that subsequent physical examination findings were unchanged.
He diagnosed cervical radiculopathy, cervical facet arthropathy, cervical spine degenerative disc
disease, cervical spinal stenosis, and status post cervical fusion at C5-7. Dr. Bakhit administered
epidural injections and prescribed pain medication.
In a June 26, 2014 cervical spine MRI scan report, Dr. Robert Zeller, a Board-certified
diagnostic radiologist, related appellant’s complaints of neck pain radiating to his left shoulder and
arm. He reported status post anterior inter-body bone graft and fusion from C5 through C7,
moderately large left paracentral disc herniation at C5-6, and small left paracentral disc herniation
at C6-7.
Effective August 19, 2014, the employing establishment removed appellant from federal
service due to improper conduct.
By decision dated October 1, 2014, a hearing representative set aside the December 23,
2013 denial decision and remanded the case for further medical development. She determined that
Dr. Arthur’s affirmative opinion regarding causal relationship was sufficient to require a second
opinion examination to determine whether appellant’s employment activities caused or contributed
to his diagnosed cervical conditions.
OWCP referred appellant, along with a statement of accepted facts and the case record, to
Dr. William Andrews, a Board-certified orthopedic surgeon, for a second opinion to determine
whether appellant sustained any medical conditions as a result of his mail carrier employment
duties, whether his cervical decompression surgery was medically necessary as a result of work
exposure, and whether he was able to perform his regular duties.

3

In a December 17, 2014 report, Dr. Andrews reviewed appellant’s history and provided
physical examination findings. He diagnosed cervical disc herniation and lumbar degenerative
disc disease. Dr. Andrews indicated that appellant’s cervical disc herniation, and resultant surgery,
were directly related to his work as a city mail carrier. He noted that appellant’s lumbar disc
disease was not work related. Dr. Andrews reported that appellant was unable to work his regular
duties, but could work with restrictions for at least six months. He provided a work capacity
evaluation (OWCP-5c) with appellant’s work restrictions.
By decision dated January 15, 2015, OWCP accepted appellant’s claim for cervical disc
herniation.3
Dr. Bakhit continued to treat appellant. In reports dated April 7 to September 21, 2015, he
related appellant’s complaints of continued neck and low back pain. Dr. Bakhit reviewed
appellant’s history and conducted an examination of his cervical spine. He reported decreased
lordosis and bilateral paraspinal tenderness, left greater than right, upon palpation. Range of
motion was diminished. Dr. Bakhit diagnosed cervical disc disruption, other chronic postoperative
pain, cervical spondylosis without myelopathy, and displacement of cervical intervertebral disc
without myelopathy. He administered several epidural steroid injections and prescribed pain
medication.
On December 4, 2015 appellant filed several Form CA-7 claims for wage-loss
compensation covering the period October 12, 2013 through November 27, 2015, and continuing.4
By letter dated December 16, 2015, OWCP informed appellant that it received his claim
for wage-loss compensation for the period October 12, 2013 to November 27, 2015. It requested
additional evidence to establish that he was disabled from work during the claimed period as a
result of his accepted condition. Appellant was afforded 30 days to submit the requested evidence.
By decision dated October 20, 2016, OWCP denied appellant’s claim for intermittent
wage-loss compensation for the period October 12 to November 1, 2013. It determined that the
record failed to establish that he sought medical treatment during the claimed period as a result of
his accepted cervical condition.

3
On July 7, 2015 appellant filed a claim for a schedule award (Form CA-7). In a November 22, 2015 schedule
award evaluation report, Dr. Robert W. Macht, a general surgeon, provided an accurate history of injury and physical
examination findings. He noted that appellant reached maximum medical improvement by September 30, 2015.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) and July/August 2009 The Guides Newsletter, Dr. Macht opined that appellant had 12 percent
permanent impairment of his left upper extremity. In an August 16, 2016 report, Dr. Michael M. Katz, an OWCP
medical adviser, reviewed Dr. Macht’s report and concluded that under the A.M.A., Guides, appellant had 12 percent
permanent impairment of his left upper extremity. On October 12, 2016 OWCP granted appellant a schedule award
for 12 percent permanent impairment of the left upper extremity. The award ran from October 28, 2015 to
July 16, 2016.
4

Based on the time analysis report (Form CA-7a) certified by the employing establishment, appellant claimed a
combination of sick, annual, and/or leave without pay (LWOP) between October 15 and 19, 2013. Beginning
October 22, 2013, he claimed eight hours of LWOP per day.

4

By separate decision dated October 20, 2016, OWCP denied appellant’s claim for wageloss compensation for temporary total disability beginning November 2, 2013 and continuing. It
found that he had not submitted medical evidence sufficient to establish that he was disabled from
work beginning November 2, 2013 as a result of his accepted cervical condition.
On October 25, 2016 appellant, through counsel, requested a telephone hearing before a
representative from OWCP’s Branch of Hearings and Review. Counsel submitted appellant’s time
and attendance sheets for the period October 5, 2013 through August 22, 2014.
A hearing was held on May 17, 2017. Counsel noted that, after appellant’s cervical surgery
on September 4, 2013, he received some intermittent days of sick pay and holiday pay. However,
a few days remained unpaid. Counsel asserted that, in light of the fact that appellant’s cervical
surgery was approved, she did not need significantly more evidence to prove disability. Appellant
testified that his physician never released him back to work due to limited range of motion.
By decision dated July 31, 2017, an OWCP hearing representative affirmed the October 20,
2016 decisions. She found that the medical evidence of record was insufficient to establish that
appellant was disabled from work for the period October 12, 2013 to November 27, 2015 as a
result of his accepted cervical condition. The hearing representative determined that the
contemporaneous medical evidence of record failed to address his alleged disability from work
during the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.6 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury.7
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.8 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled from work.9 When the
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints, without objective findings of disability being shown, the physician has

5

Supra note 2.

6

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

9

Dean E. Pierce, 40 ECAB 1249 (1989).

5

not presented a medical opinion, supported by medical rationale, on the issue of disability or a
basis for payment of compensation.10
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.11
ANALYSIS
OWCP accepted that appellant sustained cervical disc herniation as a result of his
employment duties. Appellant stopped work on August 29, 2013, and underwent cervical surgery
on September 4, 2013. He filed claims for wage-loss compensation for the period October 12,
2013 through November 27, 2015 and continuing. OWCP denied appellant’s claim for wage-loss
compensation during the claimed period.
The Board finds that appellant has failed to establish entitlement to wage-loss
compensation for the period October 12, 2013 to November 27, 2015, and continuing due to his
accepted cervical condition.
During appellant’s alleged period of total disability, he received medical treatment from
Dr. Leipzig. In a December 9, 2013 report, Dr. Leipzig reviewed appellant’s history and indicated
that appellant was status post cervical surgery, but continued to experience symptoms. He
diagnosed status post anterior cervical decompression and fusion, C5-6 and C6-7, with progression
to healing. Dr. Leipzig related that appellant believed his employment duties as a letter carrier
contributed to his injury and that he could not return to work. He, however, did not provide an
opinion on appellant’s ability to work. Rather, Dr. Leipzig merely repeated appellant’s belief that
he was unable to work due to his injury. The Board has found that, when a physician’s statements
regarding an employee’s ability to work consists only of repetition of the employee’s complaints,
without objective findings of disability being shown, the physician has not presented a medical
opinion on the issue of disability.12 Dr. Leipzig did not discuss any objective findings to support
appellant’s inability to work, nor did he explain why he was unable to work as a result of his
accepted cervical condition.13 The Board finds, therefore, that Dr. Leipzig’s report failed to
establish that appellant was disabled from work as a result of his accepted cervical condition.
Dr. Leipzig’s opinion, therefore, is of diminished probative value.
Dr. Arthur’s letter also fails to establish appellant’s alleged disability due to his accepted
condition of cervical disc displacement. In a June 10, 2014 letter, she noted that she initially
treated appellant in 2012 for his neck and left arm pain. Dr. Arthur opined: “carrying [appellant’s]
letter bag directly related to the cervical radiculopathy, which has rendered him unable to further
10

See Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Amelia S. Jefferson, supra note 8.

12

P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).

13

See M.M., Docket No. 16-0541 (issued April 27, 2010).

6

work as a letter carrier.” The Board notes that Dr. Arthur only diagnosed cervical radiculopathy,
which was not an accepted condition. Dr. Arthur did not reference appellant’s accepted condition
of cervical disc herniation.14 Furthermore, she did not provide an opinion with sound medical
reasoning establishing that his cervical radiculopathy was causally related to his accepted
condition of cervical disc herniation or to his employment duties. Because Dr. Arthur did not
attribute appellant’s disability to the accepted condition of cervical disc herniation, her letter is
insufficient meet his burden of proof.15
Other reports from Dr. Leipzig and Dr. Arthur are of limited probative value on the issue
of total disability as they predate the claimed period of disability and otherwise do not address the
claimed period of disability.16
Appellant also received medical treatment from Dr. Bakhit. In reports dated May 7, 2014
to September 21, 2015, Dr. Bakhit reviewed appellant’s history and indicated that appellant carried
large bags of mail at work. He provided physical examination findings and diagnosed cervical
radiculopathy, cervical facet arthropathy, cervical spine degenerative disc disease, cervical spinal
stenosis, and status post cervical fusion at C5-7. Although Dr. Bakhit accurately described that
appellant carried a large mailbag at work and diagnosed cervical conditions, he did not address the
relevant issue of whether appellant was disabled from his employment as a result of his accepted
cervical condition. His reports, therefore, are of diminished probative value and are insufficient
to establish appellant’s disability claim.17 Likewise, Dr. Zeller’s June 26, 2014 cervical spine MRI
scan report also offered no opinion on appellant’s alleged disability from work and fails to meet
appellant’s burden of proof.
The December 31, 2013 Form CA-17 is also insufficient to establish appellant’s claim
because the record did not indicate whether the provider who signed the report is considered a
physician under FECA. The Board has held that a medical report may not be considered probative
medical evidence if there is no indication that the person completing the report qualifies as a
physician under FECA.18
Moreover, Dr. Andrews’ December 7, 2014 second opinion report also fails to establish
that appellant was totally disabled from work from October 12, 2013 to November 27, 2015. On
the contrary he indicated that appellant could work with restrictions. Thus, the Board finds that
this report failed to establish that appellant was totally disabled from work during the claimed
period as a result of his accepted cervical condition.

14

See B.L., Docket No. 15-0801 (issued July 10, 2015).

15

R.A., Docket No. 14-1327 (issued October 10, 2014).

16

See S.W., Docket No. 17-0240 (issued July 25, 2017).

17
See William A. Archer, supra note 8 (the Board will not require OWCP to pay compensation for disability in the
absence of medical evidence directly addressing the specific dates of claimed disability).
18

R.M., 59 ECAB 690 (2008); section 8101(2) of FECA provides as follows: the term physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and, osteopathic practitioners within the scope
of their practice as defined by State law.

7

As appellant has failed to provide rationalized medical evidence sufficient to establish total
disability during the claimed period due to his accepted cervical condition, he has failed to meet
his burden of proof.19
On appeal, counsel alleges that OWCP’s decision was contrary to fact and law. As
explained above, appellant has not provided rationalized medical evidence sufficient to establish
total disability causally related to his accepted cervical condition. He, therefore, failed to meet his
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish intermittent
periods of total disability beginning October 12, 2013 due to his accepted cervical condition.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 18, 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
19

Supra note 12.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, HIGH POINT POST
OFFICE, High Point, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0594
Issued: November 9, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 1, 2021 appellant filed a timely appeal from a November 23, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 21-0594.
On March 14, 2020 appellant, then a 68-year-old retired city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that factors of his federal employment required
continuous and intermittent walking, climbing, standing, pushing, pulling, and carrying of the mail
which caused or aggravated bilateral knee osteoarthritis. He stated that he first realized his
condition was due to factors of his federal employment on December 9, 2019. OWCP assigned
the claim OWCP File No. xxxxxx591.
In a supplemental statement, appellant explained that he had previously sustained workrelated injuries to his knees: left knee OWCP File No. xxxx xx892 and right knee OWCP File
No. xxxxxx131.
By decision dated May 1, 2020, OWCP accepted that appellant had established that the
employment factors occurred, as alleged, but denied the claim as causal relationship had not been
established between the diagnosed medical condition and the accepted employment factors. It
concluded, therefore, that the requirements had not been met to establish an injury or medical
condition causally related to the accepted employment factors.

On November 11, 2020 appellant requested reconsideration and submitted additional
evidence. By decision dated November 23, 2020, OWCP denied modification of its May 1, 2020
decision.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when proper
adjudication of the issues depends on frequent cross-referencing between case files.1 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 2 In the present claim, appellant
alleged injuries to both knees. OWCP previously accepted his claim for a left knee injury under
OWCP File No. xxxxxx892 and a right knee injury under OWCP File No. xxxxxx131. However,
the evidence pertaining to those files is not part of the case record presented before the Board. For
a full and fair adjudication, the case shall be remanded to OWCP to administratively combine the
current case record with OWCP File No. xxxxxx892 and OWCP File No. xxxxxx131, so it can
consider all relevant claim files and accompanying evidence in adjudicating appellant’s
occupational disease claim. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision. Accordingly,

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000); T.D., Docket No. 20-1119 (issued January 29, 2021); R.R., Docket No. 19-0368 (issued
November 26, 2019).
2

Id.; M.B., Docket No. 20-1175 (issued December 31, 2020); L.M., Docket No. 19-1490 (issued January 29, 2020).

2

IT IS HEREBY ORDERED THAT the November 23, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for furth er proceedings
consistent with this order of the Board.
Issued: November 9, 2021
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-0656
Issued: October 28, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On February 6, 2018 appellant, through counsel, filed a timely appeal from a
December 22, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned the appeal Docket No. 18-0656.
On October 16, 2000 appellant, then a 45-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she lifted a parcel from her truck and injured her shoulder,
arms, and neck while in the performance of duty. OWCP accepted her claim for cervical strain
and sprain/strain of the bilateral shoulders and upper arm. It later expanded appellant’s claim to
accept the additional conditions of adhesive capsulitis of the bilateral shoulders, myalgia, and
myositis.
On January 7, 2002 appellant filed a claim for a schedule award (Form CA-7).

1

In all cases in which a representative has been authorized in a matter before the Board, no claim fo r a fee fo r
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 appro ved b y t h e Bo ard . Id . A n
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, su bject
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.

By decision dated August 8, 2002, OWCP granted appellant a schedule award for 11
percent permanent impairment of the left arm and 9 percent permanent impairment of the right
arm.
On April 13, 2006 appellant filed a claim for an increased schedule award (Form CA-7).
By decision dated July 27, 2007, OWCP granted appellant a schedule award for an
additional 3 percent permanent impairment of the right upper extremity, for a combined 15
percent, and an additional 10 percent permanent impairment of the left upper extremity for a
combined 18 percent.
On June 27, 2016 appellant filed a claim for an increased schedule award (Form CA-7).
On August 29, 2016 OWCP sent the medical record and a statement of accepted facts to
an OWCP district medical adviser (DMA). In a report dated September 7, 2016, the DMA found
no cervical spine impairment and no additional permanent impairment of her upper extremities.
He noted that for the shoulders, the diagnoses of sprain, myalgia, myositis fell under diagnosisbased impairment (DBI) method under Table 15-5, page 401 of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides)2 and could be classified under shoulder pain and shoulder strain. However,
since there was no rating for adhesive capsulitis it could also be rated using the range of motion
(ROM) method based on Table 15-34, page 475 of the A.M.A., Guides and since that was the
greatest rating for the shoulder region that would be the impairing condition. The DMA relied
upon the ROM measurements from a functional capacity evaluation dated September 26, 2014,
completed by a physical therapist.
In support of her claim for an increased schedule award, appellant submitted an
impairment rating report from Dr. Catherine Watkins Campbell, a Board-certified physiatrist,
dated September 28, 2016.
Dr. Watkins Campbell provided physical examination findings
including detailed ROM measurements of appellant’s bilateral upper extremities. She used the
DBI method of the A.M.A., Guides found in Table 15-5, Shoulder Regional Grid, for the
diagnoses of shoulder sprain/strain. Dr. Watkins Campbell found that appellant had one percent
right upper extremity impairment and two percent left upper extremity impairment pursuant to
the A.M.A., Guides.
In a report dated November 1, 2016, a DMA reviewed Dr. Watkins Campbell’s report
and noted findings of a significant amount of symptom magnification, inconsistent ROM
measurements, active ROM that did not match passive ROM, and significant exaggerated
behaviors. He noted that a normal passive ROM precluded a diagnosis of adhesive capsulitis.
The DMA noted that Dr. Watkins Campbell rated appellant’s upper extremities for partial
thickness rotator cuff tear of the left shoulder and a strain of the right shoulder. He provided a
rating using the DBI method which confirmed the ratings of Dr. Watkins Campbell.
Appellant also submitted a November 18, 2016 report from Dr. Frederick S. Frost, a
Board-certified physiatrist, who rated appellant based on the A.M.A., Guides, for the diagnosed
conditions of sprain of the shoulder and upper arm. Dr. Frost opined that appellant sustained 12

2

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

2

percent impairment of the left upper extremity and 12 percent impairment of the right upper
extremity.
By decision dated March 29, 2017, OWCP denied appellant’s claim for an increased
schedule award.
On April 11, 2017 appellant, through counsel, requested a telephonic hearing which was
held on October 13, 2017.
By decision dated December 22, 2017, an OWCP hearing
representative affirmed the decision dated March 29, 2017.
Regarding the application of ROM or DBI impairment methodologies in rating
permanent impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to
calculate an impairment rating for the diagnosis in question, the method
producing the higher rating should be used.” (Emphasis in the original.)3
The Bulletin further advises:
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is [in]sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”4
As noted, FECA Bulletin No. 17-06 indicates that in measuring ROM, the evaluator
should obtain three independent measurements and use the greatest measurement to determine
the extent of impairment.5 The evidence presently of record fails to establish that Dr. Watkins
Campbell properly measured the ROM of appellant’s bilateral upper extremities three times prior
3

FECA Bulletin No. 17-06 (May 8, 2017).

4

Id.

5

Supra note 3; see also J.V., Docket No. 18-1052 (issued November 8, 2018).

3

to rating the extent of her permanent impairment. It was therefore incumbent upon the DMA to
obtain the necessary ROM measurements to complete the full rating using both the ROM and
DBI methodologies and thereafter identify the higher impairment rating for the claims
examiner.6
The Board therefore finds that because OWCP failed to follow the procedures set forth in
FECA Bulletin No. 17-06, the case must be remanded. 7 On remand, OWCP should further
develop the medical evidence, including referral to a medical examination to obtain three
independent ROM measurements as required under FECA Bulletin No. 17-06. Following this
and other such development as deemed necessary, it shall issue a de novo decision.8
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further proceedings consistent
with this order of the Board.
Issued: October 28, 2019
Washington, DC

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

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

Janice B. Askin, Judge
6
See M.D., Docket No. 18-1703 (issued January 18, 2019) (finding that a DMA should advise as to th e med ical
evidence necessary to complete the ROM method of rating if the medical evidence of record is insufficient t o rat e
appellant’s impairment using loss of ROM).
7

R.A., Docket No. 18-1331 (issued April 24, 2019); F.V., Docket No. 18-0427 (issued November 9, 2018).

8

J.F., Docket No. 17-1726 (issued March 12, 2018).

4

Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.O., Appellant
and
DEPARTMENT OF THE TREASURY, U.S.
MINT, West Point, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1422
Issued: March 19, 2019

Case Submitted on the Record

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

JURISDICTION
On July 17, 2018 appellant, through counsel, filed a timely appeal from a May 25, 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 cervical, shoulder,
and hypertensive conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On December 27, 2016 appellant, then a 53-year-old metal forming machine operator, filed
a notice of recurrence (Form CA-2a) under OWCP File No. xxxxxx828, claiming that she
sustained a recurrence of disability on December 8, 2016.3 She indicated that pain from a
March 2012 employment injury had recurred which also negatively affected her blood pressure.
Appellant stopped work that day.
In an undated statement, appellant further explained that, following the March 2012
employment injury, she eventually returned to full duty. On the morning of December 8, 2016 she
was scheduled to work on a bullion press which required lifting 30 to 100 pounds every 15 minutes
throughout the day. Appellant related that she asked three supervisors for reassignment because
her neck was hurting, and even though a coworker volunteered to switch with her, the request was
denied. She noted that she had a meeting at 1:30 p.m. on another matter and, following the
meeting, she left work. Appellant reported that on the following day she went to urgent care
because her blood pressure was elevated and she was experiencing neck pain.
In e-mail correspondence dated February 6, 2017, K.D., an employing establishment
supervisor, indicated that on the morning of December 8, 2016 appellant was assigned to a coining
press as a press operator. He confirmed that she had mentioned shoulder pain to Supervisor D.B.
when she asked to switch duties. K.D. acknowledged that the job description indicated that
carrying 30 to 100 pounds was required, but that 35 to 40 pounds in day-to-day pressing was
average, with heavier weights done by 2 people. The employing establishment also forwarded a
job description for metal forming machine operator.
Medical evidence submitted included a December 9, 2016 report in which Lora Lyon, a
nurse practitioner, indicated that appellant was under her medical care and should be excused from
work until December 12, 2016. On December 12, 2016 Dr. Klein advised that appellant could
return to work on December 28, 2016.
By letter dated March 16, 2017, OWCP informed appellant that, based on the
circumstances described in the December 2016 recurrence claim, it appeared that she was claiming
a new occupational disease due to repetitive work/exposure. It indicated that a new file number
would be assigned.

3

The record reflects that, on August 20, 2012, under OWCP File No. xxxxxx828, OWCP accepted appellant’s
May 17, 2012 occupational disease claim for sprain of neck and cervical radiculitis. In an October 12, 2012 report,
Dr. Arthur Klein, an osteopath who is Board-certified in family medicine, advised that appellant could return to full
duty with no restrictions commencing October 15, 2012. Appellant’s current claim was adjudicated under OWCP
File No. xxxxxx241. OWCP combined the claims, with the latter becoming the master file.

2

In reports dated December 16, 2016, Dr. Enrique Sanz, a Board-certified physiatrist, noted
treating appellant for her 2012 employment injury. He described physical examination findings
and noted that appellant had an exacerbation of symptoms the previous week and had to stop work
due to persistent right-sided neck pain with some radicular symptoms. Dr. Sanz noted that x-rays
of the cervical spine showed some straightening of the normal lordotic curve with some mild disc
space narrowing at C5-6 and that right shoulder x-rays were essentially normal. He opined that
appellant’s symptoms were causally related to injuries sustained in a motor vehicle accident, and
that she was totally disabled.
On January 11, 2017 Dr. Esteban Cuartas, an orthopedic surgeon, noted that he last saw
appellant on August 30, 2012 and that beginning in December 2016, she had sharp neck pain that
radiated into her shoulders. He noted her physical examination findings and diagnosed cervical
disc degeneration at C5-6, right cervical radiculopathy, sprain of ligaments of cervical spine, and
bilateral shoulder impingement syndrome. Dr. Cuartas advised that appellant was totally disabled
and opined that her current symptoms were causally related to the injury at work, her complaints
were consistent with the history of injury, and the history of injury was consistent with his
objective findings.
By report dated January 12, 2017, Dr. Sanz reported that appellant’s symptoms were
unchanged. He reiterated that she was totally disabled and advised that her current symptoms were
causally related to the injury at work, were consistent with the history of injury/illness, and her
history of injury/illness was consistent with his objective findings.
Dr. Barry S. Hyman, a Board-certified orthopedic surgeon, treated appellant on
January 20, 2017. He described the March 2012 employment injury, and that she had returned to
see Dr. Sanz in 2016 for pain in the neck and both shoulders, and that she had also recently seen
Dr. Cuartas and noted his diagnoses. Following physical examination, Dr. Hyman injected
appellant’s right shoulder and recommended physical therapy and a right shoulder magnetic
resonance imaging (MRI) scan. He opined that her bilateral shoulder and neck symptoms were
causally related to her employment.
In reports dated January 24, 2017, Dr. Sanz noted that appellant’s symptoms were
unchanged. He reiterated his findings and conclusions.
A February 14, 2017 MRI scan of the cervical spine demonstrated multilevel disc
degenerative and osteoarthritic changes, mild canal narrowing at C4-5 and C5-6, significant right
foraminal narrowing at C5-6, and no cord abnormality.
On February 17, 2017 Dr. Cuartas noted his review of the February 14, 2017 cervical spine
MRI scan. He advised that appellant’s symptoms of axial neck pain and radicular pain were
moderate and most likely related to cervical strain and shoulder dysfunction. Dr. Cuartas
recommended an electrodiagnostic study to evaluate radiculopathy and advised that she was totally
disabled. Dr. Sanz continued to report that appellant was totally disabled.
By development letter dated April 5, 2017, OWCP informed appellant that additional
factual and medical evidence was needed to establish her occupational disease claim. It advised

3

her of factual and medical evidence needed and provided a questionnaire for her to complete.
OWCP afforded appellant 30 days to submit additional evidence.
Subsequently submitted evidence included a February 24, 2017 report in which Dr. Hyman
noted his review of the February 24, 2017 MRI scan of the cervical spine. He injected appellant’s
left shoulder and recommended physical therapy for both shoulders. Dr. Hyman reiterated his
findings and conclusions and advised that appellant could not work.
On April 24, 2017 Dr. Sanz reported that appellant’s symptoms were worsening with
radiating right-sided neck pain. He noted the cervical spine MRI scan findings. Dr. Sanz advised
that the repetitive nature of her job involving lifting 30-pound cassettes and packaging with
constant movement of her neck and shoulders for eight hours daily caused her chronic condition,
and that it would be detrimental for her to continue this type work. He reiterated his conclusions
and advised that appellant could not work.
By decision dated May 17, 2017, OWCP found that the medical evidence submitted was
insufficient to establish that the claimed medical condition was causally related to the accepted
work factors and denied the claim.
On June 20, 2017, appellant requested a review of the written record by an OWCP hearing
representative.
In reports dated May 22 to September 5, 2017, Dr. Sanz described physical examination
findings, noted that appellant’s symptoms were unchanged, reiterated his conclusions that
appellant’s conditions were employment related, and advised that she could not work. In
correspondence dated June 21, 2017, he indicated that she currently felt incapable of returning to
work since work duties were too strenuous on her body, noting that she worked eight hours daily
with duties of constant lifting and carrying up to 50 pounds, was expected to constantly feed a coin
press, and reach above shoulder levels. Dr. Sanz concluded that it appeared that the constant heavy
lifting, carrying, and reaching overhead caused appellant constant symptoms such that she was no
longer able to perform her job duties.
By decision dated September 25, 2017, an OWCP hearing representative found the medical
evidence of record was of limited probative value because it was, at best, speculative. She affirmed
the May 17, 2017 decision concluding that appellant failed to submit a physician’s report that
clarified and explained how her specific work factors caused or aggravated the diagnosed neck,
bilateral shoulder, or blood pressure conditions.
On February 27, 2018 appellant, through counsel, requested reconsideration. He asserted
that her current conditions were an aggravation of the accepted March2012 claim and that the
medical evidence submitted was sufficient to establish causal relationship.
In a June 22, 2017 report, Dr. Hyman reiterated his findings and conclusions. In
correspondence dated February 7, 2018, he noted that appellant’s work required her to lift from 30
to 100 pounds of coins about every 30 minutes each day, and that she also polished coins by hand.
Dr. Hyman reviewed appellant’s medical treatment which began on January 20, 2017. He noted
that she was 100 percent temporarily impaired per Dr. Sanz and maintained that the type of
repetitive work she did, without a history of trauma or prior injury, resulted in an overuse injury
4

and that it was probable that this caused her neck and bilateral shoulder symptoms which began in
March 2012 and were exacerbated in January 2016 [sic]. Dr. Hyman opined that this type of lifting
could cause both cervical disc bulging/herniation, shoulder tendinitis, and possible rotator cuff
tearing. He concluded that she was permanently disabled as she had not improved after treatment
for more than a year. Dr. Hyman advised that he did not think additional treatment would change
her disability status, indicating that he did not think she could return to the same type of work.
Dr. Sanz submitted reports dated September 5, 2017 to April 16, 2018. In each report he
indicated that appellant’s symptoms were unchanged, described physical examination findings,
and advised that in regards to her job, he felt that its repetitive nature, which involved lifting 30pound cassettes and packaging with constant movement of her neck and shoulder, had caused her
chronic condition. Dr. Sanz reported that she had to perform those repetitive movements each day
during an eight-hour shift, but was currently unable to do so. He opined that, due to appellant’s
persistent symptoms, it would be detrimental for her to continue performing this type of work.
Dr. Sanz indicated that her current symptoms were causally related to the injury at work, noting
that they were consistent with the history of the injury/illness, that her history of the injury/illness
was consistent with his objective findings, and that appellant could not return to work.
By decision dated May 25, 2018, OWCP denied modification of its prior decisions. It
found that the medical evidence of record was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or specific condition for which compensation in claimed is causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.6

4

Supra note 2

5

D.J., Docket No. 18-0620 (issued October 10, 2018).

6

See C.M., Docket No. 17-1977 (issued January 29, 2019); Roy L. Humphrey, 57 ECAB 238 (2005).

5

To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.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 claimant.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical,
shoulder, or hypertensive conditions causally related to the accepted factors of her federal
employment.
The record reflects that appellant sought emergency treatment on December 9, 2016. This
report was completed by Ms. Lyon, a nurse practitioner. Certain healthcare providers such as
physician assistants, nurse practitioners, physical therapists, and social workers are not considered
“physician[s]” as defined under FECA.9 Consequently, their medical findings and/or opinions will
not suffice for purposes of establishing entitlement to FECA benefits.10 As such, the December 9,
2016 report is of no probative value and is found to be insufficient to establish appellant’s claim.11
Dr. Sanz, who treated appellant for a 2012 employment injury, submitted a report on
December 16, 2016 in which he described examination findings and noted an exacerbation of
preexisting neck and shoulder pain. He opined that appellant’s symptoms were causally related to
a motor vehicle accident. On April 24, 2017 Dr. Sanz advised that her symptoms were worsening
and that he felt the repetitive nature of appellant’s job, lifting heavy weights for eight hours daily
caused her chronic condition. On June 21, 2017 he advised that it appeared that appellant’s job
duties cause her constant symptoms, and in reports dated September 5, 2017 to April 16, 2018
repeated that he felt appellant’s job duties caused her chronic condition. The Board finds that
Dr. Sanz’s opinion on causal relationship was not supported by medical rationale, explaining the
nature of the relationship between the diagnosed conditions and appellant’s specific employment

7

M.C., Docket No. 18-0951 (issued January 7, 2019).

8

K.L., Docket No. 18-0937 (issued December 28, 2018).

9

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA).
10

See H.B., Docket No. 16-1753 (issued March 14, 2018).

11

See K.C., Docket No. 16-1181 (issued July 26, 2017).

6

factors.12 His initial December 16, 2016 report noted a motor vehicle accident, rather than
appellant’s accepted employment factors. As such it was not based upon a proper history of injury.
The Board has held that medical reports which are not based on a proper history of occupational
exposure are insufficient to establish a causal relationship between federal employment duties and
the diagnosed condition.13 In his subsequent reports, Dr. Sanz related that appellant’s repetitive
job duties caused her symptoms and chronic condition. The Board has previously held that
conclusory statements not fortified by medical rationale are insufficient to establish causal
relationship between employment factors and diagnosed conditions.14 As Dr. Sanz failed to
provide a well-reasoned opinion on causal relationship, his reports are insufficient to establish
appellant’s claim.15
Dr. Hyman couched his opinions in equivocal terms, noting only that the accepted
employment factors could be a cause of her diagnosed conditions. On February 7, 2018 he
indicated that appellant was required to lift 30 to 100 pounds of coins every 30 minutes every day
and indicated that she was totally disabled from work. Dr. Hyman maintained that appellant’s
repetitive work resulted in an overuse injury and that it was probable that this caused her neck and
shoulder symptoms which were exacerbated in January 2016, opining that this type of lifting could
cause both cervical disc bulging/herniation, shoulder tendinitis, and possible rotator cuff tearing.
As he couched his opinion in equivocal terms, it, too, is insufficient to meet appellant’s burden of
proof.16
Dr. Cuartas’ opinion is also insufficient to meet appellant’s burden of proof. While he
advised beginning in January 2017 that she was totally disabled and that her cervical and shoulder
objective findings were consistent with her history of injury, he did not sufficiently explain how
her work duties caused her disabling conditions. Without explaining how physiologically the
specific movements involved in appellant’s job caused or contributed to a diagnosed condition,
Dr. Cuervas’ opinion is of limited probative value and insufficient to establish causal
relationship.17
The record contains a February 14, 2017 MRI scan of the cervical spine. Diagnostic studies
however lack probative value on the issue of causal relationship as they do not address whether
the employment incident caused a diagnosed condition.18
Finally, the Board also notes that the record does not contain medical evidence of the
negative effect on her blood pressure. Therefore, the Board finds that appellant has not established
12

See D.B., Docket No. 18-1348 (issued January 4, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

13

See J.H., Docket No. 16-1094 (issued November 18, 2016).

14

See E.P., Docket No. 18-0194 (issued September 14, 2018).

15

Id.

16

D.B., supra note 12; M.V., Docket No. 18-1141 (issued January 3, 2019).

17

Id.

18

See T.C., Docket No. 18-1498 (issued February 13, 2019).

7

that she sustained a hypertensive condition which was caused or aggravated by factors of her
federal employment.19
As the record lacks rationalized medical evidence establishing causal relationship between
appellant’s accepted employment duties and her diagnosed conditions, she has not met her burden
of proof to establish her claim.20
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 appellant her burden of proof to establish
cervical, shoulder, and hypertensive conditions causally related to the accepted factors of her
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 19, 2019
Washington, DC

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

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

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

19

See supra note 8.

20

Supra note 8.

8