United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALVIN C. YORK MEDICAL CENTER,
Murfreesboro, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-556
Issued: June 7, 2007

Case Submitted on the Record

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

JURISDICTION
On December 21, 2006 appellant filed an appeal of a March 1, 2006 decision of the
Office of Workers’ Compensation Programs denying her traumatic injury claim, a June 21, 2006
decision affirming the prior denial and an October 26, 2006 nonmerit decision denying her
request for a merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim and the denial of merit review.
ISSUES
The issues are: (1) whether appellant established that she sustained a left shoulder injury
in the performance of duty; and (2) whether the Office properly denied appellant’s request for a
merit review.
FACTUAL HISTORY
On January 4, 2006 appellant, then a 54-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) asserting that, on November 2, 2005, she sustained inflammation of the left

shoulder due to holding a telephone receiver with her right shoulder while typing on a computer.
She was off work from November 7 to 27, 2005.
In a January 25, 2006 letter, the Office advised appellant of the type of medical and
factual evidence needed to establish her claim. The Office requested that appellant explain how
holding the receiver with her right shoulder would cause a left shoulder injury. The Office also
emphasized the need for her physician to submit a report explaining how and why the alleged
November 2, 2005 incident would cause the claimed left shoulder injury.
In a November 10, 2005 slip, Dr. Caroll G. Odem, an attending Board-certified internist,
diagnosed carpal tunnel syndrome and prescribed a wrist splint.1 On December 5, 2005 she
noted work restrictions and held appellant off work through December 4, 2005.2
By decision dated March 1, 2006, the Office denied appellant’s claim on the grounds that
fact of injury was not established. The Office found that she submitted insufficient information
to establish the November 2, 2005 incident as factual. The Office further found that appellant
failed to explain why she waited two months to file her claim.
On March 29, 2006 appellant requested a review of the written record by a representative
of the Office’s Branch of Hearings and Review. She submitted her April 5, 2006 letter asserting
that a problem with electronic signature codes caused the delay in filing her claim. Appellant
described the November 2, 2005 incident as trying to type while holding a telephone receiver
with her right shoulder.
She provided a list of medical appointments through
November 17, 2005. Appellant also submitted leave records showing intermittent absences from
December 3, 2005 to February 10, 2006.3
By decision dated June 21, 2006, the Office hearing representative affirmed the March 1,
2006 decision as modified, finding that the November 2, 2005 incident occurred at the time,
place and in the manner alleged. The Office found, however, that appellant did not submit
sufficient rationalized medical evidence to establish that the accepted incident caused the
claimed left shoulder injury.
In an August 15, 2006 letter, appellant requested reconsideration.
additional evidence.

She submitted

In a November 7, 2005 chart note, Dr. Mary K. McDonald, an attending Board-certified
physiatrist, stated that appellant complained of left shoulder and arm pain for the past five days.
She obtained imaging and diagnostic studies demonstrating left-sided C6-7 radiculopathy due to
a protruding disc. In an April 14, 2006 report, Dr. McDonald diagnosed cervical spine pain,
subacromial bursitis, degenerative disc disease of the cervical spine at C6-7, myofascial pain
1

A November 11, 2005 cervical magnetic resonance imaging scan showed degenerative disc disease with disc
bulging at C5-6 and C6-7. November 11, 2005 electromyography and nerve conduction velocity studies showed
moderate left carpal tunnel syndrome and a possible cervical radiculopathy.
2

Appellant also submitted insurance billing statements and unsigned forms.

3

Appellant also submitted copies of test results previously of record and insurance billing statements.

2

syndrome of the left neck and shoulder and left arm paresthesias. She provided April 16, 2006
work restrictions. Dr. McDonald administered trigger point injections to the left shoulder on
April 12, May 1 and 12, 2006. In a May 12, 2006 report, she attributed appellant’s left shoulder
and neck symptoms to cervical radiculopathy. Dr. McDonald prescribed physical therapy for
cervical decompression. She submitted periodic treatment notes through August 2006 noting a
good response to pain management.
Appellant also submitted insurance billing statements and medical appointment slips.
By decision dated October 26, 2006, the Office denied reconsideration on the grounds
that the evidence submitted was insufficient as it did not contain medical rationale explaining
how and why the accepted November 2, 2005 incident would cause the claimed shoulder injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.6
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office 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. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.7
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8

4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001).

8

Deborah L. Beatty, 54 ECAB 340 (2003).

3

ANALYSIS -- ISSUE 1
Appellant asserted that she sustained a left shoulder injury on November 2, 2005 due to
typing while holding a telephone receiver with her right shoulder. The Office accepted that this
incident occurred as alleged, but the Office denied the claim on the grounds that the medical
evidence submitted was insufficiently rationalized to establish that the accepted incident caused a
right shoulder injury.
Appellant submitted medical evidence in support of her claim from Dr. Odem, an
attending Board-certified internist, who diagnosed carpal tunnel syndrome and prescribed a wrist
splint. Dr. Odem noted work restrictions and held appellant off work through December 4, 2005,
but she did not mention the accepted November 2, 2005 incident. Without medical rationale
explaining how and why the accepted incident would cause the claimed left shoulder injury, her
opinion is of insufficient probative value to establish causal relationship in this case.9
Appellant also submitted her April 5, 2006 statement and employing establishment leave
records. As there is no evidence these documents were reviewed or signed by a physician, they
are of no probative value in establishing causal relationship in this case.10
The Board finds that appellant submitted insufficient rationalized medical evidence to
establish the causal relationship asserted in this case. Therefore, the Office’s March 1 and
June 21, 2006 decisions denying appellant’s claim are proper under the law and facts of this case.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,11 section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a
claimant must: (1) show that the Office erroneously applied or interpreted a specific point of
law; (2) advance a relevant legal argument not previously considered by the Office; or
(3) constitute relevant and pertinent new evidence not previously considered by the Office.12
Section 10.608(b) provides that when an application for review of the merits of a claim does not
meet at least one of the three requirements enumerated under section 10.606(b)(2), the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.13

9

Id.

10

See James A. Long, 40 ECAB 538 (1989); Susan M. Biles, 40 ECAB 420 (1988) (where the Board held that the
statement of a layperson is of not competent evidence on the issue of causal relationship).
11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(2) (2003).

13

Id. at § 10.608(b) (2003).

4

In support of his or her request for reconsideration, a claimant is not required to submit
all evidence which may be necessary to discharge his or her burden of proof.14 Appellant need
only submit relevant, pertinent evidence not previously considered by the Office.15 When
reviewing an Office decision denying a merit review, the function of the Board is to determine
whether the Office properly applied the standards set forth at section 10.606(b)(2) to the
claimant’s application for reconsideration and any evidence submitted in support thereof.16
ANALYSIS -- ISSUE 2
The Office denied appellant’s traumatic injury claim by decisions dated March 1 and
June 21, 2006, finding that she submitted insufficient evidence to establish causal relationship.
Appellant then requested reconsideration by an August 15, 2006 letter. The critical issue at the
time of the last merit decision in the case was whether appellant established a pathophysiologic
causal relationship between the accepted November 2, 2005 incident and the claimed left
shoulder injury. To be relevant, the evidence submitted in support of the August 15, 2006
request for reconsideration must address that issue.17
In support of appellant’s request, she submitted reports from Dr. McDonald, an attending
Board-certified physiatrist. In a November 7, 2005 chart note, Dr. McDonald mentioned
appellant’s five-day history of left shoulder and arm pain. However, she did not mention the
accepted November 2, 2005 incident. In reports from April 14 through August 2006,
Dr. McDonald mentioned appellant’s symptoms and diagnosed cervical spine pain, subacromial
bursitis, degenerative disc disease of the cervical spine at C6-7, myofascial pain syndrome of the
left neck and shoulder and left arm paresthesias. She did not explain how or why the accepted
November 2, 2005 incident would cause any of the diagnosed conditions.
As Dr. McDonald failed to provide medical rationale addressing causal relationship, her
reports are irrelevant to the critical issue in the claim. Similarly, the billing statements and
appointment slips are also irrelevant as they do not address the critical issue of causal
relationship. The Board has held that the submission of evidence which does not address the
particular issue involved does not comprise a basis for reopening a case.18
Thus, appellant has not established that the Office improperly refused to reopen her claim
for a review of the merits under section 8128(a) of the Act, because she did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by the Office or constitute relevant and pertinent new
evidence not previously considered by the Office.

14

Helen E. Tschantz, 39 ECAB 1382 (1988).

15

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

16

Annette Louise, 54 ECAB 783 (2003).

17

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

18

Joseph A. Brown, Jr., supra note 17.

5

CONCLUSION
The Board finds that appellant has not established that she sustained a left shoulder injury
in the performance of duty. The Board further finds that the Office properly denied appellant’s
August 15, 2006 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 26, June 21 and March 1, 2006 are affirmed.
Issued: June 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 13-860
Issued: August 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 27, 2013 appellant, through his attorney, filed a timely appeal of the
January 7, 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 appellant established that he sustained an employment-related injury
to his right knee on March 15, 2011, as alleged.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 4, 2011 appellant, then a 29-year-old letter carrier, filed an occupational
disease claim wherein he alleged that on March 15, 2011, while performing his federal duties, he
felt a pop inside his right knee and that every time he took a step he felt discomfort. The
employing establishment controverted his claim.
By decision dated January 17, 2012, OWCP denied appellant’s claim for failure to
establish that the event occurred as alleged.
On January 24, 2012 appellant, through his attorney, requested a telephone hearing.
In further support of his claim, appellant submitted emergency room records from Forest
Hills Hospital indicating that he was seen on March 16, 2011 complaining of right knee pain and
slight swelling. He was diagnosed with right knee sprain. The report was signed by Dr. Stacy
Kesten, a physician Board-certified in emergency medicine. The majority of the notations on
this report are illegible.
Appellant also submitted chart notes from Queens’ Health Network. In an August 19,
2011 report, Dr. Stuart G. Kessler, a physician Board-certified in emergency medicine, noted that
appellant had pain in the right knee joint. In a September 7, 2011 note, Dr. Jose Arandia noted
abnormal right knee crepitation with preserved range of motion and no local swelling. In a
November 23, 2011 report, he noted pain in joint, lower leg. In a December 7, 2011 report, a
Dr. Yangguan Wu noted that appellant’s right knee pain and swelling which made it difficult for
him to walk and that he had right knee swelling after walking. He diagnosed pain in the joint,
lower leg.2
The record also contains notes from physicians at the City Hospital Center at Elmhurst.
In a September 7, 2011 note, Dr. David Weeks, a Board-certified radiologist, interpreted an x-ray
of appellant’s right knee and determined that no fracture was demonstrated and there was normal
joint alignment. Dr. Martin J. Fine, a Board-certified radiologist, interpreted a December 23,
2011 lower extremity magnetic resonance imaging (MRI) scan as showing a tiny focal tear
posterior torn medial meniscus reaching the inferior articular margin.
Dr. Charles Demarco, a Board-certified orthopedic surgeon, saw appellant on several
occasions. He noted in a January 24, 2012 report that appellant was a mail carrier who on
March 15, 2011, while walking and delivering mail, sustained a twisting injury and felt a pop in
his right knee, and that since that time he has had pain and dysfunction in the right knee, located
over the anterior and anteromedial aspects of the right knee. Dr. Demarco noted that appellant
had an MRI scan that showed a small meniscal tear. He further noted significant pain and
dysfunction in the right knee and recommended authorization for surgical intervention, noting
that appellant failed conservative management. In a February 28, 2012 report, Dr. Demarco
noted that appellant’s MRI scan of the right knee showed a torn meniscus and that the only
option was surgical intervention. In an April 3, 2012 report, he diagnosed a torn meniscus right

2

The Board was unable to confirm the qualifications of Drs. Arandia and Wu.

2

knee. Dr. Demarco again requested authorization for surgical intervention of the right knee with
arthroscopy, meniscectomy and debridement.
At the hearing held on April 17, 2012 appellant testified before an OWCP hearing
representative that, prior to the alleged injury, he never complained to any supervisor about pain
in his knee. He further testified with regard to his medical treatment.
In an April 19, 2012 report from University Orthopedics of New York, a box was
checked indicating that appellant was under their care and was totally disabled and could not
return to work until further notice. The report indicated that this was due to an injury to
appellant’s right knee that he sustained in an employment-related accident on March 15, 2011.
This document is not signed; in the place for a signature there is a stamp for University
Orthopedics.
In a June 1, 2012 report, Dr. Faina Kogan, a Board-certified internist, indicated that
appellant had been under her care since April 27, 2012. She noted that he has right knee partial
meniscal tear and right knee pain. Dr. Kogan further stated that appellant can start light duty on
June 5, 2012 and should continue with physical therapy and evaluate for return to work full time.
On July 2, 2012 an OWCP hearing representative found that, although appellant’s claim
was filed for an occupational disease, he actually was claiming a traumatic injury on
March 15, 2011. She found that he established that the employment incident occurred as alleged.
However, the hearing representative denied appellant’s claim as it found that the medical
evidence did not establish a diagnosed condition causally related to the accepted incident.
On October 4, 2012 appellant requested reconsideration. In support thereof, he submitted
new medical evidence. In a January 17, 2012 report, Dr. Harold James, an internist, diagnosed
post-traumatic injury to the right knee. He noted that appellant gave a history of feeling a pop in
his right knee while walking his route on March 15, 2011 and that later that night his knee was
painful and swollen. Dr. James stated that, if the accident and history reported by appellant were
accurate, then a causal relationship of the initial complaints and examination findings exist to the
accident of March 15, 2011.
In a July 27, 2012 report, Dr. Michael Alleyne, a physician with Board-certifications in
internal medicine, hematology and medical oncology, noted that appellant was walking his
preassigned route with his mail push cart when he suddenly felt a popping sound in his right
knee. He noted that appellant went to the hospital the next day, and an x-ray of the right knee
failed to reveal a fracture. Dr. Alleyne noted that appellant was then seen by an orthopedist,
Dr. Wu, who ordered an MRI scan of the right knee, that the MRI scan showed a tiny focal tear
of the posterior horn of the medial meniscus reaching the inferior articular margin. He noted that
appellant’s physical therapy helped and that he needed to continue for another three months. In
an August 4, 2012 report on a form, Dr. Alleyne noted that appellant was injured at work on
March 15, 2011 while walking with his push cart on duty and heard a popping sound in his right
knee. He diagnosed derangement of the knee.
By decision dated January 7, 2013, OWCP denied modification of its prior decisions.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
In order to determine whether an employee actually sustained an 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, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
The Board finds that appellant has not established that he sustained a diagnosed condition
causally related to the accepted employment incident of March 15, 2011. Appellant received
treatment from Dr. Kesten for a right knee sprain on March 16, 2011. The notes from the
emergency department are largely illegible, and therefore are not helpful in determining whether
this sprain was related to the employment incident. These are the only medical notes
3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

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

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

4

contemporaneous with the March 15, 2011 employment incident. The notes from the physicians
at Queens’ Health Network, Drs. Kessler, Arandia and Wu, basically discuss right knee pain and
swelling; but they do not address the causal relationship aspect.
The diagnostic studies conducted at City Hospital Center at Elmhurst are not sufficient to
establish appellant’s claim. Dr. Weeks interpreted appellant’s x-ray of September 7, 2011 as
evincing no fracture and normal joint alignment. Dr. Fine interpreted an MRI scan of
December 21, 2011 as showing a tiny tear in the medial meniscus, but made no statement with
regard to causation. Dr. Demarco did discuss appellant’s work incident and noted that he
sustained a twisting injury and felt a pop in his right knee while delivering mail on
March 15, 2011. He recommended surgical intervention. Dr. Demarco’s opinion with regard to
causation is not well rationalized and appears to be based solely on appellant’s description of the
incident. In fact, he noted a twisting injury that appellant did not describe in his account of his
injury. Accordingly, Dr. Demarco’s opinion is not sufficient to establish causal relationship.
The April 19, 2012 report from University Orthopedics of New York is not signed by a physician
and is accordingly entitled to no weight.8
Dr. Kogan did not address causal relationship.
Dr. James did state that appellant’s post-traumatic injury of the right knee was related to
the March 15, 2011 incident. However, he examined appellant on January 17, 2012. Dr. James’
report is not sufficiently rationalized to explain why appellant’s current injury to his right knee
was related to the incident that occurred 10 months earlier. Dr. Alleyne did not examine
appellant until 16 months after the March 15, 2011 employment incident. Although he did relate
appellant’s tear in the right medial meniscus to his employment, Dr. Alleyne also appears to base
his conclusion largely on appellant’s statements. He does not explain his conclusion, which is
particularly important due to the lapse in time.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was caused by his employment is sufficient to
establish causal relationship.9 As appellant did not submit a rationalized medical opinion
establishing a causal relationship between his accepted employment incident and a diagnosed
medical condition claimed he did not 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.

8

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). See B.K., Docket No. 13-481
(issued May 20, 2013).
9

Walter D. Morehead, 31 ECAB 188 (1986).

5

CONCLUSION
The Board finds that appellant has not established that he sustained an employmentrelated injury to his right knee on March 15, 2011, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 7, 2013 is affirmed.
Issued: August 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION,
St. Thomas, U.S. Virgin Islands, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 14-907
Issued: November 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 11, 2014 appellant filed a timely appeal from October 25, 2013 and
January 10, 2014 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. §§ 8101-8193.

The Board notes that in her appeal to the Board, appellant indicated that she was appealing decisions dated
October 31 and December 30, 2013. The Board finds that these are letters that are informational in nature and do
not constitute appealable final decisions of OWCP. Under 20 C.F.R. § 501.3(d)(2) of the Board’s regulations, the
Board’s jurisdiction is limited to reviewing final decisions of OWCP that are issued within 180 days of the filing of
the appeal. Appellant also referenced a December 18, 2013 decision. A review of that decision indicates that it was
denying Dr. Edward’s request for surgical authorization and was addressed to his practice. Board regulations
provide that only a party adversely affected by a final decision of OWCP may file for review of such decision of the
Board. 20 C.F.R. § 501.3(a). Appellant does not have standing to appeal that decision.

ISSUE
The issue is whether appellant has established a recurrence of total disability beginning
April 28, 2013.
On appeal appellant generally asserts that the medical evidence establishes that she
sustained a recurrence of disability.
FACTUAL HISTORY
On January 10, 2011 appellant, then a 44-year-old transportation security screener, filed a
traumatic injury claim alleging that she injured her back while lifting baggage that day. A
February 25, 2011 magnetic resonance imaging (MRI) scan study of the lumbar spine
demonstrated minimal disc desiccation at L3-4 and L4-5 with bulging discs and no disc
herniation or central canal stenosis. In a duty status report dated March 14, 2011, Dr. James D.
Nelson, Board-certified in internal medicine and neurology, advised that appellant could return
to work that day for six hours of modified duties with restrictions of no kneeling, bending or
stooping, and six hours of sitting, four hours of standing, walking, twisting, pulling, pushing,
grasping and reaching above the shoulder. Appellant was to alternate sitting and standing and
had a 10-pound weight restriction.
Appellant returned to limited duty for six hours a day on March 14, 2011. The job
description indicated that she would check boarding passes and passenger identification for a
maximum of 30 minutes in rotation with maximum lifting of one pound eight ounces, and that
she would work at the online learning center for 2-hour intervals. The physical restrictions were
within those outlined by Dr. Nelson. On April 4, 2011 OWCP accepted that appellant sustained
a lumbar sprain and she thereafter received wage-loss compensation for two hours a day.
On April 8, 2011 appellant filed a recurrence claim, alleging that on April 6, 2011 she felt
a sudden sharp pain while using the bathroom. She stopped work that day. By decision dated
June 9, 2011, OWCP denied that appellant sustained a recurrence of total disability on the
grounds that the medical evidence did not establish that the claimed recurrence was caused by
the January 10, 2011 employment injury. In a merit decision dated September 12, 2011, it
denied modification of the June 9, 2011 decision. Appellant continued to receive wage-loss
compensation for two hours daily. She returned to work, four hours daily, on November 6, 2011
and for six hours daily on February 12, 2012. Appellant continued to receive compensation for
two hours a day through March 24, 2012.3
Appellant worked sporadically from April 28 to May 28, 2013 when she stopped work.
During this period, she relocated from the U.S. Virgin Islands to Atlanta, Georgia. Appellant did
not return to work thereafter. On CA-7 claim forms dated May 8 and June 3, 2013, received by
OWCP on August 1 and 29, 2013, she filed claims for compensation for the period April 28 to
May 30, 2013. In letters dated August 9, September 6 and 9, 2013, OWCP informed appellant of
the evidence needed to support her claims for compensation.

3

In the spring of 2012, appellant began working eight hours daily. Dr. Nelson indicated on May 17, 2012 that
she continued to work eight hours a day.

2

In reports dated February 7 and April 18, 2013, Dr. Nelson noted that appellant continued
to complain of persistent intermittent lower back pain associated with leg pain while walking.
He indicated that she was working eight hours daily and had a lifting restriction of 10 pounds.
On April 30, 2013 Dr. Nelson reported that appellant was unable to work on April 28, 2013 due
to severe low back pain that radiated into her left lower extremity. On examination he found
tenderness and muscle spasm in the cervical, trapezius, paraspinal and lumbar muscles.
Dr. Nelson advised that appellant could return to work for four hours daily on May 13, 2013 and
continued the 10-pound lifting restriction. On May 8 and 28, 2013 he indicated that she could
have a trial of work for four hours a day, five days a week, with the continued lifting restriction.
In a June 24, 2013 report, Dr. Christopher R. Edwards, a Board-certified orthopedic
surgeon, advised that appellant had some positive neuromechanical findings on examination.4 A
July 8, 2013 electrodiagnostic study of the lower extremities was suggestive of an abnormality in
the left S1 nerve root distribution. There were no findings to suggest a lumbar radiculopathy, a
dysfunction involving the deep peroneal or tibial nerves, or a polyneuropathy or myopathy. An
August 3, 2013 MRI scan study of the lumbar spine demonstrated disc bulges at L3-4 and L4-5
with canal narrowing, worse at L4-5 with a disc protrusion; milder degenerative changes,
particularly at L5-S1 and bilateral sacroiliac degenerative changes. On August 12, 2013
Dr. Edwards noted that appellant’s symptoms had increased, opining that this was a result of
severe stenosis. A lumbar myelogram on August 23, 2013 demonstrated diffuse disc bulges at
L3-4 and L4-5 with a right-sided protrusion at L4-5 and small bulges also seen at L2-3 and L5S1. Appellant had epidural injections and Dr. Edwards continued to submit reports describing
her condition. On September 13, 2013 Dr. Edwards indicated that the stenosis at L4-5 was
multifactorial and related to her original and subsequent work injuries.
By decision dated October 10, 2013, OWCP denied appellant’s claim for compensation
for the period April 28 to June 29, 2013 as the medical evidence did not establish how her work
stoppage was related to the accepted January 10, 2011 lumbar sprain. It advised her to form a
recurrence claim and submit explanatory medical evidence. OWCP resent the decision on
October 25, 2013.5
Appellant continued to submit CA-7, claims for compensation. She submitted a
recurrence claim, dated September 20, 2013, on October 30, 2013. Appellant stated that she
sustained a recurrence of disability on May 28, 2013 when she felt a sharp pain when she was
returning from “the bank.” By letter dated November 22, 2013, OWCP informed appellant of
the medical evidence needed to support her claim, to include a comprehensive narrative medical
report that described the original mechanism of injury, a description of her current symptoms,
current objective findings upon examination, results of all diagnostic studies and a medical report
explaining how the claimed disability was due to the original injury.
In a December 4, 2013 statement, appellant indicated that the recurrence occurred on
May 28, 2013 when she was leaving work to go to Dr. Nelson’s office. She stated that her lightduty work consisted of checking boarding passes and traveler’s identification with sitting and
4

Dr. Nelson practices in the U.S. Virgin Islands; Dr. Edwards in Atlanta, Georgia.

5

On September 27, 2013 appellant submitted a written change of address to OWCP from the Virgin Islands to
Georgia. The October 10, 2013 decision was mailed to the Virgin Islands address, and on October 25, 2013, it was
properly mailed to her Georgia address.

3

standing four hours daily, and that her symptoms worsened when she had to sit and stand for
long lengths of time. Appellant submitted a disability statement from Dr. Nelson dated May 28,
2013 indicating that she should remain off work until July 28, 2013. In an August 27, 2013
report, Dr. Asutosh Vyas, a pain management specialist, noted seeing appellant for follow up
regarding low back pain that began when she lifted a heavy piece of luggage at work on
January 10, 2011. He described physical examination findings, noting tenderness to palpation of
the lumbar spine, restricted lumbar spine range of motion and palpable trigger points of low back
muscles. Straight leg raising was normal, and motor strength and sensation were within normal
limits. Dr. Vyas diagnosed low back pain, discogenic in origin; lumbar radiculopathy and
lumbar stenosis.
On work status reports dated August 12 and 30, September 13 and 27, 2013, Dr. Edwards
indicated that appellant was unable to work August 12 to October 18, 2013 due to a herniated
disc at L4-5 and multifactorial stenosis.6 In a November 21, 2013 report, Dr. Michael V.
Yancey, a Board-certified neurosurgeon, noted a history that appellant injured her back at work
on January 10, 2011 when she assisted a coworker to lift a heavy piece of luggage. He reported
her medical and work history and her complaint of lower lumbar pain with some radiation
upwards into the mid-back and neck and leg weakness. Dr. Yancey noted the diagnostic study
findings. He indicated that examination demonstrated apparent weakness in motor strength in
the left iliopsoas, left quadriceps, and left hamstring and mild weakness in the left peroneus
longus muscle and decreased pinprick sensation in the right L4 and S1 dermatomes. Dr. Yancey
diagnosed lumbago, degeneration of lumbar or lumbosacral intervertebral disc, lumbosacral
spondylosis without myelopathy and displacement of lumbar intervertebral disc without
myelopathy. He recommended lumbar decompression and fusion surgery at L3-4 and L4-5. On
December 6, 2013 Dr. Edwards described appellant’s symptoms and recommended surgery. He
requested authorization for surgery that day.
By decision dated January 10, 2014, OWCP denied appellant’s recurrence claim on the
grounds that the medical evidence was insufficient to establish entitlement.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.7 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.8

6

Appellant also submitted several unsigned and unidentified medical reports.

7

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

8

Id.

4

When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.9
ANALYSIS
The Board finds that appellant has not established a recurrence of total disability on or
after April 28, 2013 causally related to the accepted January 10, 2011 lumbar sprain because she
did not establish that the nature and extent of her injury-related condition changed so as to
prevent her from continuing to perform her limited-duty assignment.
A partially disabled claimant who returns to a light-duty job has the burden of proving
that he or she cannot perform the light duty, if a recurrence of total disability is claimed.10 The
issue of whether an employee has disability from performing a modified position is primarily a
medical question and must be resolved by probative medical evidence.11 A claimant’s burden
includes the necessity of furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury and supports that conclusion with sound medical rationale.
Where no such rationale is present, the medical evidence is of diminished probative value.12
Based on a March 14, 2011 report from Dr. Nelson, an attending neurologist, appellant
returned to six hours of modified duty that day. The job duties were within the restrictions
provided by Dr. Nelson and consisted of checking boarding passes and passenger identification
for a maximum of 30 minutes in rotation with maximum lifting of one pound eight ounces and
that she would work at the online learning center for two-hour intervals. Appellant stopped work
on April 6, 2011. In merit decisions dated June 9 and September 12, 2011, OWCP denied that
she sustained a recurrence of total disability on April 6, 2011. On November 6, 2011 appellant
returned to four hours of modified duty daily and to six hours on February 12, 2012. She
continued to receive wage-loss compensation for two hours daily until she began eight hours of
modified duty daily in the spring of 2012.
Appellant worked sporadically from April 28 to May 28, 2013, then stopped work and
did not return. She moved from the Virgin Islands to Georgia in May 2013 and thereafter filed
CA-7 claims for compensation and a recurrence claim for partial disability beginning April 28,
2013 and total disability beginning May 28, 2013.
On April 30, 2013 Dr. Nelson reported that appellant was unable to work on April 28,
2013 due to severe low back pain that radiated into her left lower extremity. He advised that she
could return to work for four hours daily on May 13, 2013 and continued the 10-pound lifting
9

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

10

See William M. Bailey, 51 ECAB 197 (1999).

11

Cecelia M. Corley, 56 ECAB 662 (2005).

12

Mary A. Ceglia, 55 ECAB 626 (2004).

5

restriction. On May 8 and 28, 2013 Dr. Nelson indicated that appellant could have a trial of
work for four hours a day, five days a week, with the continued lifting restriction. He also
indicated in another May 28, 2013 report that she should remain off work until July 28, 2013.
Dr. Nelson’s May 28, 2013 reports are contradictory. While the opinion of a physician
supporting causal relationship need not be one of absolute medical certainty, the opinion must
not be speculative or equivocal. The opinion should be expressed in terms of a reasonable
degree of medical certainty.13 Moreover, Dr. Nelson did not provide an explanation with
sufficient rationale as to why appellant could not perform the modified work duties of checking
boarding passes and passenger identification. His reports are therefore insufficient to establish
that she was disabled after April 28, 2013.
After appellant moved to Georgia, she began treatment with Dr. Edwards, an orthopedic
surgeon. In reports dated June 24 to December 6, 2013, Dr. Edwards noted appellant’s
complaint of severe back pain, diagnosed disc bulge at L4-5 and severe stenosis and indicated
that she was totally disabled. While he opined that appellant’s back condition was multifactorial,
he also stated that it was related to her original and subsequent work injuries. The Board finds
the reports of Dr. Edwards also insufficient to establish appellant’s recurrence claim as the
physician did not provide a sufficient explanation as to how the mechanics of the January 10,
2011 employment injury, accepted for lumbar sprain, caused her complaints of severe back pain
such that she could not perform the duties of the modified assignment. Dr. Edwards did not
demonstrate specific knowledge of the assignment or provide an explanation with sufficient
rationale as to why appellant could not perform the work duties of checking boarding passes and
passenger information that she performed from March 14 to April 6, 2011 and November 6,
2011 to May 28, 2013.
In an August 27, 2013 report, Dr. Vyas described physical examination findings and
diagnosed low back pain, discogenic in origin; lumbar radiculopathy and lumbar stenosis.
Dr. Yancey provided a November 21, 2013 report in which he reported appellant’s medical and
work history, performed physical examination, and diagnosed lumbago, degeneration of lumbar
or lumbosacral intervertebral disc, lumbosacral spondylosis without myelopathy and
displacement of lumbar intervertebral disc without myelopathy. He recommended lumbar
decompression and fusion surgery at L3-4 and L4-5. The merit issue in this case is whether
appellant is entitled to total disability compensation beginning April 28, 2013. The issue of
whether a claimant’s disability is related to an accepted condition is a medical question which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to employment factors and
supports that conclusion with sound medical reasoning.14 Neither Dr. Vyas nor Dr. Yancey
commented on appellant’s ability to work. Their opinions are therefore of no probative value
regarding appellant’s entitlement to total disability compensation.
It is appellant’s burden of proof to submit the necessary medical evidence to establish a
claim for a recurrence.15 The record does not contain a medical report providing a reasoned
medical opinion that her claimed recurrence of disability was caused by the January 10, 2011
13

Ricky S. Storms, 52 ECAB 349 (2001).

14

Sandra D. Pruitt, 57 ECAB 126 (2005).

15

Beverly A. Spencer, 55 ECAB 501 (2004).

6

employment injury.16 Furthermore, appellant has not shown a change in her light-duty
requirements. She therefore did not meet her burden of proof to establish disability as a result of
a recurrence.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a recurrence of disability on or after April 28, 2013 causally related to her accepted
lumbar sprain.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 10, 2014 and October 25, 2013 are affirmed.
Issued: November 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

16

Cecelia M. Corley, supra note 11.

17

S.F., 59 ECAB 525 (2008).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, SHAKER HEIGHTS
POST OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1141
Issued: March 10, 2022

Case Submitted on the Record

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

On July 20, 2021 appellant, through counsel, sought an appeal from a purported July 20,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1141.
The Board has duly considered the matter and notes that the Board has jurisdiction to the
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
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

Counsel did not appeal from OWCP’s June 7, 2021 merit decision, which affirmed OWCP’s November 30, 2020
forfeiture decision. He identified only the purported July 20, 2021 decision on the application for review (AB-1
Form). Therefore, the Board will not consider the June 7, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3;
see also D.E., Docket No. 21-0531 (issued June 16, 2021).
3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§501.2(c) and 501.3(a).

the date appellant filed her appeal. 4 While there is correspondence dated July 20, 2021, that letter
is purely informational in nature and does not constitute a final adverse decision of OWCP from
which she may properly appeal.5 As there is no final adverse decision issued by OWCP that
counsel has appealed from over which the Board may properly exercise jurisdiction, the Board
lacks jurisdiction over the appeal. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1141 is dismissed. 6
Issued: March 10, 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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
4

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020).
6

The Board’s decisions and orders are final upon the expiration of 30 days from the date of their issuance. 20
C.F.R. § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF THE DEFENSE, DEFENSE
AGENCIES, Fort Eustis, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-538
Issued: May 14, 2013

Case Submitted on the Record

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

JURISDICTION
On January 2, 2013 appellant filed a timely appeal from a December 12, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) which denied her traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury to her left upper back while in the
performance of duty on May 9, 2011.
FACTUAL HISTORY
This case was previously before the Board.2 In a decision dated April 11, 2012, the
Board set aside OWCP’s August 3, 2011 decision denying appellant’s traumatic injury claim and
1

5 U.S.C. § 8101 et seq.

2

Docket No. 11-1979 (issued April 11, 2012).

remanded the case for further development of the medical evidence. The facts contained in that
prior decision are incorporated by reference. The relevant facts are set forth.
On May 9, 2011 appellant, then a 56-year-old military pay technician, filed a traumatic
injury claim alleging that she experienced pain on the left side of her body when she opened the
service window of the finance office and the metal roll-up service window fell off the wall and
struck the left side of the body. She provided medical records from her treating physician,
Dr. Tammy Beavers, a Board-certified family practitioner, who diagnosed upper back pain and
disorders of soft tissue.
OWCP referred the case to its medical adviser to determine whether a definitive
diagnosis of an injury-related condition had been provided. In a July 15, 2011 report, the
medical adviser related that appellant was apparently hit by something heavy and complained of
upper back pain. He reviewed her history and noted that x-ray reports were not available. The
medical adviser recommended that appellant’s case be referred to a second opinion examiner to
determine if any objective findings were present to support a diagnosed condition. If no
objective findings were present, he advised that OWCP deny her claim because pain was not
considered a definitive diagnosis.
By decision dated August 3, 2011, OWCP accepted that the May 9, 2011 incident
occurred as alleged but denied appellant’s claim finding insufficient medical evidence to
establish that she sustained a diagnosed medical condition as a result of the accepted incident.
In an April 11, 2012 decision, the Board set aside the August 3, 2011 OWCP decision,
finding that the medical adviser’s report was insufficient to support the denial of her claim as his
opinion was based on an incomplete record. The case was remanded to OWCP to secure a
medical report based upon an accurate medical record and to address all of the medical issues
relevant to her claim.
In a May 9, 2012 report, Dr. Beavers stated that appellant’s injury to her upper back
could also be documented by trapezius spasm (333.83) and upper back pain (724.1). She
reported that these conditions were present with the soft tissue swelling appellant had after the
injury.
In an August 20, 2012 letter, OWCP advised appellant to submit a medical report from
her attending physician which included dates of examination and treatment, history of injury,
results of diagnostic tests, a definitive diagnosis, and a medical opinion explaining how the
May 9, 2011 employment incident caused her medical conditions.
By decision dated December 12, 2012, OWCP denied appellant’s claim finding
insufficient medical evidence to establish that she sustained a diagnosed condition causally
related to the May 9, 2011 employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS
The Board finds that this case is not in posture for a decision.
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

James Mack, 43 ECAB 321 (1991).

3

Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.14 Once OWCP undertakes to development the medical evidence further, it has
the responsibility to do so in a proper manner.15 In this case, it undertook the development of
medical evidence when it referred appellant to the district medical adviser for evaluation.
Accordingly, OWCP had an obligation to secure a report that was based upon an accurate
medical record and that addressed the relevant issue.
13

In the prior decision, the Board found that the medical adviser’s report was insufficient to
support OWCP’s August 3, 2011 denial decision and remanded the case for further development
of the medical evidence. The medical adviser noted that x-rays were not available and he
recommended that the case be referred to a second opinion physician to determine whether
appellant had a diagnosed condition.
On remand, appellant submitted a report from her treating physician, Dr. Beavers.
OWCP requested in a letter dated August 20, 2012 that appellant provide a medical report from
her treating physician which provided a specific diagnoses and an opinion explaining how the
condition was causally related to the May 9, 2011 employment incident. The Board finds that
the August 20, 2012 developmental letter to appellant did not fulfill OWCP’s obligation to assist
in the development of medical evidence as directed by the Board on the prior appeal. OWCP did
not develop the medical evidence by referral to a second opinion physician or obtain x-ray
evidence for review.16 On remand, it should refer appellant to a second opinion physician for
examination and evaluation, including x-ray evalution. After such further development as
deemed necessary, OWCP should issue a merit decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for a decision as to whether appellant
sustained an injury to her left upper back on May 9, 2011.

13

Vanessa Young, 55 ECAB 575 (2004).

14

Richard E. Simpson, 55 ECAB 490 (2004).

15

Peter C. Belkind, 56 ECAB 580 (2005); Melvin James, 55 ECAB 406 (2004).

16

See S.B., Docket No. 11-1332 (issued September 12, 2012).

4

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with the provisions of this decision.
Issued: May 14, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Des Plaines, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1351
Issued: November 1, 2012

Case Submitted on the Record

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

JURISDICTION
On June 7, 2012 appellant, through his attorney, filed a timely appeal of an April 25,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on May 20, 2011.
FACTUAL HISTORY
On May 20, 2011 appellant, then a 39-year-old special agent, filed a Form CA-1 alleging
that he injured his neck that morning when his vehicle was rear ended. In a May 25, 2011 letter,
OWCP advised him that medical evidence was needed to establish his traumatic injury claim and
1

5 U.S.C. § 8101 et seq.

gave him 30 days to submit a report from a qualified physician explaining how the traffic
accident led to a cervical condition.2
By decision dated June 28, 2011, OWCP denied appellant’s claim, finding that he failed
to submit any medical evidence to establish that a diagnosed injury resulted from the accepted
May 20, 2011 employment incident.
Appellant filed a request for reconsideration on February 27, 2012 and provided new
evidence.3 In a May 23, 2011 report, Dr. Erin E. Massey, a chiropractor, was informed by
appellant that he was involved in a May 20, 2011 motor vehicle collision and thereafter
experienced various head, neck, shoulder and back symptoms. She was also told that he
sustained residual thoracic pain stemming from a February 1, 2011 accident. Dr. Massey noted
that cervical, thoracic and lumbar x-rays were obtained and identified subluxation at C1, C5, T1,
T8, T12 and L4. On cervical examination, she noted limited range of motion (ROM),
apophyseal joint and spinous process tenderness between C1 and C6, suboccipital, trapezius,
scalenus, and levator scapulae trigger points and positive cervical compression, foraminal
compression and Jackson’s compression tests. On thoracic examination, Dr. Massey identified
costovertebral joint, spinous process and paravertebral muscle tenderness between T1 and T9
and a positive Schepelmann’s test. On lumbar examination, she observed spinous process,
lumbosacral joint and erector spinae muscle tenderness and positive Nachlas, Ely and right
Kemp signs. Cervical, thoracic and lumbar x-rays exhibited evidence of degenerative disc
disease and vertebral subluxation as well as thoracolumbar scoliosis. Dr. Massey diagnosed
C1-C7, T1-T12, and L1-L5 subluxation, neck sprain/strain, thoracic neuritis/radiculitis and
idiopathic scoliosis.4
On April 25, 2012 OWCP denied modification of the June 28, 2011 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,5
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.6 The employee must also establish that he sustained an

2

In a separate May 25, 2011 letter, OWCP informed appellant that the circumstances of his case suggested that
his injury may have been caused by a responsible third party and that he may be subject to FECA’s subrogation
provisions. See 5 U.S.C. §§ 8131-8132; 20 C.F.R. §§ 10.705-10.719. On May 31, 2011 appellant submitted a Form
CA-1045 indicating that he had yet to file a lawsuit.
3

Appellant indicated that he previously sustained an employment injury on February 1, 2011. OWCP File No.
xxxxxx885.
4

A July 13, 2011 report from Dr. Massey presented objective findings similar to those contained in her earlier
report and commented that appellant’s condition remained unchanged.
5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

6

R.C., 59 ECAB 427 (2008).

2

injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
The case record supports that appellant’s vehicle was rear ended on May 20, 2011. The
Board finds that he did not establish his traumatic injury claim because the medical evidence
does not establish that the accepted employment incident caused a spinal condition.10
Medical opinion, in general, can only be given by a qualified physician.11 As defined
under FECA, a “physician” includes a chiropractor only to the extent that her reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist.12 Subluxation means an incomplete dislocation,
off-centering, misalignment, fixation or abnormal spacing of the vertebrae which must be
demonstrable on any x-ray film to an individual trained in the reading of x-rays.13 In this case,
Dr. Massey diagnosed C1-C7, T1-T12 and L1-L5 subluxation based on x-ray findings and
physical examination results in a May 23, 2011 report. Therefore, she is a “physician” as
defined, but Dr. Massey did not explicitly attribute her diagnosed spinal conditions to appellant’s
federal employment. Instead, she appeared to merely communicate appellant’s belief that the
May 20, 2011 motor vehicle collision was the cause of injury.14 Assuming arguendo that this
7

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

T.H., 59 ECAB 388 (2008).

9

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

10

The Board notes that appellant initially filed for a neck condition. However, the case record indicates that he
amplified and expanded his claim to include allegations of thoracic and lumbar injuries. See Wilfred M. Hamilton,
41 ECAB 524 (1990).
11

Charley V.B. Harley, 2 ECAB 208, 211 (1949).

12

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

13

20 C.F.R. § 10.5(bb).

14

See P.K., Docket No. 08-2551 (issued June 2, 2009) (an award of compensation may not be based on a
claimant’s belief of causal relationship).

3

represented her opinion on causal relationship, Dr. Massey did not explain how the accepted
employment incident caused or contributed to a spinal subluxation.15 In the absence of
rationalized medical opinion evidence, appellant failed to meet his burden of proof.
Counsel contends on appeal that the April 25, 2012 decision is contrary to law and fact.
The Board has addressed the deficiencies of the medical evidence of record.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on May 20, 2011.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 1, 2012
Washington, DC

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

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

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

15

See Theresa M. Fitzgerald, 47 ECAB 689 (1996) (rationalized medical opinion evidence must related
diagnosed subluxation to employment incident). See also Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern
Reynolds, 45 ECAB 690, 696 (1994).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-871
Issued: November 2, 2009

Case Submitted on the Record

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

JURISDICTION
On February 12, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 14, 2008 and January 22, 2009 merit decisions denying her claim
for total disability. 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 met her burden of proof to establish that she sustained
total disability on or after May 28, 2008 due to her March 20, 2008 employment injury.
FACTUAL HISTORY
The Office accepted that on March 20, 2008 appellant, then a 41-year-old nursing
assistant, sustained a lumbar sprain when the chair she started to sit in slipped out from under her

and she landed on her knees and right hip. She returned to light-duty work with the employing
establishment on March 21, 20081 and she received compensation for periods of disability.2
The findings of March 24, 2008 x-rays of the lumbar spine were normal, and the findings
of x-rays of the pelvis from the same date showed bilateral asymmetric sacroiliitis with
inflammatory processes such as psoriatic arthritis and Reiter’s syndrome. A pelvic magnetic
resonance imaging (MRI) scan test completed on April 7, 2008 revealed no acute osseous
abnormality or joint effusion, but showed mild S1 spurring and suggested mild subchondral
sclerosis at the sacroiliac joint which could reflect chronic mild sacroiliitis. A lumbar MRI scan
from the same date showed normal results with no disc herniation, nerve root compression or
spondylolisthesis.
In an April 15, 2008 report, Dr. Louise Lamarre, an attending Board-certified emergency
physician, indicated that appellant reported that on March 20, 2008 she was sitting on a chair
which flipped forward and caused her to land on both knees and then on her right hip. She
indicated that she was treating appellant for lumbar, right hip, and knee pain and recommended
that she not lift more than 10 pounds, walk more than 15 minutes at a time, walk more than 2
hours per day or engage in kneeling, bending, twisting, pushing or pulling. Dr. Lamarre
diagnosed lumbar strain, right sacroiliitis and resolved knee contusion and opined that her
condition was directly related to the March 20, 2008 fall at work. She examined appellant again
on May 6, 2008 and noted that her condition was improving. Dr. Lamarre noted that appellant
had some tenderness and spasms with reduced pain and advised her to continue to work within
her work restrictions.
On May 29, 2008 appellant filed a claim for compensation (Form CA-7) alleging that she
sustained wage loss for periods beginning May 28, 2008 due to her March 20, 2008 employment
injury. On June 5, 2008 the Office requested that appellant submit additional factual and
medical evidence in support of her claim for work-related disability.
In a May 27, 2008 report, Dr. Lamarre noted that appellant continued to have medical
difficulties but also reported that she was being treated by a rheumatologist for fibromyalgia and
ankylosing spondylosis for which she received intravenous injections to help with inflammation.
She noted that this might explain why appellant was not progressing as smoothly as expected.
Dr. Lamarre noted that examination showed continued tenderness and recommended she
continue with her work restrictions.
In a May 28, 2008 report, Dr. Lamarre noted that appellant reported that she was forced
to perform work beyond her restrictions. She noted increased spasms and stiffness in the lumbar
region and more restricted back motion and stated that due to this increased symptomatology she
was taking appellant off work and increasing her medication. Dr. Lamarre noted that appellant’s
medication was a long-acting pain reliever which might cause drowsiness so it would not be safe
1

The modified job involved taking vital signs, setting up intravenous drips and distributing ice water. It did not
require lifting more than 10 pounds, walking more than 15 minutes at a time, walking more than 2 hours per day or
engage in kneeling, bending, twisting, pushing or pulling.
2

Appellant received continuation of pay for April 23, 24 and 28, 2008.

2

for her to work, especially working directly with patients. She advised appellant not to work
until she was rechecked on June 24, 2008.
On July 8, 2008 Dr. Bobby J. Meador, a Board-certified rheumatologist, noted that
appellant had severe pain related to spondyloarthropathy and fibromyalgia. He opined that she
could not work because of the severe pain but did not discuss the work incident of March 20,
2008 or report any findings on examination.3
In a July 14, 2008 decision, the Office denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained total disability on or
after May 28, 2008 due to her March 20, 2008 employment injury.
On July 22, 2008 Dr. Lamarre stated that appellant hurt herself at work on March 20,
2008 when she fell forward and injured her sacroiliac area and knees. She indicated that
appellant disclosed a past history of fibromyalgia, sacroiliitis and ankylosing spondylitis and
stated, “The injury that the patient sustained on [March 30, 2008] has created severe
aggravations of preexisting injury, which are fibromyalgia and ankylosing spondylitis.”
Dr. Lamarre stated that this diagnosis was supported by an April 7, 2008 MRI scan of the pelvis
which showed sclerosis at the sacroiliac joint reflecting mild sacroiliitis, possibly of a chronic
nature. She posited that the inflammation to appellant’s pelvic area at the sacroiliac joint caused
her such discomfort that she had no choice but to take her off work on May 28, 2008 and stated,
“In all probability, the injury that the patient sustained on [March 30, 2008] has caused the
aggravation of the preexisting spondylosis of her spine and sacroiliitis and also the patient has
sustained a lumbar strain in the process, which is confounded by the preexisting injury of
fibromyalgia.” Dr. Lamarre found no change in appellant’s examination findings and expanded
the diagnosed conditions beyond lumbar strain to include bilateral sacroiliitis and aggravation of
preexisting fibromyalgia and ankylosing spondylitis. She continued to support that appellant
was totally disabled as a result of her conditions.
On August 13, 2008 Dr. Lamarre released appellant to return to work part time with
restrictions. She stated that appellant sustained a lumbar strain on March 20, 2008 as a result of
the work injury but also had a history of spondylisthesis and fibromyalgia for which she was
being treated by a rheumatologist. Dr. Lamarre noted:
“The lumbar strain by this time is probably healed but the condition that she has
of spondylolisthesis and fibromyalgia is strongly overshadowing the lumbar
injury that she sustained at work. It has been extremely challenging to separate
the two. For that reason, the patient was kept off work from May 28, 2008 until
June 24, 2008.”
Appellant requested a telephone hearing with an Office hearing representative. At the
November 3, 2008 hearing, she acknowledged that she had been receiving treatment for
fibromyalgia, sacroiliitis and ankylosing spondylitis prior to the March 20, 2008 work incident
but asserted that the fall at work aggravated these conditions. Appellant indicated that during the
3

On March 24, 2008 Dr. Meador had recommended that appellant not lift more than 10 pounds and avoid
bending, stooping, pushing and pulling.

3

three to six months prior to March 20, 2008 incident she had been receiving treatment from
Dr. Meador, a rheumatologist. She stated that prior to March 20, 2008 she missed two to three
days a week due to her fibromyalgia, sacroiliitis and ankylosing spondylitis. Appellant indicated
that initially after March 20, 2008 she had restrictions on bending, stooping, pulling and pushing,
but did not have restrictions on walking. On April 15, 2008 her physician advised her not to
walk more than 15 minutes at time or 2 hours intermittently throughout the day. Appellant
claimed that she was required to walk 20 to 30 minutes at a time without sitting and variously
indicated that she was required to stand either 1 hour at a time or 2 to 3 hours at a time without
sitting.
Appellant submitted a November 18, 2008 report in which Dr. Christopher Mann, an
attending osteopath, advised that he had treated her since April 15, 2008 for bilateral sacroiliitis
with significant lower extremity radiculopathy. Dr. Mann noted that appellant had an accident
on March 20, 2008 when a chair in which she was sitting suddenly flipped over and she landed
on her knees and right hip causing significant pain in her lumbar and right pelvic region. He
noted that appellant indicated that this fall caused significant exacerbation of her low back
condition with increased extremity paresthesias and related spasticity across her lower back.
Dr. Mann advised that Dr. Lamarre referred appellant for additional evaluation and she was
noted to have significant inflammation of the sacroiliac joint which was suggestive of significant
arthritis or Reiter’s syndrome which would have caused significant chronic recurrent pain in the
sacroiliac and low back area. He stated that appellant had only been able to return to work on a
part-time basis with restrictions and stated:
“The patient requires continued pain medications and regular stretching and range
of motion program in order to maintain what basic function she has in her low
back at this time. Therefore, it is medically necessary that the patient continue to
work at only a four-hour work shift so as to allow therapeutic rest and nonweight
bearing time of the day so as to decrease inflammation in the low back and
sacroiliac joints.”4
In a January 22, 2009 decision, the Office hearing representative affirmed the Office’s
July 14, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which

4

Appellant submitted treatment forms dated November 13 and 15 and December 2, 2008 which contained a
diagnosis of aggravation of sacroiliitis. The forms provided that appellant could work on a part-time basis with
restrictions.
5

5 U.S.C. §§ 8101-8193.

4

compensation is claimed are causally related to the employment injury.6 The medical evidence
required to establish a causal relationship between a claimed period of disability and an
employment injury is rationalized medical opinion evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
The Office accepted that on March 20, 2008 appellant, then a 41-year-old nursing
assistant, sustained a lumbar strain when the chair she started to sit in slipped out from under her
and she landed on her knees and right hip. She returned to light-duty work with the employing
establishment on March 21, 2008.8 On May 29, 2008 appellant filed a Form CA-7 alleging that
she sustained wage loss for periods beginning May 28, 2008 due to her March 20, 2008
employment injury.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained total disability on or after May 28, 2008 due to her March 20, 2008 employment
injury.
Appellant submitted several reports, dated beginning May 28, 2008, in which
Dr. Lamarre, an attending Board-certified emergency physician, indicated that she was totally
disabled starting May 28, 2008 due to her continuing back problems. Dr. Lamarre indicated that
this work stoppage was justified because appellant exhibited worsening symptoms, including an
increase in lumbar spasms and stiffness and greater restriction of back motion.
Dr. Lamarre later posited that appellant’s disability starting July 22, 2008 could be
explained by her belief that she sustained a more serious injury on March 20, 2008 than had been
accepted by the Office. In a July 22, 2008 report, she indicated that appellant disclosed a past
history of fibromyalgia, sacroiliitis and ankylosing spondylitis and stated, “In all probability, the
injury that the patient sustained on [March 30, 2008] has caused the aggravation of the
preexisting spondylosis of her spine and sacroiliitis and also the patient has sustained a lumbar
strain in the process, which is confounded by the preexisting injury of fibromyalgia.”
Dr. Lamarre asserted that this diagnosis was supported by an April 7, 2008 MRI scan of the
pelvis which showed sclerosis at the sacroiliac joint reflecting mild sacroiliitis, possibly of a
chronic nature. She posited that the inflammation to appellant’s pelvic area at the sacroiliac joint
caused her such discomfort that she had no choice but take her off work on May 28, 2008.
6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

8

The modified job involved taking vital signs, setting up intravenous drips and distributing ice water. It did not
require lifting more than 10 pounds, walking more than 15 minutes at a time, walking more than 2 hours per day or
engage in kneeling, bending, twisting, pushing or pulling.

5

Dr. Lamarre’s reports, however, are of limited probative value on the relevant issue of the
present case in that she did not provide adequate medical rationale in support of her conclusion that
appellant’s total disability on and after May 28, 2008 was related to the March 20, 2008
employment injury.9 The Office has only accepted that appellant sustained a lumbar sprain on
March 20, 2008 and Dr. Lamarre has not adequately explained how appellant could have sustained
an aggravation of her preexisting fibromyalgia, sacroiliitis and ankylosing spondylosis on that
date, nor did she explain how the effects of the March 20, 2008 employment injury could have
caused total disability on and after May 28, 2008.
Dr. Lamarre did not describe the course and treatment of appellant’s back conditions prior
to March 20, 2008 in any detail.10 She did not explain the medical process through which the
March 20, 2008 employment incident would have aggravated appellant’s preexisting fibromyalgia,
sacroiliitis and ankylosing spondylosis. These conditions had caused periodic total disability
prior to March 20, 2008 and Dr. Lamarre did not explain why appellant’s disability on and after
May 28, 2008 was not due to the natural progression of the underlying fibromyalgia, sacroiliitis
and ankylosing spondylosis. She argued that April 7, 2008 diagnostic testing supported her
opinion on causal relationship but she did not compare diagnostic testing taken before and after
March 20, 2008. Dr. Lamarre asserted that appellant’s increased symptoms after May 28, 2008
supported a finding of work-related total disability, but she did not discuss physical examination
findings in any detail or explain why such findings were related to the March 20, 2008
employment injury.11
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained total disability on or after May 28, 2008 due to her March 20, 2008 employment injury.

9

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
10

Appellant had been treated by Dr. Meador, a rheumatologist, for three to six months prior to March 20, 2008
and she testified that fibromyalgia, sacroiliitis and ankylosing spondylosis kept her off work for two or three days
per week prior to March 20, 2008
11

The record contains a November 18, 2008 report in which Dr. Mann, an attending osteopath, discussed
appellant’s back condition at that time. However, Dr. Mann did not provide a clear opinion that he felt appellant
sustained total disability on or after May 28, 2008 due to her March 20, 2008 employment injury. Appellant
reported that she was forced to perform work beyond her restrictions, but she did not submit evidence to support this
assertion.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 22, 2009 and July 14, 2008 decisions are affirmed.
Issued: November 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7