United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, BRENTWOOD POST
OFFICE, Brentwood, TN, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1501
Issued: July 27, 2021

Case Submitted on the Record

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

JURISDICTION
On August 11, 2020 appellant, through counsel, filed a timely appeal from a July 16, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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 his burden of proof to establish a lumbar condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On December 10, 2018 appellant, then a 39-year-old rural letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he developed lumbosacral spondylosis due
to factors of his federal employment, including repetitive motions involved in delivering mail. He
explained that, when he replicated the movements of servicing mailboxes, his pain would instantly
intensify. Appellant indicated that he first became aware of his condition on May 23, 2018 and
first realized that it was caused or aggravated by factors of his federal employment on
November 28, 2018. He stopped work on May 24, 2018.
In an August 29, 2014 medical report, Dr. David McCord, a Board-certified orthopedic
surgeon, evaluated appellant for low back pain. Appellant described an August 21, 2014
employment incident where he injured his back while leaning over in the back of his mail truck.3
On review of x-ray scans Dr. McCord noted degeneration at L4-5 and L5-S1 with a minor degree
of levoscoliosis. He opined that appellant’s injury was definitely an acute injury following years
of chronic low back pain.
In an August 14, 2015 diagnostic report, Dr. Barry Allen, a Board-certified radiologist,
performed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine, finding
hypolordosis of the lumbar spine. He diagnosed moderate-to-severe degenerative disc disease at
L4-5.
In an April 30, 2018 diagnostic report, Dr. Daniel Starnes, a Board-certified radiologist,
performed an MRI scan of appellant’s cervical, thoracic, and lumbar spine, finding degenerative
bone and disc changes in the cervical region with canal stenosis, localized myelomalcia and mild
degenerative bone and disc disease in the thoracic and lumbar region.
In a September 27, 2018 medical note, Dr. James Andry, a Board-certified neurologist,
indicated that he was treating appellant for lumbosacral spondylosis without myelopathy since
May 23, 2018. He noted that an electromyography (EMG) scan revealed no ongoing nerve
damage.
In an October 29, 2018 statement, appellant detailed his history of back pain beginning in
2016 where he was diagnosed with cervical spondylosis. Dr. Rudolph Glattes, a Board-certified
orthopedic surgeon, performed surgery on July 12, 2016 to treat his back condition. Appellant
underwent physical therapy and was released to return to work with no limitations on
January 30, 2017. He worked until November 2017 when he had a mild lumbar sprain. Appellant
began experiencing mild aggravation in his back while delivering his mail route in mid-April 2018
3

Appellant previously filed a Form CA-1 on March 17, 2015 for a lower back injury under OWCP File No.
xxxxxx863. On June 9, 2015 OWCP accepted his claim for a sprain of the lumbosacral joint. Appellant’s claims
have not been administratively combined.

2

into May. He alleged that he had been diagnosed with lumbosacral spondylosis and that his doctors
informed him that his condition was caused when the lumbar spine is affected by degenerative
changes. Appellant asserted that his repetitive motion and lifting worsened his condition and
caused pain, muscle spasms, numbness, tingling, and weakness causing falls. He also provided a
timeline of his doctor’s visits dating from June 2016 to October 26, 2018 and a list of his treating
physicians.
In a December 13, 2018 letter, the employing establishment controverted appellant’s claim,
offering that J.C., a postmaster, explained that appellant initially left the office after an argument
over an investigation interview concerning attendance and fraudulent scams in the office.
Appellant also noted that he was not working on May 23 or November 28, 2018, the dates where
he said he first became aware of his condition and first realized it was caused or aggravated by his
federal employment, respectively.
In a development letter dated December 19, 2018, OWCP referenced appellant’s five
previous claims for lower back pain.4 It provided a questionnaire for his completion to establish
the employment factors alleged to have caused or contributed to his medical condition and
requested a medical report from his attending physician explaining how and why his federal work
activities caused, contributed to, or aggravated his medical condition. OWCP afforded appellant
30 days to submit the requested information.
In an April 25, 2018 diagnostic report, Dr. Brent Roach, a Board-certified diagnostic
radiologist, performed an x-ray scan of appellant’s lumbar spine, which revealed minimal
levoconvex curvature at the thoracolumbar junction with slight chronic appearing anterior wedging
at the T12 vertebral body. In a diagnostic report of even date, Dr. Martin Jordanov, a Boardcertified radiologist, performed an x-ray scan of appellant’s cervical spine, finding normal
alignment.
Appellant submitted a calendar with entries dating from July to November 2018 providing
dates and times in which he was scheduled for physical therapy.
In a January 2, 2019 medical note, Dr. Andry diagnosed lumbar spine disc disease and
opined that, based on his medical opinion, the degenerative changes at L4-5 could have been the
result of repeated heavy lifting. Based on a description of appellant’s work duties, he explained
that these activities would be adequate to contribute to the changes seen on his MRI scan.
Dr. Andry opined that continued and repeated heavy lifting would contribute to the progression of
appellant’s condition.

4

The Board notes that appellant has a number of prior claims. On April 29, 2008 appellant filed a claim for an
April 28, 2008 traumatic injury for a back injury. OWCP processed the claim as a short form closure under OWCP
File No. xxxxxx735. On August 21, 2014 appellant filed a claim for an August 21, 2014 traumatic injury for a lower
back slipped disc under OWCP File No. xxxxxx981. It formally denied appellant’s traumatic injury claim on
September 29, 2014. On March 17, 2015 appellant filed a claim for a lower back injury under OWCP File No.
xxxxxx863. On June 9, 2015 OWCP accepted his claim for a sprain of the lumbosacral joint. On November 25, 2017
appellant filed a claim for a November 25, 2017 traumatic injury for low back pain. OWCP processed the claim as a
short-form closure under OWCP File No. xxxxxx286.

3

In a January 14, 2019 response to OWCP’s development questionnaire, appellant
explained that his condition was caused by the repetitive bending and lifting he performed as daily
functions of his job. He reasoned that the employing establishment’s statement that he had not
reported an injury before was false and stated that a letter from his doctor would explain how his
diagnosed condition was causally related to his federal employment. Appellant specifically
described his employment activities as the repetitive functions of bending at the waist, twisting
and stretching to reach mailboxes while driving his mail carrier in a seated position. He also noted
that he lifted buckets of mail to carry to his next destination. Appellant drove his mail carrier on
average two and a half to three hours a day and lifted mail buckets on average of 45 minutes to an
hour a day.
By decision dated January 25, 2019, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed lumbar
condition was causally related to the accepted factors of his federal employment.
On January 21, 2020 appellant, through counsel, requested reconsideration of OWCP’s
January 25, 2019 decision. Counsel contended that the newly attached medical evidence would
be sufficient to establish causal relationship between the appellant’s diagnosed medical condition
and the accepted factors of his federal employment.
In a May 8, 2019 medical report, Corinne Grgas, a nurse practitioner, diagnosed lumbar
pain and arthritic-like pain. She ordered multiple diagnostic studies of appellant’s lumbar spine.
In a June 5, 2019 diagnostic report, Dr. Carol Ashman, a Board-certified radiologist,
performed an MRI scan of appellant’s lumbar spine, which demonstrated an L4-5 mild disc bulge
with posterior annular fissure resulting in moderate central canal stenosis and mild-to-moderate
benign chronic anterior compression deformity of the T12 vertebral body.
Dr. Glattes, in a June 6, 2019 report, diagnosed cervical pain, stiffness in the neck and back,
lumbar facet syndrome, lumbar radiculopathy and lumbar stenosis with neurogenic claudication.
He provided work restrictions for appellant to follow.
In an August 13, 2019 medical note, Dr. Andry recounted his treatment of appellant
regarding his low back pain. He explained that based on a review of diagnostic testing and
appellant’s employment duties he could not attribute any nerve damage to his injury. Dr. Andry
noted that, as a neurologist, he did not have expertise in the management of degenerative changes
of the spine, but stated that it was widely known that long-standing strains, such as the one
mentioned in appellant’s job duties, can cause the injuries demonstrated in his MRI scans. He
recommended the expertise of an occupational medicine physician for further evaluation.
By decision dated April 2, 2020, OWCP denied modification of its January 25, 2019
decision.
On May 4, 2020 appellant, through counsel, requested reconsideration of OWCP’s April 2,
2020 decision. Counsel recounted the history of appellant’s injury and his subsequent medical
treatment. He argued that new medical evidence from Dr. John Ellis, Board-certified in internal
medicine, would be sufficient to establish appellant’s claim.

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Appellant submitted medical reports dated from May 10 to July 6, 2016 in which
Dr. Charlton Woosley, a chiropractor, treated appellant for low back pain related to his diagnoses
of lumbar radiculopathy, other intervertebral disc displacement, cervicocranial syndrome and
sacroiliitis.
In a January 28, 2020 narrative medical report, Dr. Ellis reviewed the history of appellant’s
injury dating back to 2008 in which he began to experience pain in his low back while lifting and
getting in and out of his long-life vehicle (LLV) at work. He referenced employment incidents
dated from August 21, 2014 to November 25, 2017, as well as a July 14, 2016 cervical fusion
procedure appellant underwent to treat his related conditions. Dr. Ellis then discussed his most
recent complaints of back pain beginning in April 2018 related to lifting trays of mail and
magazines and his subsequent medical treatment. On review of appellant’s medical records and
diagnostic reports, he diagnosed a lumbosacral strain, lumbar disc derangement, lumbar
spondylosis (arthritis), bilateral L4, 5 and S1 spinal nerve impingement and depression secondary
to chronic pain. Dr. Ellis opined that his diagnoses arose out of and in the course of employment
and that his employment factors contributed to, aggravated and/or caused his conditions. He
explained that lifting trays and driving the LLV required a lot of bending and rotating of the lower
spine that caused multiple sprains and strains of appellant’s spine. Dr. Ellis differentiated the
present claim by reasoning that the injury was cumulative trauma that became so severe that
appellant could no longer continue working. He indicated that the evidence of annular tears were
consistent with abnormal stresses on the lower lumbar vertebrae, causing increased pressure on
the discs and tears. Dr. Ellis noted that appellant’s repetitive duties caused his spinal cord
impingement, which made him more prone to injuries in his lower lumbar spine, iliolumbar and
sacroiliac ligaments and intervertebral discs. He recommended that appellant undergo an EMG
scan for further evaluation and placed him on temporarily total disability from June 12, 2018
through the present.
By decision dated July 16, 2020, OWCP denied modification of its April 2, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

5

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

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

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To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted multiple medical reports in which his treating
physicians noted his previous lower back injuries and observed his federal employment duties that
required him to perform repetitive lifting, bending, twisting, and stretching activities. Specifically,
Dr. Ellis’ January 28, 2020 narrative medical report provided that lifting trays and driving the LLV
required a lot of bending and rotating of the lower spine that caused cumulative trauma to
appellant’s spine in addition to his previous injuries.
The Board finds that Dr. Ellis provided an affirmative and rationalized opinion on causal
relationship in his January 28, 2020 narrative medical report. In his report, Dr. Ellis recounted
appellant’s history of low back pain as it related to his employment duties and his previous
employment injuries. On examination he diagnosed a lumbosacral strain, lumbar disc
derangement, lumbar spondylosis (arthritis), bilateral L4, 5 and S1 spinal nerve impingement and
depression secondary to chronic pain and opined that appellant’s repetitive employment duties
contributed, aggravated and/or caused his medical conditions. Dr. Ellis explained that lifting trays
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

Id.; Victor J. Woodhams, supra note 8.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

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and driving an LLV required a lot of bending and rotating of the lower spine that caused multiple
sprains and strains of appellant’s spine. He differentiated the present claim from his previous
claims by reasoning that the injury was cumulative trauma that became so severe that appellant
could no longer continue working. Dr. Ellis stated that the evidence of annular tears were
consistent with abnormal stresses on the lower lumbar vertebrae, causing increased pressure on
the discs and tears. He noted that appellant’s repetitive duties caused his spinal cord impingement,
which made him more prone to injuries in his lower lumbar spine, iliolumbar, and sacroiliac
ligaments and intervertebral discs.
Dr. Ellis identified the employment factor, which appellant consistently claimed had
precipitated his lumbar conditions, identified physical findings upon examination and treatment,
and provided a rationalized opinion citing to the facts of the case. Thus, the Board finds that
Dr. Ellis’ opinion is sufficient to require further development of the record.13
It is well established that proceedings under FECA are not adversarial in nature and that,
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14 OWCP has an obligation to see that justice is
done.15
OWCP previously accepted on June 9, 2015 that appellant sustained a sprain of the
lumbosacral joint as the result of a March 17, 2015 employment incident under OWCP File No.
xxxxxx863. It also processed two additional claims for lower back injuries as short form closures
under OWCP File Nos. xxxxxx735 and xxxxxx286, respectively. On December 10, 2018
appellant filed the current claim for lumbosacral spondylosis caused by his repetitive duties as a
rural letter carrier. OWCP’s procedures provide that cases should be administratively combined
when correct adjudication of the issues depends on frequent cross-referencing between files.16 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition of the same part of the body, doubling is required. 17 OWCP had previously
accepted that appellant had sustained a sprain of the lumbosacral joint under OWCP File No.
xxxxxx863 and processed additional claims as short form closures under OWCP File Nos.
xxxxxx735 and xxxxxx286; however, these cases have not been administratively combined with

13
D.H., Docket No. 19-0633 (issued January 8, 2020); J.J., Docket No. 19-0789 (issued November 22, 2019); J.G.,
Docket No. 17-1062 (issued February 13, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J.
Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
14
A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
15

R.B., Docket No. 18-0162 (issued July 24, 2019); K.P., Docket No. 18-0041 (issued May 24, 2019).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); D.M., Docket No. 19-0340 (issued October 22, 2019).
17

Id.; D.T., Docket No. 19-1375 (issued March 24, 2020); D.L., Docket No. 17-1588 (issued January 28, 2019).

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the present file. The case must be remanded to OWCP to administratively combine OWCP File
Nos. xxxxxx863, xxxxxx735, xxxxxx286 and the present case file.18
On remand OWCP shall administratively combine the files and refer appellant, a statement
of accepted facts, and the medical evidence of record to a physician in the appropriate field of
medicine. The chosen physician shall provide a rationalized opinion addressing whether the
diagnosed lumbar conditions are causally related to the accepted factors of appellant’s federal
employment. If the physician opines that the diagnosed conditions are not causally related, he or
she must provide rationale explaining how or why the opinion differs from that of Dr. Ellis.
Following this and any other further development as may be deemed necessary, OWCP shall issue
a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

18

K.T., Docket No. 17-0432 (issued August 17, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the July 16, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 27, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-2164
Issued: June 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 21, 2007 appellant, through counsel, filed a timely appeal from an August 6,
2007 decision of the Office of Workers’ Compensation Programs denying an increased schedule
award for his right upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 20 percent impairment of the right upper
extremity, for which he received a schedule award. On appeal, his counsel contends that there is
an unresolved conflict in the medical opinion evidence.
FACTUAL HISTORY
On January 21, 1998 appellant, then a 46-year-old maintenance mechanic, filed a
traumatic injury claim alleging that he dislocated his right shoulder, bruised his right leg and shin
and bruised the left side of his face on that date when a dumpster he was loading fell over. The

Office accepted the claim for fractured right shoulder humerus, left shoulder overuse syndrome
and right leg tibia sprain and authorized right shoulder arthroscopy, which was performed on
February 24, 1999. Appellant stopped work on January 21, 1998 and was placed on the periodic
rolls for temporary total disability. The Office subsequently expanded his claim to include the
condition of right brachial plexopathy.1
On July 17, 2003 Dr. Nicholas P. Diamond, an examining Board-certified osteopathic
physician specializing in pain management, diagnosed multiple levels cervical spinal
stenosis/spondylosis with C5-6 degeneration, status post C5-6 anterior cervical discectomy and
fusion, post-traumatic glenoid shoulder labral tear, status post arthroscopy and “derivative
aggravation of left shoulder superimposed over old pathology due to overuse of compensatory
situation.” A physical examination revealed periscapular tenderness and pain with range of
motion. Range of motion for the right shoulder included 90 degrees of forward elevation,
90 degrees of abduction, 55 degrees of cross-over adduction and 90 degrees of external rotation.
Using a Jamar Hand Dynameter, Dr. Diamond found that appellant had 20 kilograms of force
strength for the right hand at Level 3. For the right upper extremity, he found that appellant had
a 20 percent impairment under Tables 16-32 and 16-34 on page 509 of the fifth edition American
Medical Association, Guides to the Evaluation of Permanent Impairment2 for grip strength
deficit; a six percent impairment under Figure 16-40, page 476 for right shoulder flexion, a four
percent impairment under Figure 16-43, page 477 for decreased abduction and a three percent
impairment under Figure 18-1 on page 574 for pain. Dr. Diamond concluded that appellant had
an 31 percent impairment of his right upper extremity using the Combined Values Chart. He
combined the 6 and 4 percent values to equal 10 percent, then adding the 20 percent to equal
28 percent and then adding the 3 percent value. Dr. Diamond indicated that appellant reached
maximum medical improvement on July 17, 2003.
On October 27, 2003 appellant filed a claim for a schedule award.
On November 6, 2003 the Office medical adviser concluded that appellant had a
22 percent impairment of the right upper extremity and a 5 percent impairment of the left upper
extremity. Using the A.M.A., Guides (5th ed. 2001), the Office medical adviser found that
appellant had a 6 percent impairment for 90 degrees elevation, 4 percent impairment for
90 abduction, a 10 percent impairment for decreased grip and 3 percent impairment for pain.
By decision dated August 31, 2004, the Office granted a schedule award for a 22 percent
impairment of the right upper extremity.
The award ran from July 17, 2003 to
November 8, 2004 for 68.64 weeks.
On September 7, 2004 appellant’s counsel requested a hearing before an Office hearing
representative.

1

On August 4, 2000 the Office of Personnel Management approved appellant’s application for a disability
retirement. On April 30, 2003 appellant elected to receive retirement benefits from the Office of Personnel
Management effective May 31, 2003.
2

Hereinafter A.M.A., Guides.

2

In an October 15, 2004 addendum report, Dr. Diamond noted that his agreement with the
Office medical adviser regarding the range of motion determination. However, he disagreed
with the Office medical adviser on the grip strength deficit. In support of his opinion,
Dr. Diamond stated:
“I have used the formula as per Table 16-32 and 16-34 on page 509. According
to Table 16-32 on page 509 it is noted that a 51[-]year-old male grip strength in
the dominant side should be 45.9; 45.9 minus 20 divided by 45.9 would then
equate to a 20 [percent] upper extremity impairment secondary to grip strength
deficit.”
By decision dated May 31, 2005, the Office hearing representative found that
Dr. Diamond’s supplemental report was sufficient to warrant further development. She set aside
the October 15, 2004 decision and remanded the case for further development.
On September 15, 2005 the Office medical adviser opined: “[t]here is some rationale for
Dr. Diamond’s use of the ‘Normal Grip Strength’ tables for different age groups.” The Office
medical adviser stated that he believed “the 10 percent grip strength on the r[igh]t is accurate.”
By decision dated September 29, 2005, the Office denied appellant’s request for an
additional schedule award.
By letter dated October 4, 2005, appellant’s counsel requested an oral hearing before an
Office hearing representative, which was held on February 8, 2006.
In a decision dated March 28, 2006, the Office hearing representative affirmed the denial
of appellant’s request for an increased schedule award. The Office hearing representative found
that the Office medical adviser’s opinion constituted the weight of the evidence. He also rejected
appellant’s contention that the Office erred in failing to include his cervical surgery when
calculating the upper extremity impairment as the surgery was neither employment related nor
authorized by the Office.
Appellant disagreed with the March 28, 2006 decision and filed an appeal with the Board.
On June 27, 2007 the Board set aside and remanded the case as the record on appeal was
incomplete.3
By decision dated August 6, 2007, the Office denied appellant’s request for an increased
schedule award for his right upper extremity.4

3

Docket No. 06-2091 (issued June 27, 2007).

4

The Board notes the Office the record contains no final decision by the Office on appellant’s left upper
extremity impairment.

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LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act5 and section 10.404 of
the implementing federal regulations,6 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides7 has been adopted by the implementing regulation as the appropriate standard
for evaluating schedule losses.8
Proceedings under the Act are not adversary in nature, nor is the Office a disinterested
arbiter.9 While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.10 Accordingly, once the Office undertakes to develop the medical evidence further, it
has the responsibility to do so in the proper manner.11
ANALYSIS
The Office accepted that appellant sustained fractured right shoulder humerus, left
shoulder overuse syndrome and right leg tibia sprain and right brachial plexopathy. He received
a schedule award for a 22 percent impairment of his right upper extremity.
On November 6, 2003 an Office medical adviser calculated that appellant had a 22
percent impairment of his right upper extremity. The Office granted a schedule award based on
the impairment rating of the Office medical adviser. The Board finds, however, that this rating is
of diminished probative value because it was not derived in accordance with the A.M.A.,
Guides.12
The Office medical adviser determined that appellant was entitled to a 10 percent
impairment rating for right grip strength deficit, but did not reference the applicable tables he

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

8

20 C.F.R. § 10.404.

9

Rebecca O. Bolte, 57 ECAB 687 (2006).

10

William B. Webb, 56 ECAB 156 (2004); Russell F. Polhemus, 32 ECAB 1066 (1981).

11

Peter C. Belking, 56 ECAB 580 (2005); see Robert F. Hart, 36 ECAB 186 (1984).

12

See Carl J. Cleary, 57 ECAB 563 (2006); James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an
opinion which is not based upon the standards adopted by the Office and approved by the Board as appropriate for
evaluating schedule losses is of little probative value in determining the extent of a claimant’s impairment).

4

was utilized in his rating.13 The A.M.A., Guides provides that a strength evaluation under these
tables should only be included in the calculation of an upper extremity impairment if such a
deficit has not been considered adequately by other impairment rating methods.14 The Office
medical adviser provided no explanation of why the identified strength impairment in this case
could not be adequately considered by the other impairment rating methods for the upper
extremity. Therefore, he has not properly assessed appellant’s strength deficits under the
A.M.A., Guides. For this reason, it was not appropriate to base the granting of appellant’s
schedule award on the opinion of the Office medical adviser.
The record also contains a July 17, 2003 report in which Dr. Diamond, an examining
physician, determined that appellant had a 31 percent impairment of his right upper extremity
and a 4 percent impairment of his left upper extremity. However, his impairment rating is of
diminished probative value because it was not derived in accordance with the A.M.A., Guides.
Dr. Diamond found that appellant had 20 percent impairment under Tables 16-32 and 16-34 of
the A.M.A., Guides for right grip strength deficit. However, he did not provide any explanation
of why the identified strength impairment could not be adequately considered by the other
impairment rating methods.
As noted above, once the Office undertakes to develop the medical evidence further, it
has the responsibility to do so in the proper manner.15 Appellant’s impairment has not been
adequately evaluated in accordance with the relevant standards of the A.M.A., Guides. The case
will be remanded to the Office for further development of the medical evidence. After such
further development as the Office deems necessary, it should issue an appropriate decision
regarding appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

See A.M.A., Guides 509, Tables 16-32 and 16-34.

14

The A.M.A., Guides provides that an example of an impairment that would not be adequately considered by
other rating methods would be loss of strength caused by a severe muscle tear that healed leaving a palpable muscle
defect. If the rating physician determines that loss of strength should be rated separately in an extremity that
presents other impairments, the impairment due to loss of strength could be combined with the other impairments,
only if based on unrelated etiologic or pathomechanical causes. Otherwise, the impairment ratings based on
objective anatomic findings take precedence. (Emphasis in the original.) The A.M.A., Guides further provides that
decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities or absence of
parts that prevent effective application of maximum force. A.M.A., Guides 508, section 16.8a. See also FECA
Bulletin No. 01-05 (issued January 29, 2001) regarding the limited use of grip strength to measure weakness.
15

See supra notes 9 and 10 and accompanying text.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 6, 2007 is set aside and the case remanded to the Office
for further proceedings consistent with this decision of the Board.
Issued: June 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Capitol Heights, MD, Employer
__________________________________________

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

Docket No. 21-1146
Issued: January 31, 2022

Case Submitted on the Record

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

JURISDICTION
On July 20, 2021 appellant filed a timely appeal from a February 26, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated February 14, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal and following the February 26, 2021
decision. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On September 17, 2000 appellant, then a 53-year-old small package and bundle sorter
clerk, filed a traumatic injury claim (Form CA-1) alleging that on March 27, 2000 he sustained
pain in his right elbow and left hand as a result of repetitive keying and moving mail while in the
performance of duty. He stopped work on August 23, 2000. OWCP converted the claim to an
occupational disease claim and accepted it for right medial epicondylitis, villonodular synovitis of
the left hand, bilateral tenosynovitis of the hands and wrists, and bilateral carpal tunnel syndrome.
It paid appellant wage-loss compensation for intermittent disability from work from May 2007 to
September 2016. Appellant returned to modified duty on December 11, 2016.
On September 18, 2018 appellant filed claims for compensation (Form CA-7) for
intermittent disability from work during the period May 28, 2013 through April 20, 2018.
In a development letter dated November 6, 2018, OWCP requested that appellant provide
medical evidence establishing that he was disabled from work due to intermittent disability during
the period May 28, 2013 through April 20, 2018. It afforded him 30 days to submit the necessary
evidence.
On November 30, 2018 Dr. Eric G. Dawson, an orthopedic surgeon, diagnosed rotator cuff
tendinitis with secondary degenerative changes.
By decision dated January 18, 2019, OWCP denied appellant’s claim for wage-loss
compensation due to intermittent disability during the period May 28, 2013 through
April 20, 2018.
Thereafter, OWCP received a report dated November 28, 2018 from Dr. Daniel R. Ignacio,
a Board-certified physiatrist, who diagnosed chronic lumbar sprain with neuritis, chronic lumbar
disc displacement with radiculopathy, chronic bilateral knee chondromalacia and sprain, chronic
pelvic syndrome, and chronic pain syndrome. Dr. Ignacio found that appellant should continue
working limited duty. He advised that appellant had been unable to work from May 15 to 26,
June 6 to 21 and June 24 to 28, and July 1 to 31, 2013, March 14 to 22, March 29 to May 5, and
November 29 to December 15, 2017. In a handwritten addendum dated March 7, 2019,
Dr. Ignacio opined that appellant was disabled from work for the periods May 22, 2013, October 3
to November 3, 2017, and March 29 to April 20, 2018.
On November 19, 2019 OWCP received CA-7 forms from appellant dated September 18,
2018 claiming wage-loss compensation due to disability from employment for the periods May 15
to 26, 2013 and October 3 to November 3, 2017.
On November 19, 2019 appellant requested reconsideration. He asserted that he had
previously submitted medical evidence supporting the claimed periods of disability. Appellant
2

further noted that OWCP had omitted two periods from consideration in the January 18, 2019
denial decision, May 15 to 26, 2013 and October 3 through November 3, 2017.
By decision dated February 14, 2020, OWCP vacated in part and affirmed in part its
January 18, 2019 decision. It determined that appellant had established entitlement to
compensation for total disability for the periods May 28, June 6 to 21, June 24 to 28, July 1 to 31,
2013, and March 14 to 22 and November 29 to December 15, 2017. OWCP further found,
however, that he had not established entitlement to wage-loss compensation due to disability for
the periods March 29 to May 5, 2017 and March 29 to April 20, 2018.
OWCP subsequently received physical therapy reports, duty status reports (Form CA-17),
and medical reports dated February 2020 through February 2021 regarding appellant’s current
condition.
On February 19, 2021 appellant requested reconsideration. In a February 1, 2021
statement, he again asserted that OWCP had failed to adjudicate his claim for wage-loss
compensation due to disability from May 15 to 26, 2013 and October 3 to November 3, 2017.
Appellant indicated that he was resubmitting the November 28, 2018 report from Dr. Ignacio in
support of his claim.
By decision dated February 26, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 4 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).5
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 6
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 7 It’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
3

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).

6

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
7

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).

3

claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.8 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. 10 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidenc e could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.11
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.12 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP. 13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, as it was untimely filed and failed to demonstrate clear evidence of error.
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 14 As appellant’s request for reconsideration was not received
until February 19, 2021, more than one year after the issuance of OWCP’s last merit decision dated

8

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (September 2020).
9

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

10

S.C., Docket No. 18-0126 (issued May 14, 2016).

11

C.M., Docket No. 19-1211 (issued August 5, 2020).

12

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (September 2020).

13

D.S., Docket No. 17-0407 (issued May 24, 2017).

14

20 C.F.R. § 10.607(a).

4

February 14, 2020, it was untimely filed. Consequently, he must demonstrate clear evidence of
error by OWCP in its February 14, 2020 decision. 15
The underlying issue is whether OWCP properly denied appellant’s claim for wage-loss
compensation for intermittent disability from work for the periods March 29 to May 5, 2017 and
March 29 to April 20, 2018. On reconsideration, appellant asserted that OWCP failed to
adjudicate his claim for wage-loss compensation for the periods May 15 to 26, 2013 and October 3
to November 3, 2017. He submitted medical evidence regarding his current condition dated
February 2020 through February 2021. As previously noted, to demonstrate clear evidence of
error, a claimant must submit evidence relevant to the issue which was decided by OWCP. 16 This
evidence, however, is irrelevant to the underlying issue as it does not address whether the appellant
was disabled during the claimed periods of March 29 to May 5, 2017 and March 29 to
April 20, 2018.17 Thus, appellant has failed to demonstrate clear evidence of error.
On appeal, appellant asserts that his request for reconsideration was timely filed as
demonstrated by a February 2, 2021 certified mail receipt showing delivery to OWCP on
February 8, 2021. As explained above, timeliness is determined by the received date in iFECS.
As the reconsideration was received on February 19, 2021, it was untimely.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evide nce of
error.

15

20 C.F.R. § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

16

A.A., Docket No. 19-1219 (issued December 10, 2019); Dean D. Beets, 43 ECAB 1153 (1992).

17

Id.

18

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 31, 2022
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
U.S. POSTAL SERVICE, PRIORITY MAIL
PROCESSING CENTER, Miami, FL, Employer
__________________________________________

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

Docket No. 17-1219
Issued: October 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 5, 2017 appellant filed a timely appeal from a February 23, 2017 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 24, 2017.
FACTUAL HISTORY
On July 16, 2003 appellant, then a 52-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that her employment duties caused lower back pain. She had
stopped work on July 9, 2003. OWCP accepted bulging disc at L1-2. Appellant accepted a
1

5 U.S.C. § 8101 et seq.

modified-duty employment position on July 28, 2003 and claimed intermittent compensation
thereafter. In a July 29, 2004 decision, OWCP denied her claim for intermittent compensation
for the period August 10, 2003 to May 14, 2004. Appellant continued modified duty.
In reports dated March 18 to April 19, 2004, Dr. Jon D. Donshik, a Board-certified
orthopedic surgeon, noted appellant’s history of employment-related back pain. He provided
findings and diagnosed neuroforaminal stenosis at multiple levels, probably due to loss of disc
space heights. Dr. Donshik indicated that electrodiagnostic testing of the lower extremities was
normal. On May 25, 2004 he noted that he explained to appellant that her complaints and
symptoms were out of proportion to objective findings, and that he would see her in follow up as
needed. On August 17, 2004 Dr. Donshik advised that appellant was working full duty, but
continued to complain of lower extremity pain.2
In May 2005, appellant began treatment with Dr. Lance J. Lehmann, Board-certified in
anesthesiology and pain medicine. Dr. Lehmann provided treatment on a monthly basis
including epidural steroid injections to the lumbar spine.
On November 6, 2009 appellant filed a recurrence of disability claim (Form CA-2a),
alleging that the recurrence occurred on October 28, 2009 when she stopped work. OWCP
accepted the recurrence of total disability and appellant received wage-loss compensation and
was thereafter placed on the periodic compensation rolls in January 2010. Appellant did not
return to work.
In April 2010, appellant was referred to James S. Sullivan, a rehabilitation counselor for
vocational rehabilitation services.3 Mr. Sullivan prepared labor market surveys for the positions
of secretary, receptionist, and administrative assistant.
Dr. Lehmann continued to treat appellant on a monthly basis.
In October 2010, OWCP referred appellant to Dr. Brad K. Cohen, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In an October 7, 2010 report, Dr. Cohen
diagnosed work-related L1-2 annular disc bulging, chronic back pain, multilevel lumbar
degenerative disease with neural foraminal stenosis and lower extremity radiculopathy, and
obesity. He advised that the accepted L1-2 bulging disc had resolved without residuals and that
appellant’s continued symptoms were secondary to nonemployment-related multilevel lumbar
degenerative changes, and that she had no employment-related restrictions. In an attached work
capacity evaluation (Form OWCP 5c) he advised that appellant could not return to her regular
job and provided permanent restrictions that were due to her lumbar degenerative disc disease.

2

In May 2004, OWCP referred appellant to Dr. Ismael Montane, a Board-certified orthopedic surgeon, for a
second opinion evaluation. In a July 1, 2004 report, Dr. Montane noted that appellant had no lumbar radiculopathy
and could return to her usual job.
3

In an August 11, 2010 decision, OWCP notified appellant that her compensation had been suspended as of
August 1, 2010 because she failed to submit a requested EN1032 form. The form was submitted on August 20,
2010 and wage-loss compensation was resumed.

2

On October 22, 2010 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits. It found that the weight of the medical opinion evidence rested with the
opinion of Dr. Cohen who advised that appellant’s work-related condition had resolved and that
she had no residuals or disability due to the employment injury.
On November 2, 2010 Dr. Lehman noted appellant’s complaint of back and bilateral leg
pain. He diagnosed herniated discs from L1-2 through L5-S1 and described appellant’s
treatment. Dr. Lehmann advised that appellant could perform light-duty work.
OWCP determined that a conflict in medical evidence had been created between the
opinions of Dr. Lehmann and Dr. Cohen regarding whether the accepted condition had resolved
and appellant’s work capabilities. It then referred appellant to Dr. Kenneth I. Jarolem, Boardcertified in orthopedic surgery, for an impartial evaluation.
In a January 28, 2011 report, Dr. Jarolem diagnosed persistent complaints of lower back
and radiating leg pain and degenerative scoliosis. He opined that the work injury did not cause
appellant’s objective radiographic findings which were clearly a degenerative progress, but that
appellant’s work activities permanently aggravated the accepted condition at L1-2 which had not
resolved. Dr. Jarolem opined that appellant’s prolonged disability was due to her substantial
degenerative condition, but that she did have continued pain due to the employment injury and;
therefore, she could not return to the mail handler position, but was capable of work. On an
attached work capacity evaluation form, Dr. Jarolem advised that appellant had permanent
restrictions of no twisting, bending, stooping, squatting, or kneeling, with a 10-pound restriction
on pushing, pulling, and lifting.
In a supplemental report dated May 18, 2011, Dr. Jarolem noted that he had reviewed a
May 16, 2011 lumbar spine magnetic resonance imaging (MRI) scan.4 He opined that, based on
his review of the MRI scan, there were no changes to his previous opinion.
On July 5, 2011 OWCP proposed to reduce appellant’s compensation based on her
capacity to earn wages as a secretary, a sedentary position.
Dr. Lehmann continued to submit monthly reports describing appellant’s treatment.
By decision dated September 1, 2011, OWCP reduced appellant’s wage-loss
compensation based on her capacity to earn wages as a secretary, effective July 5, 2011. It
utilized the Shadrick formula5 and found that appellant had a 51 percent loss of wage-earning
capacity.
Appellant continued monthly treatment with Dr. Lehmann, including epidural injections.
In August 2016, OWCP referred appellant to Dr. Donshik for a second opinion
evaluation. In an August 30, 2016 report, Dr. Donshik noted the history of injury, appellant’s
complaint of back and knee pain, and his review of the medical record. Lumbar x-rays that day
4

A copy of the MRI scan report is not found in the record.

5

Albert C. Shadrick, 5 ECAB 376 (1953). See discussion infra.

3

showed curvature and lumbar spondylosis. Pelvis x-ray demonstrated no evidence of hip or
pelvic fracture or osteoarthritis. Examination of the cervical spine demonstrated full range of
motion. Appellant complained of diffuse lower lumbar spine pain on thoracolumbar spine
examination which showed no palpable spasm. She could bend and touch her toes with some
knee flexion. Straight leg raising and femoral stretch tests were negative. Bilateral lower
extremities revealed no gross evidence of sensory or motor deficit. Dr. Donshik advised that the
work injury had resolved, noting that disc bulging typically did not cause back pain. He opined
that appellant had degenerative scoliosis and lumbar spondylosis which more likely caused her
back pain. Dr. Donshik concluded that, while appellant could not return to a mail handler
position, this was due to her age and not because she was injured at work.
In a November 1, 2016 report, Dr. Lehmann reiterated his previous findings and
conclusions.
On November 30, 2016 OWCP proposed to terminate appellant’s wage-loss and medical
benefits. It found that the weight of the medical opinion evidence rested with the opinion of
Dr. Donshik who advised that appellant’s work-related condition had resolved and that she had
no residuals or disability due to the employment injury.
Appellant thereafter submitted a December 14, 2016 report in which Dr. Lehmann noted
a chief complaint of back and upper leg pain. Dr. Lehmann diagnosed lumbar herniated discs
and facet syndrome. He noted that appellant ambulated with minimal difficulty and could
function and do most of her daily activities, but was limited with prolonged standing or walking.
He noted that he had reviewed the proposed termination which was based on an August 2016
report that deemed that her work-related injury had resolved and her findings have progressed to
chronic changes in the lumbar spine. Dr. Lehmann indicated that appellant’s treatment would
continue and she needed to check with OWCP to find out how her insurance would transition to
Medicare since her workers’ compensation case had now resolved.6
By decision dated February 23, 2017, OWCP terminated appellant’s wage-loss and
medical benefits, effective February 24, 2017. It noted that Dr. Lehmann did not dispute
Dr. Donshik’s findings and found that the weight of the medical evidence established that the
accepted L1-2 annular bulging disc had resolved with no residuals and that appellant had no
disability due to the employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7

6

Dr. Lehmann also provided a procedure note for an epidural injection on November 4, 2016.

7

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

4

OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8
ANALYSIS
OWCP accepted appellant’s occupational disease claim for bulging annular disc at L1-2.
It terminated her wage-loss compensation and medical benefits on February 24, 2017, based on
the opinion of Dr. Donshik, an OWCP referral physician.
The medical evidence relevant to the March 17, 2015 termination includes Dr. Donshik’s
comprehensive August 30, 2016 report. Dr. Donshik noted the history of injury, appellant’s
complaint of back and knee pain, and his review of the medical record. He thoroughly described
his examination findings, noting that appellant had no palpable spasm on thoracolumbar spine
examination. Although she complained of back pain, appellant could bend and touch her toes
with some knee flexion. Straight leg raising and femoral stretch tests were negative. Bilateral
lower extremities revealed no gross evidence of sensory or motor deficit. Dr. Donshik advised
that the work injury had resolved, noting that disc bulging typically did not cause back pain and
that appellant had degenerative scoliosis and lumbar spondylosis which more likely caused her
back pain. He concluded that, while appellant could not return to a mail handler position, this
was due to her age and not because she was injured at work.
Dr. Lehmann, appellant’s attending pain management specialist, noted on December 14,
2016 a chief complaint of back and upper leg pain and diagnosed lumbar herniated discs and
facet syndrome, neither of which are accepted conditions. He reported that appellant ambulated
with minimal difficulty and could function and do most of her daily activities, but was limited
with prolonged standing or walking. Dr. Donshik indicated that he reviewed the proposed
termination which was based on an August 2016 report that deemed that her work-related injury
had resolved and her findings had progressed to chronic changes in the lumbar spine. He
indicated that appellant’s treatment would continue, but she needed to find out how her insurance
would transition to Medicare since her workers’ compensation case had now resolved.
Dr. Lehmann did not dispute Dr. Donshik’s conclusion. His opinion is certainly
insufficient to establish a conflict in medical evidence. Dr. Donshik provided a well-rationalized
opinion explaining that appellant’s employment-related condition had resolved and that she had
no employment-related disability. It, thus, represents the weight of the medical evidence at the
time OWCP terminated benefits. OWCP properly relied on Dr. Donshik’s report in terminating
appellant’s wage-loss compensation and medical benefits. Dr. Donshik had full knowledge of
the relevant facts and evaluated the course of appellant’s accepted conditions. His opinion was
based on proper factual and medical history and his report contained a detailed summary of this
history. Dr. Donshik addressed the medical record and made his own examination findings to
reach a reasoned conclusion regarding appellant’s conditions.9 He found no basis on which to
8

Id.

9

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).

5

attribute any residuals or continued disability to appellant’s accepted condition of exacerbation
of preexisting herniated lumbar disc. Dr. Donshik’s opinion is found to be probative evidence
and reliable, and sufficient to justify OWCP’s termination of benefits for the accepted
condition.10
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 24, 2017.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Jaja K. Asaramo, supra note 7.

6


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

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

Docket No. 21-1357
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 14, 2021 appellant filed a timely appeal from a May 19, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 5, 2021 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 18, 2019 appellant, then a 57-year-old scheduling officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2019 she experienced an asthma attack
when exposed to dust while in the performance of duty. She stopped work on the date of injury.
In support of her claim, appellant submitted an October 17, 2019 hospital emergency
department report by Dr. Richard D. Zane, Board-certified in emergency medicine. Dr. Zane
related that appellant had a history of asthma, and had not experienced a severe exacerbation since
2014 until that day while in her office in the baggage claim area at work. He attributed the current
episode to odor and mold caused by water leaking through the ceiling tiles in her office. On
examination, Dr. Zane observed diminished expiratory sounds with end expiratory wheezing,
coughing, tachycardia, dyspnea, respiratory distress, and tremulousness. As nebulizer treatments
in the emergency department did not improve appellant’s symptoms, she was admitted to the
intensive care unit. Dr. Zane diagnosed an asthma exacerbation attack.
In an October 17, 2019 intensive care unit report, Dr. Richard William Vandivier, Boardcertified in internal medicine and pulmonology, noted that appellant presented with acute shortness
of breath while at work. He noted “[s]he states that there has been some construction and leaking
of moldy odor fluid in her office which likely precipitated her shortness of breath.”
In an October 18, 2019 hospital discharge report, Dr. Vandivier diagnosed an asthma
exacerbation and prescribed medication. He noted that it was important for appellant to avoid any
environmental triggers, particularly at her workplace, “to prevent this from occurring again.”
In a development letter dated June 12, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide comments from a knowledgeable
supervisor on the accuracy of appellant’s statements and the type of tasks performed which
resulted in the exposure and the duration. It afforded both parties 30 days to provide the necessary
evidence.
In response, the employing establishment provided a June 22, 2020 statement confirming
that in the area where appellant was seated on October 17, 2019, there were missing ceiling tiles
and large trashcans placed to collect dripping water. There was also a “smell that was not right.
[Appellant] began coughing and using her emergency inhaler.” She left the area at her supervisor’s
instruction, but her breathing became more erratic. Paramedics were called to the scene and
recommended appellant be taken to an emergency department. Appellant’s husband then
transported her to the hospital.
In a June 24, 2020 statement, appellant’s supervisor, asserted that on the date appellant
experienced an asthma attack, “[w]hen entering the office there was a strong mildew smell with
several wet ceiling tiles and trash cans filled with water.” Appellant began coughing 30 minutes
after her arrival. She exited the office to get fresh air, then began struggling to breathe. Paramedics
were summonsed and administered medication, which did not relieve appellant’s symptoms.
Appellant’s husband then transported her to the hospital.

2

By decision dated July 23, 2020, OWCP accepted that the October 17, 2019 incident
occurred as alleged but denied appellant’s claim as the medical evidence of record did not contain
a diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
On August 11, 2020 appellant requested reconsideration.
medical evidence.

She submitted additional

In an August 4, 2020 report, Dr. Mark Nathanson, an osteopath specializing in family
medicine, noted treating appellant for severe, persistent asthma for more than five years.
Appellant also submitted employing establishment e-mails dated from October 18
through 20, 2019 noting that a water pipe had broken above her work area, causing extensive
leakage and significant odor. In an October 18, 2019 e-mail, a safety specialist, cautioned that
there were “layers of particles that can easily set off [appellant’s] asthma again.”
By decision dated September 16, 2020, OWCP denied reconsideration of the merits of
appellant’s claim.
On December 2, 2020 appellant requested reconsideration. She submitted an October 1,
2020 report by Dr. Nathanson, who noted that appellant had been doing fairly well with her asthma
until an exacerbation at work caused by black mold on waterlogged tiles which caused appellant
to be hospitalized due to the injury. Dr. Nathanson diagnosed a resolved severe exacerbation of
moderate persistent allergic asthma, vocal cord dysfunction, and stable asthma. He prescribed
medication.
By decision dated March 5, 2021, OWCP modified its July 23, 2020 decision to find that
appellant had established a diagnosis that could reasonably be connected to the claimed condition.
The claim remained denied as the medical evidence of record was insufficient to establish causal
relationship.
On May 12, 2021 appellant requested reconsideration. She submitted a May 7, 2021
statement reiterating her account of the events of October 17, 2019. Appellant also submitted an
April 26, 2021 note from Dr. Nathanson noting that her “[a]cute attack which led to
hospitalization” was “caused by dust and other particulate components which stemmed from wet
ceiling tiles at her place of work.” He opined, “this is what brought on her attack.”
By decision dated May 19, 2021, OWCP denied appellant’s request for reconsideration. It
found, “[s]pecifically, causal relationship is a medical issue and you did not submit any medical
evidence in support of your request for reconsideration. We have not received a well-rationalized
medical report.…”

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 2
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 4 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 5 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 6
ANALYSIS
The Board finds that this case is not in posture for decision.
In denying appellant’s request for reconsideration, OWCP did not reference
Dr. Nathanson’s April 26, 2021 report addressing the causal relationship between the claimed
asthma attack to appellant’s exposure to wet ceiling tiles and particulates at the employing
establishment.
In the case of William A. Couch,7 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that Dr. Nathanson’s April 26, 2021 report was
reviewed and considered by OWCP in its May 19, 2021 decision. 8 In its May 19, 2021 decision,
OWCP denied appellant’s request for reconsideration, finding that she failed to submit any medical
evidence in support of her request for reconsideration. As it did not review or consider
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(a).

6

Id. at § 10.608(b).

7

41 ECAB 548, 553 (1990).

8

See T.G., Docket No. 19-1930 (issued January 8, 2021).

4

Dr. Nathanson’s April 26, 2021 report, it failed to follow its own procedures by properly
discussing the relevant evidence of record. 9
As the Board’s decisions are final as to the subject matter appealed, it is crucial that OWCP
address all relevant evidence properly submitted to OWCP prior to the issuance of its decision. 10
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record. Following this and other such further development as deems necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

9
All evidence submitted should be reviewed and discussed in the decision. Evidence received following
development that lacks probative value should also be acknowledged. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
10

20 C.F.R. § 501.6(d); supra note 8; W.G., Docket No. 20-1536 (issued December 17, 2021); see also A.V., Docket
No. 20-1251 (issued January 28, 2021).

5

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2021 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 15, 2022
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

6


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

)
)
)
)
)
)
)
)
)

Appearances:
Robert A. Lebovitz, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-894
Issued: October 2, 2012

Case Submitted on the Record

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

JURISDICTION
On March 9, 2012 appellant, through his attorney, timely appealed the September 14,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that his claimed lumbar condition is causally
related to the accepted January 24, 2009 employment incident.
FACTUAL HISTORY
On January 26, 2009 appellant, then a 50-year-old housekeeping aide, filed a claim (Form
CA-1) for a lower back injury that occurred on January 24, 2009 when he lifted a trash can to

1

5 U.S.C. § 8101 et seq.

empty it.2 He felt a pull in his back, but continued to work until the pain worsened. Appellant
stopped work and was treated in the employee health unit. An employing establishment
physician, Dr. Phani B. Das, treated appellant for an on-duty injury. He advised that appellant
should not perform any lifting until further evaluation. The January 24, 2009 emergency
treatment report of Dr. Das did not provide a specific diagnosis.3 A January 24, 2009 lumbar
x-ray revealed mild degenerative changes, but otherwise no acute process. Appellant was
advised to rest and report back to the employee health unit in a couple days. When he returned
on January 26, 2009 a nurse practitioner diagnosed lumbar strain with right thoracolumbar
spasm. Appellant was advised to remain off work and to follow up with employee health on
January 28, 2009. His work restriction was subsequently extended through February 2, 2009.
At the time of the January 24, 2009 employment incident, appellant was undergoing
treatment for non-Hodgkin’s lymphoma, which was first diagnosed in November 2008. In
February 2009, he was incarcerated due to a reported parole violation. Appellant remained in
custody until September 2010.4 During his incarceration, he continued to receive treatment for
his cancer, as well as various other conditions, including ongoing low back complaints. The
correctional institution treatment records included several references to a January 2009
employment injury and diagnoses of lumbar strain, degenerative disc disease and chronic lower
back pain. Much of the treatment appellant received while incarcerated was provided by nurses
and physicians’ assistants. OWCP advised him that certain healthcare providers, such as
physicians’ assistants, nurse practitioners, physical therapists and social workers, are not
physicians as defined under FECA.5 Consequently, their medical findings and/or opinions would
not suffice for purposes of establishing entitlement under FECA.6
A March 9, 2009 lumbar spine x-ray was reported as normal. However, an April 1, 2009
lumbar computerized tomography scan revealed degenerative changes with diffuse disc bulges
and superimposed disc herniations suspected at L3-4 and L4-5.
Following his September 20, 2010 release from custody, appellant came under the care of
Dr. Brian L. Henry, a Board-certified internist. In an October 6, 2010 report (Form CA-20),
Dr. Henry diagnosed lumbar disc herniation which he attributed to the January 24, 2009 incident
when appellant hurt his back lifting a heavy trash can. He noted that appellant’s magnetic
resonance imaging (MRI) scan revealed bulging discs at L3, L4 and L5 which might require
surgery.

2

Appellant previously sustained an employment-related back injury on April 4, 1984. He received wage-loss
compensation through December 8, 1996, at which time OWCP terminated compensation on the basis that he no
longer had residuals of his injury. The Board affirmed OWCP’s termination of wage-loss compensation. Docket
No. 00-508 (issued March 19, 2002).
3

Dr. Das is a Board-certified thoracic surgeon.

4

Effective March 13, 2009, the employing establishment terminated appellant for cause unrelated to any claimed
injury.
5

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

6

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

2

In a report dated October 21, 2010 (Form CA-20), Dr. Joonyung Lee, a Board-certified
orthopedic surgeon, diagnosed discogenic back pain. He attributed appellant’s condition to the
January 2009 trash can lifting incident. Dr. Lee recommended physical therapy.
In a December 1, 2010 follow-up report, Dr. Henry reviewed the results of a recent
lumbar MRI scan that revealed diffuse disc bulges at L3-4, L4-5 and L5-S1, neural foramina
narrowing and mild central canal stenosis.7 He advised that appellant was currently disabled due
to his back pain.
Dr. Eugene A. Bonaroti, a Board-certified neurosurgeon, examined appellant on
December 6, 2011. He diagnosed right far lateral herniated nucleus pulposus at L4-5 and
referred appellant to pain management. In a December 7, 2011 report (Form CA-20),
Dr. Bonaroti attributed the diagnosed lumbar condition to emptying trash on January 24, 2009.
In a January 15, 2001 report (Form CA-20), Dr. Minhduc T. Tran, a Board-certified
family practitioner, diagnosed lumbar disc herniation, which she attributed to lifting a trash can
on January 24, 2009. She noted that appellant was currently receiving physical therapy and had
been referred to a pain clinic.
By decision dated February 18, 2011, OWCP denied appellant’s traumatic injury claim.
While appellant established that the January 24, 2009 employment incident occurred as alleged,
it found that he failed to establish that his diagnosed lumbar condition was causally related to the
January 24, 2009 employment incident. OWCP noted that the initial diagnosis of lumbar strain
was provided by a nonphysician. With respect to the subsequent diagnosis of lumbar disc
herniations, it found the medical evidence insufficient because the various physicians failed to
explain how the herniations were caused by the January 24, 2009 employment incident.
Appellant requested an oral hearing and submitted additional evidence.
In a March 9, 2011 report, Dr. Henry explained that appellant injured his back on
January 24, 2009 when he picked up a trash can. Since then, appellant experienced significant
back pain that limited his ability to work. Dr. Henry further stated that an October 1, 2010
lumbar MRI scan showed a diffuse bulge at L3-4, L4-5 and L5-S1. He opined that the
January 24, 2009 injury was the cause of appellant’s current lower back symptoms. Dr. Henry
also noted that pharmacological therapies and physical therapy had not resulted in significant
improvement and that appellant was scheduled for a surgical consultation in April 2011.
In a July 22, 2011 report, Dr. Henry elaborated on the causal relationship between
appellant’s lumbar disc herniations and the January 24, 2009 employment incident. He stated
that heavy lifting was a well-documented risk factor for creating bulging discs, such as those
evident on appellant’s October 1, 2010 lumbar MRI scan. Dr. Henry further explained that he
accepted appellant’s report of back pain from lifting the trash can and that no other event was
responsible. Appellant also reported that the pain was not present prior to lifting the trash can on
January 24, 2009 and it had not since resolved. Based on these factors, Dr. Henry opined that
appellant’s current symptoms were caused by the diffuse disc bulge and lumbar stenosis. He
also noted that there was no alternative explanation for appellant’s lower back pain.

7

This appears to be the same MRI scan Dr. Henry referenced in his October 6, 2010 report.

3

OWCP also received a May 6, 1997 lumbar x-ray which revealed a normal lumbosacral
spine.
In a September 14, 2011 decision, the hearing representative affirmed OWCP’s
February 18, 2011 decision. He concluded that the medical evidence failed to prove that
appellant had a compensable low back condition causally related to the January 24, 2009 work
incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.8
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
is alleged to have occurred.9 The second component is whether the employment incident caused
a personal injury.10 An employee may establish that an injury occurred in the performance of
duty as alleged but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the injury.11
ANALYSIS
The Board finds that the case is not in posture for decision.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.12 Although
much of the medical care appellant received for his low back condition was provided by
nonphysicians, he immediately sought treatment following the January 24, 2009 incident. There
8

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

9

Elaine Pendleton, 40 ECAB 1143 (1989).

10

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question which generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
11

Shirley A. Temple, 48 ECAB 404, 407 (1997). The fact that the etiology of a disease or condition is unknown
or obscure does not relieve an employee of the burden of establishing a causal relationship by the weight of the
medical evidence nor does it shift the burden of proof to OWCP to disprove an employment relationship. Judith J.
Montage, 48 ECAB 292, 294-95 (1997).
12

William J. Cantrell, 34 ECAB 1223 (1983).

4

is a documented history of ongoing lumbar complaints since that time. Following appellant’s
release from custody in September 2010, Dr. Henry diagnosed lumbar disc herniations which he
attributed to the January 24, 2009 employment incident. While his various reports are
insufficient to discharge appellant’s burden of proof that to establish the lumbar herniated discs
are causally related to the January 24, 2009 employment incident, the evidence is sufficient to
require further development of the case record by OWCP.13
On remand, OWCP should refer appellant to an appropriate specialist, together with the
case record and a statement of accepted facts. The specialist should be requested to address the
medical evidence of record and whether the accepted evidence caused an injury. If so, he or she
should address the nature and extent of any employment-related residuals and disability. After
such further development of the case record as OWCP deems necessary, a de novo decision shall
be issued.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2011 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: October 2, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

13

See John J. Carlone, supra note 10; Horace Langhorne, 29 ECAB 820 (1978).

5