United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flushing, NY, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1907
Issued: August 29, 2017

Case Submitted on the Record

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

JURISDICTION
On September 29, 2016 appellant, through counsel, filed a timely appeal from a June 10,
2016 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a recurrence of
total disability beginning October 25, 2013, adjudicated by OWCP under File No. xxxxxx781;
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.

and (2) whether appellant met his burden of proof to establish an employment-related injury on
October 24, 2013, in a claim adjudicated by OWCP under File No. xxxxxx352.
On appeal counsel asserts that OWCP should have provided a de novo determination
concerning File No. xxxxxx781 as a new occupational disease claim, and that the June 10, 2016
decision should be vacated and remanded to OWCP for further development of the occupational
disease claim, File No. xxxxxx352, to be followed by a de novo decision.
FACTUAL HISTORY
This case has previously been before the Board. In a June 10, 2009 decision in OWCP
File No. xxxxxx781, the Board found that appellant had not established a recurrence of total
disability on August 3, 2007 causally related to accepted cervical spondylosis without
myelopathy.3 The facts and circumstances as set forth in the Board’s prior decision are
incorporated herein by reference. The relevant facts are as follows.
On August 7, 2000 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that carrying heavy mail caused upper back pain. He
stopped work that day. OWCP accepted cervical spondylosis. Appellant returned to part-time,
limited-duty work on September 6, 2000.
OWCP adjusted appellant’s compensation
accordingly. OWCP thereafter accepted four recurrences of disability. In May 2006 appellant
began working three hours a day in a sedentary job. On October 2, 2007 he claimed a recurrence
of disability (Form CA-2a) for total disability beginning August 3, 2007. On January 3, 2008
OWCP denied appellant’s recurrence claim and a hearing representative affirmed this decision
on July 25, 2008. Appellant appealed to the Board and on June 10, 2009 the Board affirmed the
September 25, 2008 decision.
Following the August 2007 recurrence claim, appellant returned to modified duty for
three hours daily on September 26, 2007. OWCP adjusted his wage-loss compensation to reflect
his modified part-time letter carrier duties. On August 16, 2010 it accepted a May 10, 2010
recurrence of total disability. Appellant returned to modified duty as a registry scanner for three
hours a day on July 12, 2013.4 He received intermittent wage-loss compensation benefits after
that day.
On November 17, 2013 appellant filed a recurrence claim (Form CA-2a) alleging that he
had to handle hundreds of pieces of mail and had stopped work on October 25, 2013 because his
neck and shoulders hurt too much to work.5 The employing establishment controverted the
claim for recurrence. A customer services manager indicated that appellant’s modified duties
3

Docket No. 08-2473 (issued June 10, 2009).

4

In July 18, 2013 reports, Dr. Zhaoming Huang, a Board-certified physiatrist, advised that appellant could work
for three hours a day within restrictions. In August 15, September 3, and October 18, 2013 reports, she related that
repetitive job duties caused neck and right shoulder pain. Dr. Huang continued to limit appellant to three hours of
modified duty.
5

A time analysis form (Form CA-7a) signed by appellant and an employing establishment representative
indicated that appellant worked 2.36 hours on October 24, 2013 and did not work at all on October 25, 2013.

2

were below the physical limitations provided which were three hours total sitting, standing,
walking, pulling, pushing, and simple grasping intermittently; one hour bending and twisting
intermittently; no climbing stairs, kneeling, driving a vehicle, and reaching above shoulders, with
a 10-pound lifting restriction; and no pulling, pushing, or walking. The job was described as
clearing carriers at the registry cage with duties of obtaining a signature from the carriers, and
placing keys and a one-pound scanner from carriers into a cabinet.
The employing establishment indicated that on October 25, 2013 the manager of
customer service was to request appellant’s presence for a predisciplinary interview regarding
attendance. When the manager approached appellant, he clocked out, indicating that his neck
hurt and he had to see his physician. In an attached e-mail, he indicated that appellant then
called in saying he would be sick for a month. An attached October 25, 2013 letter-of-warning
cited appellant for failure to regularly report for duty.
On October 21, 2013 Dr. Huang advised that appellant had worsening right-sided neck
and shoulder pain after repetitive job duties. She noted physical examination findings and
advised that he was totally disabled from neck pain secondary to cervical sprain/strain with C4 to
C6 herniated discs, right C6 cervical radiculopathy, exacerbation of right traumatic shoulder
impingement syndrome, and left medial epicondylitis and left cubital tunnel syndrome.6 In an
October 25, 2013 treatment note, Dr. Huang’s associate, Dr. Tsai C. Chao, a Board-certified
physiatrist, advised that appellant’s right-sided neck and shoulder pain worsened after returning
to work the previous day. He diagnosed chronic neck pain exacerbation with multiple
intervertebral disc herniations and radiculopathy, bilateral shoulder impingement syndrome
aggravating right shoulder pain, bilateral lateral epicondylitis, and chronic discogenic lower back
pain with bilateral sacroiliac joint dysfunction, and possible left lumbosacral radiculopathy.
Dr. Chao found appellant totally disabled. On November 15, 2013 he diagnosed cervical sprain
and strain with C4-5 and C5-6 intervertebral disc herniation and right C6 cervical radiculopathy,
right shoulder pain with impingement, and left medial epicondylitis with left cubital tunnel
syndrome and right carpal tunnel syndrome. Dr. Chao found that appellant could work modified
duties. However, Dr. Huang completed a duty status report (Form CA-17) that day noting that
appellant could not work.7 On January 9, 2014 Dr. Huang related that appellant’s current job
required frequent right hand movement that increased dizziness, neck and right shoulder pain,
and pain and numbness in his hands. She reiterated Dr. Chao’s diagnoses and advised that
appellant could work his modified position, as tolerated, and that he should avoid repetitive and
stressful activities involving the right arm.

6

There is no indication that appellant has an accepted left or right upper extremity condition.

7

The record indicates that from December 14 through 27, 2013 appellant worked a total of eight, three-hour
shifts.

3

On January 16, 2014 appellant accepted a modified job for three hours daily with lobby
assistance duties for up to three hours, registry and scanning for less than 1.5 hours, and
distributing forms and supplies for less than three hours.8
In a February 4, 2014 disability slip, Dr. Chao advised that appellant was totally disabled
due to his diagnosed conditions. On February 7, 2014 he noted that appellant reported that he
had a “heavy” work assignment that required repetitive overhead lifting. Dr. Chao advised that
appellant could work his modified job as tolerated.
By letter dated February 24, 2014, OWCP advised appellant of the evidence needed to
develop his claim. In a response received on March 17, 2014, appellant asserted that register
window duties required constant movement of his hands and body which he felt would worsen
his symptoms. In answers to an OWCP factual development questionnaire, appellant indicated
that working at the register window required overhead work, dealing with heavy packages, and
caused severe neck, right shoulder, and left shoulder pain.
In a March 19, 2014 letter, the employing establishment advised that appellant’s job did
not require repetitive motions or overloaded mail and packages. It listed appellant’s duties as:
“[R]eceiving accountable items such as letter[-]sized mail, large envelope, and
parcels; accepting handheld scanner devices, and inserting them into the charging
stations; accepting keys and storing them in assigned compartments. These
activities when organized properly and executed as instructed can be completed
without exceeding the physical restrictions outlined by the employee’s medical
assessments.”
On March 28, 2014 Dr. Chao noted appellant’s continued complaint of dizziness, neck
pain, and right shoulder pain. Appellant remained unable to perform repetitive heavy overhead
lifting. Dr. Chao limited appellant to working at the register three hours per day with elbow
support and repetitive right arm movement no more than 180 times. He reiterated his diagnoses
and advised that appellant could return to part-time, limited-duty work as tolerated.
In an April 4, 2014 decision, OWCP denied appellant’s claim for a recurrence of total
disability beginning October 25, 2013, with intermittent periods thereafter until February 20,
2014 when he again stopped work. It found the medical evidence of record to be insufficient to
establish the claim.
Appellant requested reconsideration on May 7, 2014. He submitted medical evidence
including an April 1, 2014 electrodiagnostic study of the upper extremities. This testing was
interpreted by Dr. Huang as demonstrating right C6 and C7 radiculopathy, mild right carpal
tunnel syndrome, and left cubital tunnel syndrome.
8

On February 6, 2014 the employing establishment notified OWCP that on February 4, 2014 appellant refused to
perform registry duties. In a February 4, 2014 statement, appellant advised that from January 16 to February 3, 2013
he worked as a lobby director, and that on February 3, 2014 he was sent to a register window. He told the manager
that he could not work there because it required too much movement and would worsen his symptoms. Appellant
stopped work on February 4, 2014.

4

In April 4 and 11, May 30, and June 27, 2014 treatment notes, Dr. Chao reported
complaints of neck, right shoulder, and right wrist pain and his opinion that appellant could not
engage in repetitive heavy overhead lifting. He described physical findings, reiterated diagnoses,
and advised that appellant could work part-time modified duty as tolerated until June 27, 2014
when he found that appellant was totally disabled. Dr. Chao’s April 4 and May 2, 2014
disability slips also indicated that appellant was totally disabled. In duty status reports from
March 7 to July 25, 2014, he indicated that appellant could not work. Dr. Chao listed cervical
herniated discs with radiculopathy as the diagnosis due to the injury and included left cubital
tunnel syndrome as an additional disabling condition. In attending physician’s reports (Form
CA-20), he noted first seeing appellant on August 1, 2000. Dr. Chao diagnosed cervical
herniated discs with radiculopathy, right shoulder impingement, and right-sided carpal tunnel
syndrome. He checked a box marked “yes” indicating that the diagnoses were work related.
In a July 31, 2014 decision, OWCP noted that the conditions diagnosed by Dr. Chao had
not been accepted as work related and denied modification of the prior decision.
On August 28, 2014 appellant filed a traumatic injury claim (Form CA-1) for an
October 24, 2013 injury that occurred at 5:40 p.m. when he put a key scanner to his shoulder and
had sudden and severe shoulder and neck pain.9 In an attached statement, appellant indicated
that his job required working with a package key and scanner at a register window, and on
October 24, 2013 he had a sudden pain onset and reported it to a supervisor. OWCP adjudicated
the traumatic injury claim under File No. xxxxxx352. The employing establishment
controverted the claim, noting that appellant’s recurrence claim for October 24, 2013, in File No.
xxxxxx781, had twice been denied by OWCP. Appellant stopped work on October 24, 2013,
resumed modified duty on December 14, 2013, stopped again on February 18, 2014, and did not
return.
On September 9, 2014 appellant requested reconsideration of the July 31, 2014 decision
in File No. xxxxxx781. He provided a June 10, 2002 cervical spine computerized tomography
(CT) scan which showed degenerative changes, most significant at C5-6, with a herniated disc,
but no evidence of cord compression. Also submitted were a July 25, 2014 treatment note, an
August 22, 2014 duty status report, and an August 22, 2014 attending physician’s report in which
Dr. Chao repeated prior findings and conclusions. In an August 22, 2014 disability slip he noted
that appellant was totally disabled.
In a September 19, 2014 letter, OWCP informed appellant of the evidence needed to
support his traumatic injury claim, File No. xxxxxx352. On October 22, 2014 appellant noted
that, after the denial of his recurrence, his union told him to file a CA-1 form. He asserted that
“overload” duties of his modified job worsened his preexisting injury.
In a merit decision dated September 25, 2014, OWCP denied modification of its July 31,
2014 decision denying a recurrence of disability under File No. xxxxxx781.

9

Appellant indicated that the date of the notice was October 24, 2013, but he signed the claim form on
August 28, 2014.

5

Appellant requested reconsideration on October 9, 2014. Evidence from Dr. Chao
included several reports from August 22 to October 17, 2014 in which he repeated his findings
and conclusions.
In an October 2, 2014 report, Dr. Hal Rosenfeld, a chiropractor, noted that appellant had
not worked since October 24, 2013 due to a recurrence of disability. He examined appellant and
listed cervical x-ray findings of spondylosis at C3, C4, C5, and C6. Dr. Rosenfeld diagnosed
cervical spondylosis and advised that appellant’s symptoms and October 2013 recurrence of
disability were caused by the August 7, 2000 work injury.
Dr. Barry M. Katzman, a Board-certified orthopedic surgeon, provided an October 7,
2014 report. He noted appellant’s complaint of neck pain, and a history that he injured his neck
on August 1, 2000 and aggravated his condition on October 24, 2013 by lifting too much mail
and using his hand. Dr. Katzman noted limited range of neck motion and diagnosed recurrence
of cervical spondylosis. He advised that appellant had a neck problem that was going into his
shoulder which had become the issue.
On November 7, 2014 OWCP denied appellant’s traumatic injury claim in File No.
xxxxxx352, finding that the evidence of record did not support that the injury occurred as alleged
as there were significant deficiencies which cast doubt on his account of the factual events.
On November 11, 2014 appellant requested reconsideration of the September 25, 2014
decision. In reports dated November 14 and December 12, 2014 and January 9, 2015, Dr. Chao
indicated that appellant was unable to perform heavy overhead lifting and was totally disabled.
He diagnosed cervical herniated discs with radiculopathy, right shoulder impingement, and right
carpal tunnel syndrome. On form attending physician’s reports, he checked a form box marked
“yes” indicating that the conditions were employment related.10 Dr. Chao continued to submit
reports reiterating his findings and conclusions.
In January 2015, OWCP referred appellant to Dr. Hormozan Aprin, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding appellant’s recurrence claim in
File No. xxxxxx781. In a February 19, 2015 report, Dr. Aprin noted his review of the statement
of accepted facts and the medical record. He described appellant’s report of the August 7, 2000
work injury, and his complaint of constant neck, upper back, and shoulder pain with right arm
numbness. Cervical spine examination revealed limited range of motion with tenderness and
muscle spasm present. Bilateral shoulder forward flexion and abduction were also decreased
with tenderness on examination. Upper extremity strength was 5/5 with decreased sensation,
more noticeable on the left. Dr. Aprin advised that appellant continued to have residuals of the
accepted cervical spondylosis with partial disability related to his neck and bilateral shoulders.
He advised that appellant could perform a sedentary job with restrictions for four hours daily
with 15-minute breaks every two hours and no reaching above the shoulder level, and no
pushing, pulling, or bending. Occasional lifting and carrying were limited to 10 pounds.

10

Appellant continued to receive wage-loss compensation for five hours daily.

6

In an April 2, 2015 merit decision, OWCP denied modification finding the evidence of
record insufficient to alter its prior decisions denying appellant’s recurrence claim under File No.
xxxxxx781.
On April 5, 2015 appellant informed OWCP that the Social Security Administration
(SSA) and the Office of Personnel Management (OPM) had approved disability retirement. He
forwarded a March 21, 2015 letter from OPM advising that he was found to be disabled for a city
carrier position due to multi-level cervical degenerative disc disease with radiculopathy.
Dr. Rosenfeld provided chiropractic reports dated April 22 and June 29, 2015 noting that
appellant was being treated for a work-related neck condition with associated upper extremity
weakness. He advised that appellant had been totally disabled since February 22, 2014 and
could not reach, grasp, or perform any repetitive use of his hands.
In June 23 and 29, 2015 reports, Dr. Katzman noted limited neck motion on cervical
spine examination. He diagnosed recurrence of cervical spondylosis and advised that appellant
should avoid repetitive movement and overhead work, but could do a monitoring job.
Dr. Jason M. Gallina, a Board-certified orthopedic surgeon and an associate of Dr. Katzman,
advised on July 15, 2015 that appellant could not return to work because he could not lift above
shoulder height and could not carry over five pounds.
Dr. Chao continued providing reports describing appellant’s status, reiterating diagnoses,
and finding that he was totally disabled. On June 14, 2015 he noted appellant’s report that he
had retired. Dr. Chao diagnosed cervical sprain and strain with C4-5 and C5-6 disc herniations
and right C6 cervical radiculopathy, right shoulder pain with traumatic impingement syndrome,
and bilateral carpal tunnel syndrome. He advised that some of the diagnoses were due to
cumulative work activity, and it would not be practical for appellant to work.
On June 8, 2015 appellant had several diagnostic studies. A scoliosis x-ray series showed
a trace of leftward pelvis tilt and slight reversed S-shaped scoliosis of the thoracolumbar spine.
Cervical spine x-rays revealed spine curvature with left-sided facet arthropathy, moderate
degenerative disc disease at C5-6, and moderate multilevel foraminal stenosis. A computerized
tomography (CT) scan of the cervical spine noted multilevel degenerative changes. Lumbosacral
spine x-rays showed degenerative changes, and a lumbar magnetic resonance imaging (MRI)
scan revealed minimal disc bulges without significant spinal canal or neural foraminal stenosis.
In August 2015, appellant accepted a modified job offer and worked four hours daily
from August 5 to September 4, 2015, when he was told to go home pending orientation.11 He
received wage-loss compensation for four hours per day.
In October 8, 2015 correspondence, counsel requested reconsideration of the
November 7, 2014 decision denying appellant’s traumatic injury claim in File No. xxxxxx352.

11

The employing establishment initially offered appellant a modified job for four hours a day on April 17, 2015.
In June 1 and July 21, 2015 letters, OWCP advised him of the suitability of the position.

7

On October 19, 2015 he requested reconsideration of the April 2, 2015 decision denying
appellant’s recurrence claim in File No. xxxxxx781. Medical evidence submitted included
December 2, 2014 and February 17, 2015 reports from Dr. Katzman noting appellant’s
worsening radiating neck pain. Appellant had limited neck range of motion. He diagnosed
recurrence of cervical spondylosis that was going into his shoulder. In July 10, August 1, and
28, 2015 treatment notes, Dr. Gallina reported appellant’s complaint of radiating neck pain since
an October 25, 2013 recurrence of an August 1, 2000 injury, as well as radiating low back pain.
Findings included limited cervical and lumbar motion, positive straight leg raising and
Spurling’s tests, and absent sensation to light touch in both hands. He diagnosed cervical and
lumbar disc displacement without myelopathy. (352-rd11/10/15) On November 20, 2015
Dr. Gallina reiterated his findings and conclusions. On September 18, 2015 Dr. Chao noted that
appellant had fewer symptoms while in therapy, but had a psychological fear of aggravating his
condition. He restated his diagnoses and advised that appellant could not work.
A November 5, 2015 functional capacity evaluation indicated that appellant could not
perform work requiring static standing, forward bending, or rotation of his neck and trunk,
squatting, lifting from floor, or lifting arms above shoulder height. Repetitive activities and
motions increased his pain and symptoms.
On November 19, 2015 Dr. John S. Viattas, Board-certified in physiatry and pain
medicine, reported a history that appellant injured his neck and right shoulder on August 1, 2000,
that his symptoms gradually worsened, and that he was no longer working. He described spasm
and tenderness of the cervical spine with restricted motion and a positive Spurling’s maneuver
with right shoulder tenderness and mildly restricted motion. Light touch and pinprick were
decreased in the left C6-7 dermatomes, and grasp was weak bilaterally. Dr. Viattas diagnosed
cervical derangement with herniation and bilateral radiculopathy, left greater than right. He
advised that appellant was totally disabled for employment.
Appellant returned to modified duty for four hours daily on January 9, 2016.
In a nonmerit decision dated January 15, 2016 in File No. xxxxxx781, OWCP found the
evidence submitted insufficient to warrant merit review of its April 2, 2015 decision denying
appellant’s recurrence claim.
On March 21, 2016 appellant, through counsel, again requested reconsideration of the
April 2, 2015 decision denying appellant’s recurrence claim under File No. xxxxxx781. He
submitted a May 19, 2015 report from Dr. Katzman, which described appellant’s physical
examination findings and treatment. Counsel advised that appellant’s complaints of radiating
neck pain were causally related to the August 1, 2000 work injury and diagnosed recurrent
cervical spondylosis. Treatment notes dated April 7 and May 19, 2015 were attached.
In a November 7, 2015 report, Dr. Jordan Sudberg, a physiatrist, noted seeing appellant
for the first time. Appellant related injuring himself at work while lifting on August 1, 2000. He
reported radiating neck pain as well as shoulder, wrist, and hand weakness. Findings included
neck spasms and tenderness, and decreased thoracolumbar and cervical motion. Cervicalgia and
muscle spasm limited shoulder motion. Both arms and the right leg and foot had sensory
deficits. Dr. Sudberg diagnosed possible cervical disc herniation, cervical myofascial pain

8

syndrome, cervical radiculopathy, and shoulder pain. He advised that appellant was totally
disabled and opined that, within a reasonable degree of medical certainty, based on the history
appellant reported and his objective and subjective findings, the August 1, 2000 work injury
caused appellant’s diagnosed conditions. In January 16, 2016 reports, Dr. Sudberg diagnosed
cervical disc displacement, checked a form box marked “yes” indicating it was work related, and
advised that appellant could work limited duty for three to four hours daily.
Bilateral shoulder x-rays on January 20, 2016 demonstrated mild degenerative changes.
A January 30, 2016 MRI scan of the right shoulder revealed moderate tendinopathy consistent
with subcoracoid impingement and mild thickening which could reflect adhesive capsulitis. A
March 3, 2016 scoliosis series x-ray examination showed dextroscoliosis of the cervical,
thoracic, and lumbar regions.
After appellant’s January 9, 2016 return to work, Drs. Viattas, Gallina, and Sudberg
submitted status reports.
By decision dated June 10, 2016, issued under File Nos. xxxxxx781 and xxxxxx352,
OWCP determined that File No. xxxxxx352 should be adjudicated as an occupational disease
claim. It found that the evidence of record was insufficient to establish causal relationship for
appellant’s occupational disease claim under File No. xxxxxx352. OWCP further found that
none of the medical evidence submitted under either claim was sufficient to explain how
employment factors caused or aggravated appellant’s condition on October 25, 2013. As such,
the claimed recurrence under File No. xxxxxx781 remained denied.
LEGAL PRECEDENT -- ISSUE 1
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.12 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to the work-related
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.13
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 of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part

12

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

13

Id.

9

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.14
An employee who claims a recurrence of disability resulting from an accepted
employment injury has the burden of proof to establish that the disability is related to the
accepted injury. This burden requires furnishing medical evidence from a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical reasoning.15
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established a recurrence of total disability
beginning October 25, 2013 causally related to the accepted cervical spondylosis without
myelopathy in File No. xxxxxx781. He has not established that the nature and extent of his
injury-related condition changed so as to prevent him from continuing to perform his modified
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.16 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.17
Until the claimed recurrence of disability appellant was performing modified duties for
three hours daily. His wage-loss compensation was adjusted to reflect his modified duties.
Appellant reported that he had to handle hundreds of pieces of mail which caused neck and
shoulder pain that worsened on October 24, 2013. However, the evidence of record establishes
that appellant’s modified duties were three hours total sitting, standing, walking, pulling,
pushing, and simple grasping intermittently; one hour bending and twisting intermittently; no
climbing stairs, kneeling, driving a vehicle, and no reaching above shoulders, pulling, pushing,
or walking, with a 10-pound lifting restriction. The job was described as clearing letter carriers
at the registry cage with duties of obtaining a signature from the carriers, and placing keys and a
one pound scanner from the carriers into a cabinet.
The record contains a significant number of medical reports. None, however, is sufficient
to establish appellant’s burden of proof to establish a recurrence of disability on
October 25, 2013. None of the physicians exhibited knowledge of the specific duties of
appellant’s modified position or included any explanation of why the accepted cervical
spondylosis without myelopathy had changed such that he could no longer perform modified
duties. Most of the physicians diagnosed conditions that have not been accepted, and no

14

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
15

S.S., 59 ECAB 315 (2008).

16

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

17

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

10

physician provided a rationalized explanation as to why additional conditions should be found to
be employment related.18 Their opinions therefore are of diminished probative value.19
Dr. Huang advised that beginning on October 21, 2013, when appellant was still working
modified duties, he was totally disabled due to repetitive work movements including frequent
right-hand movement that caused increased dizziness, neck and right shoulder pain, and pain and
numbness in his hands. She diagnosed cervical and upper extremity conditions that have not
been accepted. As Dr. Huang did not exhibit knowledge of appellant’s modified job duties and
indicated that his disability was due to conditions that have not been accepted, her opinion is of
insufficient probative value to establish a recurrence of disability.20
Similarly, Dr. Chao’s opinion is of limited probative value. He submitted numerous
reports beginning on October 25, 2013 when he reported that appellant’s symptoms of rightsided neck and shoulder pain worsened after he returned to work the previous day. Dr. Chao
also diagnosed numerous cervical, upper extremity, and low back conditions which have not
been accepted. He did not include any explanation linking employment factors to these
diagnosed conditions, and based his opinion on an incorrect history, reporting that appellant’s
job duties involved heavy work that required repetitive overhead lifting whereas the modified
duties appellant was performing when he stopped work would not be characterized as heavy, and
overhead lifting was not required. Dr. Chao also did not explain how or why the accepted
cervical spondylosis prevented appellant from performing his modified duties. While he advised
in September 2015 that appellant had a psychological fear for reexacerbation of his condition and
could not work, the Board has long held that fear of future injury is not compensable.21
In a November 7, 2015 report, Dr. Sudberg also described an incorrect history of injury.
He indicated that appellant injured himself at work lifting something heavy on August 1, 2000.
As noted, this is not the history provided on appellant’s occupational disease claim of
August 7, 2000 when he indicated that carrying heavy mail caused neck pain. Moreover,
Dr. Sudberg also diagnosed conditions that have not been accepted. He did not provide medical
rationale explaining how appellant’s disability beginning October 25, 2013 was causally related
to the accepted cervical spondylosis.22
The Board also finds the opinions of Dr. Katzman, Dr. Gallina, and Dr. Viattas are
insufficient to meet appellant’s burden of proof. Dr. Katzman noted that appellant aggravated
his neck condition on October 24, 2013 by lifting too much mail and using his hand. None of the
conditions diagnosed by Dr. Gallina and Dr. Viattas have been accepted, and neither they nor
Dr. Katzman exhibited knowledge of the modified duties appellant was performing when he
stopped work, first in October 2013 and again in February 2014, nor did they provide a
18

Supra note 15.

19

Id.

20

Id.

21

I.J., 59 ECAB 408 (2008).

22

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

11

rationalized explanation of why the accepted cervical spondylosis caused a recurrence of
disability or why additional conditions should be accepted.
The various diagnostic studies of record did not provide a cause of any diagnosed
conditions. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.23
Likewise, Dr. Rosenfeld’s reports do not constitute probative medical evidence. Under
section 8101(2) of FECA, the term “physician” includes chiropractors only to the extent that
their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the
Secretary.24 However, Dr. Rosenfeld did not diagnose spinal subluxation based on the results of
an x-ray. His reports therefore do not constitute probative medical evidence as he does not meet
the statutory definition of a physician.25
In assessing medical evidence, the weight of a physician’s opinion is determined by the
opportunity for and thoroughness of the 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 used to explain the conclusions reached.26 For the reasons given, none of the
medical reports submitted in this case were of sufficient rationale to establish a recurrence of
disability commencing October 25, 2013 under File No. xxxxxx781.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking compensation under FECA27 has the burden of proof to establish
the essential elements of his claim by the weight of reliable, probative, and substantial
evidence,28 including that he or she is an “employee” within the meaning of FECA and whether
the claim was filed within the applicable time limitation.29 An employee must also establish that
he or she sustained an injury in the performance of duty as alleged and that disability from work,
if any, was causally related to the employment injury.30
23

Willie M. Miller, 53 ECAB 697 (2002).

24

5 U.S.C. § 8102(2); see D.S., Docket No. 09-860 (issued November 2, 2009).

25

See J.G., Docket No. 15-1468 (issued October 7, 2015).

26

L.G., Docket No. 09-1692 (issued August 11, 2010).

27

Supra note 2.

28

J.P., 59 ECAB 178 (2007).

29

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

30

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

12

OWCP regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.31
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, an 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. Second, an employee must submit medical
evidence to establish that the employment incident caused a personal injury.32
Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.33 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.34 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.35
ANALYSIS -- ISSUE 2
Although OWCP found in its June 10, 2016 that appellant’s claim filed on August 28,
2014, adjudicated under File No. xxxxxx352, constituted an occupational disease claim rather
than a traumatic injury, the Board finds that, based on his CA-1 claim form and his personal
statement, the claim was for a traumatic injury. Appellant alleged that on October 24, 2013,
while using a package key and scanner, he had a sudden onset of pain. OWCP regulations define
traumatic injury as a condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.36 Therefore the circumstances described by
appellant at the time he filed his claim satisfy the regulatory definition of a traumatic injury.37
The Board finds, however, that the medical evidence of record is insufficient to establish a
traumatic injury on October 24, 2013.
To establish a traumatic injury claim, a claimant’s burden of proof includes the necessity
of furnishing medical evidence from a physician who, on the basis of a complete and accurate
31

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

32

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

33

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

34

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

35

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

36

20 C.F.R. § 10.5(ee).

37

Id.

13

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.38
Dr. Huang advised beginning on October 21, 2013, when appellant was still working
modified duties, that he was totally disabled due to repetitive movements at work including
frequent right hand movement that caused increased dizziness, neck and right shoulder pain, and
pain and numbness in his hands. This report predates the alleged October 24, 2013 traumatic
injury. While she advised on January 9, 2014 that appellant could return to his modified
position, as tolerated, again she did not mention the alleged traumatic injury.
Similarly, Dr. Chao’s opinion is of limited probative value. He submitted numerous
reports beginning on October 25, 2013 when he reported that appellant’s symptoms of rightsided neck and shoulder pain worsened after he returned to work the previous day. Although
Dr. Chao diagnosed many cervical and upper extremity conditions that have not been accepted,
he did not explain how these conditions were caused by the claimed October 24, 2013 lifting
incident. He also based his opinion on an incorrect history, reporting that appellant’s job duties
involved heavy work that required repetitive overhead lifting whereas the modified duties
appellant was performing when he stopped work would not be characterized as heavy, and
overhead lifting was not required. While Dr. Chao continued to submit reports, noting that
appellant had a psychological fear for reexacerbation of his condition and advised that appellant
could not work, the Board has long held that fear of future injury is not compensable.39
The Board also finds the opinions of Dr. Katzman, Dr. Gallina, and Dr. Viattas
insufficient to meet appellant’s burden of proof to establish an October 24, 2013 employment
injury. Dr. Katzman noted that appellant aggravated his neck condition on October 24, 2013 by
lifting too much mail and using his hand and diagnosed recurrence of cervical spondylosis,
caused by an August 1, 2000 work injury. He exhibited no knowledge of the specifics of the
alleged October 24, 2013 employment injury and did not describe the mechanics of how this
incident aggravated the employment-related cervical spondylosis. None of the conditions
diagnosed by Dr. Gallina, Dr. Viattas, or Dr. Sudberg have been accepted, and they too did not
explain how the lifting incident of October 24, 2013 caused any specific condition.
The diagnostic studies of record are of limited probative value as they did not address the
cause of any diagnosed conditions.40 Also, as explained, because Dr. Rosenfeld is a chiropractor
who did not diagnose a spinal subluxation based on the results of an x-ray, his reports do not
constitute probative medical evidence.41
The Board, therefore, finds that the medical evidence of record is insufficient to establish
an October 24, 2013 traumatic injury under File No. xxxxxx352.
38

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

39

Supra note 21.

40

Supra note 23.

41

See supra notes 24-25, and accompanying text.

14

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of total disability
beginning October 25, 2013, in File No. xxxxxx781, and has not established an employmentrelated injury on October 24, 2013, in File No. xxxxxx352.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 29, 2017
Washington, DC

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

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

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

15


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE AIR FORCE, U.S. AIR
FORCE ACADEMY, Colorado Springs, CO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-45
Issued: June 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 3, 2007 appellant filed a timely appeal of the February 15, 2007 merit
decision of the Office of Workers’ Compensation Programs terminating her wage-loss
compensation benefits. She also requested review of the Office’s June 29, 2007 merit decision
denying her claim for wage-loss compensation for intermittent periods from January 25 through
March 9, 2006, and the June 29, 2007 nonmerit decision denying merit review of its April 14,
2006 decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to
review the merits of this appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective February 15, 2007 on the basis that she did not have any remaining disability
causally related to her accepted employment injuries; (2) whether appellant established
entitlement to wage-loss compensation for intermittent periods of disability from January 25
through March 4, 2006; and (3) whether the Office properly refused to reopen appellant’s case
for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On December 2, 2004 appellant, a 58-year-old equal employment specialist, sustained
injuries to her head, right hip and neck when she slipped and fell on ice. The Office accepted
appellant’s claim for concussion, cervical strain and lumbar strain.
Appellant was treated by Dr. Joyce Michael, a Board-certified osteopath, specializing in
the area of family practice, and Dr. James H. Evans, a clinical psychologist. She also received
periodic acupuncture treatments and steroid injections. On February 22, 2005 Dr. Evans
performed a neuropsychological evaluation, which showed evidence of mild mental impairment,
which he opined affected appellant’s workplace performance. On April 28, 2005 he diagnosed
reactive depression and anxiety. On May 4, 2005 Dr. Michael released appellant to return to
work four hours per day, provided that she was restricted from lifting more than 10 pounds;
pushing or pulling more than 20 pounds; and reaching above her shoulder, twisting, bending,
stooping, climbing or squatting. On May 11, 2005 appellant accepted a light-duty assignment as
a modified equal employment specialist, which complied with Dr. Michael’s work limitations.
The Office paid appellant compensation benefits for periodic disability.
On June 8, 2005 Dr. Michael recommended that appellant be limited to six hours per day,
three days per week, for one to two months. On June 15, 2005 she recommended that appellant’s
hours be increased to eight hours per day after two weeks. On July 11, 2005 Dr. Michael opined
that appellant could work three days per week, to be increased to four days per week after two
weeks. In an August 31, 2005 attending physician’s report, she noted that a magnetic resonance
imaging (MRI) scan of the lumbar spine revealed Grade 1 spondylolisthesis at L4-5.
Dr. Michael opined that the condition was causally related to appellant’s November 30, 2004
work-related injury. In an accompanying duty status report, she stated that appellant could work
eight hours per day, three days per week. On September 8, 2005 appellant signed a modified
light-duty assignment, which provided that she would work eight hours per day, three days per
week.
On June 2, 2005 Dr. Evans indicated that appellant was suffering from intractable
headache pain, and had resolving problems with attention, concentration and memory. On
June 28, 2005 he stated that appellant was struggling emotionally, due to family stress and her
husband’s health.
The Office referred appellant to Dr. Hendrick J. Arnold, a Board-certified orthopedic
surgeon, for an examination and an opinion as to whether appellant suffered residuals from her
accepted conditions and, if so, whether she was disabled. It also referred appellant to
Dr. Arthur C. Roberts, a Board-certified psychiatrist, for an examination and an opinion as to
whether appellant had ongoing cognitive dysfunction as a result of her closed-head injury.
In a second opinion report dated September 20, 2005, Dr. Roberts diagnosed mild
cognitive impairment due to head trauma, and postconcussive headaches, resolving. He
indicated that appellant met the standard for migraine, post-traumatic, and that she had
preexisting sarcoidosis. Noting that he was addressing only psychological issues, Dr. Roberts
stated that appellant did not suffer from a diagnosable emotional condition which interfered with
her ability to work. However, he opined that she did have residuals from the work-related injury,

2

such as confusion, forgetfulness and dizziness, which would make it difficult to teach seminars.
Dr. Roberts explained that these events were caused by microscopic damage to the structures
within the brain, which have to do with short-term memory. He agreed with the
recommendation that appellant should be restricted to working part time for four to five months,
then return to full-time employment. In an accompanying work capacity evaluation, Dr. Roberts
stated that appellant was adequately recovered and eager to work, and was able to work eight
hours per day “now.”
In a second opinion medical report dated September 21, 2005, Dr. Arnold diagnosed
lumbar and cervical strain, causally related to accepted employment factors. Based on his
examination, he stated that appellant had limited range of motion in her neck, and somewhat
limited lumbar motion, with tenderness in these areas. An April 29, 2005 MRI scan report
showed some disc dessication consistent with degenerative disc disease, which he opined were
age related. X-rays of the lumbar spine showed multilevel degenerative changes and fusion of
L5 transverse process. A March 20, 2005 MRI scan of the brain was “normal.” Dr. Arnold
stated that appellant had no significant physical limitations due to her accepted injury, although
she had subjective complaints of pain and headache. He opined that her workweek should be
gradually increased to eight hours per day, five days per week. A September 20, 2005 work
capacity evaluation reflected Dr. Arnold’s opinion that appellant was able to work eight hours
per day, provided that she was restricted from lifting 15 pounds, and took a 15-minute break
every hour. On September 26, 2005 Dr. Arnold stated that he had reviewed an August 22, 2005
MRI scan report subsequent to preparing his second opinion report. He noted mild cervical
degenerative changes, plus lumbar spondylolisthesis at L4-5, Grade 1, with severe facet
arthropathy. Dr. Arnold indicated that the MRI scan report did not provide a reason to modify
his recommendation of September 20, 2005.
In a report dated October 24, 2005, Dr. Evans opined that appellant was able to work
eight hours per day. He stated, “There are no neuron-psychological restrictions nor limitations
preventing [appellant] from working eight hours a day” in her usual job. Dr. Evans deferred to
Dr. Michael regarding recommended medical restrictions.
The Office sent copies of Dr. Roberts’ and Dr. Arnold’s second opinion reports to
Dr. Michael and Dr. Evans, asking whether they agreed with the recommendations of the two
physicians. On October 28, 2005 Dr. Evans indicated, by placing a checkmark in a box provided
on a form that he concurred with the reports. On November 1, 2005 Dr. Michael indicated, by
placing a checkmark in a similar box, that she also concurred with the recommendations.
On November 22, 2005 the Office asked Dr. Arnold to clarify his proposed timeline for
increasing appellant’s work hours. It also asked him to provide medical rationale explaining
why a gradual increase was necessary, rather than an immediate return to full-time employment.
On December 1, 2005 Dr. Arnold stated that physically, appellant was able to return to work 40
hours per week immediately, but that, psychologically, a gradual increase would be easier. He
recommended that appellant start at four hours per day, increasing to eight hours per day over a
three-month period.
The record contains an August 22, 2005 report of an MRI scan of the lumbar spine, and
an April 29, 2005 report of an MRI scan of the cervical spine. The record also contains the

3

following reports dated October 7, 2005: MRI scan of the lumbar spine; nerve conduction study
and electromyography (EMG) report; MRI scan of the cervical spine; report of bone
densitometry; x-ray of the skull; x-ray of the lumbar spine; and an x-ray of the cervical spine.
Appellant submitted a report dated October 7, 2005 from Dr. John C. Chiu, a treating physician,
who noted appellant’s complaints of intractable and increasing pain in her low back, legs, and
neck, as well as dizziness, frequent occipital headaches and poor memory. Dr. Chiu diagnosed
postconcussion syndrome, post-traumatic lumbar disc herniation with lumbar radiculopathy,
post-traumatic cervical disc herniation with cervical radiculopathy, and post-traumatic thoracic
strain/disc disease. He recommended a lumbar discectomy.
In a January 1, 2006 report, Dr. Michael diagnosed lumbar radiculopathy, and she found
tenderness in the lumbar spine and right leg weakness. She stated that appellant needed to work
from home four hours per day, five days per week. On January 9, 2006 Dr. Michael stated that,
after reviewing the October 7, 2005 EMG report, she did not concur with Dr. Arnold’s second
opinion report, noting that appellant had increased pain in the lower back, with radiculopathy.
Appellant filed claims for compensation for intermittent wage loss for the period
November 13, 2005 through January 21, 2006. She claimed compensation for 32 hours of lost
wages for each of the following periods: November 13 through 26, November 27 through
December 10, 2005; December 25, 2005 through January 7, 2006; and January 8 through
21, 2006. By letter dated March 10, 2006, the Office informed appellant that the information
submitted was insufficient to support disability during the periods claimed. Based on the time
frames provided by Dr. Arnold, the Office advised appellant that 112 of the 128 hours claimed
would be deferred, pending receipt of additional information. The record reflects that appellant
underwent laparoscopic gastric bypass surgery in California on January 31, 2006. On March 16,
2006 Dr. Michael stated that, due to complications from the gastric bypass surgery, appellant
would be disabled from work for 12 weeks.
By decision dated April 14, 2006, the Office denied appellant’s claims for compensation
for the following periods: November 13 through 26 (24 hours); November 27 through
December 10, 2005 (24 hours); December 25, 2005 through January 7, 2006 (32 hours); and
January 8 through 21, 2006 (32 hours).
On June 27, 2006 Dr. Michael indicated that appellant’s back pain was becoming more
and more debilitating. In a July 14, 2006 duty status report, she opined that appellant could work
four hours per day, three days per week; however, she should be restricted from lifting or
carrying more than five pounds, and must be permitted to change positions frequently.
The Office found a conflict in medical opinion between Dr. Michael and Dr. Arnold as to
the number of hours appellant was capable of working. In order to resolve the conflict, the
Office referred appellant, together with the entire medical record and statement of accepted facts,
to Dr. Jeffrey Sabin, a Board-certified orthopedic surgeon. In a report dated July 20, 2006,
Dr. Sabin diagnosed cervical and lumbar strain. He noted that appellant had some mild
degenerative changes in the cervical and lumbar spine, which were preexisting to the accepted
injury. Dr. Sabin stated that there was no objective reason why appellant could not work eight
hours per day, and that her physical limitations were self-imposed. Examination revealed normal
cervical and lumbar lordosis; good range of motion in extremities, without crepitus, instability or

4

atrophy; and good internal and external rotation of hips without pain. Cervical range of motion
was normal, except for rotation to the right, which was diminished by 60 percent. Lumbar range
of motion revealed increased pain with extension to 20 degrees. Dr. Sabin found pain to
palpation at the L5-S1 paraspinal musculature. X-rays and MRI scans reveal no severe disc
disease. The L5-S1 area was sacralized, and L4-5 appeared to be the last motion segment.
Dr. Sabin stated that it was reasonable for appellant to work toward increasing her four-hour per
day schedule (three days per week) to full time, over a two- to three-month period.
By letter dated August 23, 2006, the Office asked Dr. Sabin to clarify his July 20, 2006
report by indicating whether appellant had residuals of her work-related injury. On August 30,
2006 Dr. Sabin stated that there were no objective findings to support residuals of appellant’s
accepted conditions of cervical and lumbar strain.
Appellant submitted a report dated September 5, 2006 from Dr. Michael C. Sparr, a
Board-certified physiatrist, who diagnosed chronic, severe lumbosacral and lower extremity
pain, “which appears to be secondary to a November 30, 2004 work-related injury.” Dr. Sparr
found moderate to severe foraminal stenosis at two levels in the lumbar spine, and evidence of
spondylolisthesis in a lumbar flexion film. He noted excellent range of motion in forward
flexion, but exquisite tenderness over the right ilioinguinal ligament, hip flexors and pubic
symphysis. Dr. Sparr stated, “At this time her diagnoses are not entirely clear.” He did not
express an opinion as to appellant’s ability to work. On October 5, 2006 Dr. Sparr noted that
appellant had experienced a substantial decrease in pain, and that “work restrictions are not
necessary.” On November 3, 2006 he indicated that appellant was 80 percent improved and
experiencing minimal pain.
On December 6, 2006 the Office issued a proposed notice of termination of wage-loss
compensation benefits, stating that the weight of medical evidence, which was represented by the
opinion of Dr. Sabin, demonstrated that appellant had no continuing injury-related disability as a
result of her accepted injury. “It provided appellant 30 days to submit additional evidence in
support of her continuing disability.
Appellant submitted notes from Dr. Evans dated December 12, 2006, and January 9
and 23, 2007. Dr. Evans stated that appellant had retired from federal service and was managing
quite well from a psychological perspective.
By decision dated February 15, 2007, the Office terminated appellant’s wage-loss
compensation. It noted that appellant’s medical benefits referable to the employment injury
remain uninterrupted.1

1

The Board notes that the Office issued a decision dated January 29, 2007, which terminated appellant’s medical
and wage-loss compensation. On February 15, 2007 the Office amended its January 29, 2007 decision, terminating
only appellant’s wage-loss benefits.
The Board also notes that the Office terminated appellant’s medical benefits on April 10, 2007. However, by
decision dated July 24, 2007, an Office hearing representative reversed the decision terminating appellant’s medical
benefits.

5

Appellant submitted attending physician reports from Dr. Michael for the period
August 5 through November 25, 2005. On October 26, 2005 Dr. Michael stated that appellant
could work 28 hours per week with restrictions, and estimated that her recovery date would be
December 30, 2005. On November 25, 2006 she opined that appellant could work 28 hours per
week, with a gradual increase in hours, as tolerated. Dr. Michael also stated that appellant might
need surgery on the lumbar spine.
On April 13, 2007 appellant submitted a request for reconsideration of the April 14, 2006
decision denying her claim for compensation for intermittent periods between November 13,
2005 and January 21, 2006. In support of her request, she submitted duplicates of duty status
reports from Dr. Michael, which were previously received by the Office. Appellant also
submitted a time analysis form for the period October 16 through 27, 2005, reflecting that she
missed 32 hours of work during that time.
On April 23, 2007 appellant submitted a separate claim for compensation for 80 hours of
wage loss for the period January 25 through March 4, 2006. On May 2, 2007 the Office
informed appellant that the information submitted in support of her claim was insufficient, based
on Dr. Arnold’s reports, which indicated that appellant should have returned to full duty by the
end of December 2005. It provided appellant 30 days to submit additional information or
evidence.
Appellant submitted a report dated March 16, 2007 from Dr. Sparr, who noted appellant’s
report of a 60 percent overall decrease in pain since her last visit on November 3, 2006.
Dr. Sparr diagnosed “relatively stable lumbosacral pain with intermittent radiculitis.” Appellant
informed Dr. Sparr that she was doing well with no pain and would like to try going on her own
for a while, as she would be busy with her retirement. On April 27, 2007 Dr. Sparr reported
possible mild right radiculitis and recommended additional physical therapy.
By decision dated June 29, 2007, the Office denied appellant’s claim for compensation
for the period January 25 through March 4, 2006. In a separate decision dated June 29, 2007, the
Office denied appellant’s request for merit review of its April 14, 2006 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3
The Federal Employees’ Compensation Act4 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

5 U.S.C. §§ 8101-8193, 8123(a).

6

Office shall appoint a third physician who shall make an examination.5 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.6
ANALYSIS -- ISSUE 1
The Office determined that a conflict of medical opinion existed regarding the nature and
extent of any ongoing disability due to the work injury of December 2, 2004, based on the
opinions of Dr. Michael, appellant’s physician, who supported an ongoing employment-related
disability, and Dr. Arnold, a second opinion physician, who opined that the employment-related
disability had resolved, and that her work schedule should be increased from four to eight hours
per day over a three-month period. The Office properly referred appellant to Dr. Sabin for an
impartial medical examination to resolve the conflict.
In his July 20, 2006 report, Dr. Sabin provided an accurate history of injury and
treatment, and indicated that he had reviewed the entire medical record. Following a thorough
examination of appellant, he diagnosed cervical and lumbar strain. Dr. Sabin noted that
appellant had some mild degenerative changes in the cervical and lumbar spine, which were
preexisting to the accepted injury. Examination revealed normal cervical and lumbar lordosis;
good range of motion in extremities, without crepitus, instability or atrophy; and good internal
and external rotation of hips without pain. Cervical range of motion was normal, except for
rotation to the right, which was diminished by 60 percent. Lumbar range of motion revealed
increased pain with extension to 20 degrees. Dr. Sabin found pain to palpation at the L5-S1
paraspinal musculature. X-rays and MRI scan reveal no severe disc disease. The L5-S1 area
was sacralized, and L4-5 appeared to be the last motion segment. Dr. Sabin opined that there
was no objective reason why appellant could not work eight hours per day, and that her physical
limitations were self-imposed. He stated that it was reasonable for appellant to work toward
increasing her four-hour-per-day schedule (three days per week) to full time, over a two- to
three-month period. In a supplemental report dated August 30, 2006, Dr. Sabin stated that there
were no objective findings to support residuals of appellant’s accepted conditions of cervical and
lumbar strain. The Board finds that the Office properly relied on the impartial medical
examiner’s report in determining that appellant’s accepted employment-related disability had
resolved by February 15, 2007. Dr. Sabin’s opinion is sufficiently well rationalized and based
upon a proper factual background. He not only examined appellant but also reviewed her
medical records. Dr. Sabin explained that, although x-rays and MRI scan indicated other
degenerative changes in the spine, they were attributable to her preexisting conditions and not
related to her accepted work injury.
As noted above, in situations where there are opposing medical reports of virtually equal
weight and rationale, and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on

5

5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

6

Manuel Gill, 52 ECAB 282 (2001).

7

a proper factual background, must be given special weight.7 Accordingly, the Office properly
accorded special weight to the impartial medical examiner’s findings.
The Board also finds that the evidence established that appellant was no longer disabled
from her accepted concussion as of February 15, 2007. The Office referred appellant to
Dr. Roberts, a Board-certified psychiatrist, for an examination and an opinion as to whether she
had ongoing cognitive dysfunction as a result of her closed-head injury. On September 20, 2005
Dr. Roberts diagnosed mild cognitive impairment due to head trauma, and postconcussive
headaches, resolving. He indicated that appellant met the standard for migraine, post-traumatic
and that she had preexisting sarcoidosis. Noting that he was addressing only psychological
issues, Dr. Roberts stated that appellant did not suffer from a diagnosable emotional condition
which interfered with her ability to work. On October 24, 2005 appellant’s psychologist,
Dr. Evans, opined that appellant was able to work eight hours per day. He stated, “There are no
neuron-psychological restrictions nor limitations preventing [appellant] from working eight
hours a day” in her usual job. On October 28, 2005 Dr. Evans agreed with Dr. Roberts’ opinion.
There is no evidence of record that supports the conclusion that appellant was disabled due to her
accepted concussion on February 15, 2007.
Appellant did not submit any new medical evidence sufficient to overcome the special
weight accorded to the impartial medical examiner, or to create a new conflict. She provided a
report dated September 5, 2006 from Dr. Sparr, who diagnosed chronic, severe lumbosacral and
lower extremity pain, “which appears to be secondary to a November 30, 2004 work-related
injury.” However, Dr. Sparr did not express an opinion as to appellant’s ability to work.
Therefore, his opinion is of diminished probative value. On October 5, 2006 Dr. Sparr noted that
appellant had experienced a substantial decrease in pain, and that “work restrictions are not
necessary.” On November 3, 2006 he indicated that appellant was 80 percent improved and
experiencing minimal pain. These reports do not support appellant’s claim of disability.
As the weight of the medical evidence establishes that appellant’s accepted work-related
disability had resolved as of February 15, 2007, the Office properly terminated appellant’s wageloss compensation.
LEGAL PRECEDENT -- ISSUE 2
A claimant has the burden of proving by a preponderance of the evidence that she is
disabled for work as a result of an accepted employment injury, and is required to submit
medical evidence for each period of disability claimed.8 Whether a particular injury causes an
employee to be disabled for employment, and the duration of that disability, are medical issues.9
The issue of whether a particular injury causes disability for work must be resolved by
competent medical evidence.10
7

Id.

8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

10

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

8

The Board will not require the Office to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.11
Section 8123(a) of the Act provides that, “[i]f there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”12
ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for concussion, cervical strain and lumbar strain.
The issue on appeal is whether appellant had any disability between January 25 and March 4,
2006, causally related to her accepted condition, entitling her to wage-loss compensation. The
Board finds that this case is not in posture for a decision on this issue, as there exists an
unresolved conflict in medical opinion.
In her numerous reports, appellant’s treating physician, Dr. Michael, expressed her
opinion that appellant was unable to return to full-time employment. On August 31, 2005 she
opined that appellant was able to work eight hours per day, three days per week, with
restrictions. Dr. Michael noted that a magnetic resonance imaging (MRI) scan of the lumbar
spine revealed Grade 1 spondylolisthesis at L4-5, and opined that the condition was causally
related to appellant’s November 30, 2004 work-related injury.
On September 21, 2005 the physician for the Office, Dr. Arnold, diagnosed lumbar and
cervical strain, causally related to accepted employment factors. Based on his examination, he
stated that appellant had limited range of motion in her neck, and somewhat limited lumbar
motion, with tenderness in these areas. Dr. Arnold stated that appellant had no significant
physical limitations due to her accepted injury, although she had subjective complaints of pain
and headache. He opined that her workweek should be gradually increased to 8 hours per day, 5
days per week, over a 3-month period, provided that she was restricted from lifting 15 pounds,
and took a 15-minute break every hour. On September 26, 2005 Dr. Arnold stated that he had
reviewed an August 22, 2005 MRI scan report subsequent to preparing his second opinion report.
He noted mild cervical degenerative changes, plus lumbar spondylolisthesis at L4-5, Grade 1,
with severe facet arthropathy. Dr. Arnold indicated that the MRI scan report did not provide a
reason to modify his recommendation of September 21, 2005.
On January 1, 2006 Dr. Michael, based on her review of a previously diagnosed lumbar
radiculopathy, recommended that appellant work from home four hours per day, five days per
week. On January 9, 2006 she noted her review of an EMG report which caused her to disagree
with Dr. Arnold’s second opinion report, finding that appellant had increased pain in the lower
back, with radiculopathy.
11

Fereidoon Kharabi, supra note 8.

12

5 U.S.C. § 8123(a).

9

The Board finds that there is a conflict in medical opinion between Dr. Michael and
Dr. Arnold as to whether appellant was partially disabled as a result of her accepted injury for the
period January 25 through March 4, 2006. On the one hand, Dr. Michael opined that appellant
was unable to work a full 40-hour week during the period in question. On the other hand,
Dr. Arnold projected that appellant would be able to return to full-time employment by late
December 2005. Section 8123 of the Act provides that, if there is a disagreement between the
physician making the examination for the United States and the employee’s physician, the Office
shall appoint a third physician who shall make an examination.13 The case, therefore, will be
remanded for an impartial medical specialist to resolve the conflict in medical opinion, and to
determine which of appellant’s diagnosed conditions are causally related to the July 31, 2004
employment injury. On remand, the Office should refer the case record and a statement of
accepted facts to an appropriate physician pursuant to section 8123(a) of the Act. Following this
and such further development as the Office deems necessary, it shall issue a de novo decision.
LEGAL PRECEDENT -- ISSUE 3
Section 10.608(a) of the Code of Federal Regulations provides that a timely request for
reconsideration may be granted if the Office determines that the employee has presented
evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).14 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; or (2) advances a relevant legal
argument not previously considered by the Office; or (3) constitutes relevant and pertinent new
evidence not previously considered by the Office.15 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.16
Evidence that repeats or duplicates evidence already in the case record has no evidentiary
value and does not constitute a basis for reopening a case.17
ANALYSIS -- ISSUE 3
Appellant’s April 13, 2007 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).
13

5 U.S.C. § 8123.

14

20 C.F.R. § 10.608(a).

15

20 C.F.R. § 10.608(b)(1) and (2).

16

20 C.F.R. § 10.608(b).

17

See Helen E. Paglinawan, 51 ECAB 591 (2000).

10

In support of her request for reconsideration, appellant submitted duplicates of medical
reports, which were previously received by the Office. As the documents are duplicative, they
do not constitute new evidence not previously considered by the Office.18 Appellant also
submitted a time analysis form for the period October 16 through 27, 2005, reflecting that she
missed 32 hours of work during that time. These documents do not address the relevant issue
decided by the Office on April 14, 2006, namely, whether the medical evidence established that
appellant was partially disabled during the alleged period, due to the accepted employment
injury. The Board finds that these documents do not constitute relevant and pertinent new
evidence not previously considered by the Office.19 Therefore, the Office properly determined
that this evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her March 14, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective February 15, 2007. It also finds that this case is not in posture
for a decision with regard to the issue of whether appellant established that she was entitled to
wage-loss compensation for intermittent periods between January 25 and March 4, 2006, as there
exists an unresolved conflict in medical evidence. The Board further finds that the Office
properly refused to reopen appellant’s case for further review of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2007 decision of the Office of
Workers’ Compensation Programs terminating appellant’s compensation benefits, and the
June 29, 2007 decision denying appellant’s request for reconsideration, are affirmed. It is further

18

See Susan A. Filkins, 57 ECAB 630 (2006).

19

Id.

11

ordered that the Office’s June 29, 2007 decision denying appellant’s claim for compensation for
intermittent periods between January 25 and March 4, 2006 is set aside and remanded for action
in accordance with the provisions of this decision.
Issued: June 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Cumberland, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-214
Issued: May 25, 2012

Case Submitted on the Record

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

JURISDICTION
On November 9, 2011 appellant filed a timely appeal from an August 23, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying 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.2
ISSUE
The issue is whether appellant established that he sustained a traumatic injury in the
performance of duty on June 22, 2011.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 23, 2011 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. §§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On July 5, 2011 appellant, then a 43-year-old distribution process worker, filed a
traumatic injury claim alleging that on June 22, 2011 he sustained left knee pain with some
swelling due to pulling orders and getting up on the forklift. On the back of the form, the
employing establishment noted that it was unknown whether an injury was sustained in the
performance of duty as he did not report the incident until 12 days after it allegedly occurred.
By correspondence dated July 18, 2011, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised as to the medical and factual
evidence required and given 30 days to submit this information.
In response to OWCP’s request for additional evidence, appellant submitted office
medical notes, work restrictions, objective testing and factual evidence. He noted that he was
pulling orders in Building 59 when he felt his left knee start to get tight. Appellant tried
stretching it, but it did not help. When he went to get up on the forklift he felt a pop behind his
left knee. As to why he waited 12 days to report the incident, appellant stated that when he saw
his physician on June 27, 2011 he was told that he had patellofemoral syndrome for which there
was no known cause.
In OWCP’s medical treatment notes dated July 1 to August 3, 2011, Dr. Daniel P. Hely, a
treating Board-certified orthopedic surgeon, provided physical findings and a medical history.
On July 7, 2011 he noted no effusion and a stable ligament on examination and diagnosed
resolving knee sprain. Dr. Hely reported a diagnosis of patellar tendinitis symptoms on
August 1, 2011. Cori M. Davis, a certified physician’s assistant completed the notes dated
July 21, 20113 which provided physical findings, noted normal objective testing and diagnosed
left knee pain.
A July 5, 2011 magnetic resonance imaging (MRI) scan of the left knee noted a clinical
history of knee pain, but found no evidence internal derangement of the knee.
In a July 13, 2011 attending physician’s report (Form CA-20), Dr. Hely listed an injury
date of June 22, 2011 and history of left knee pain, which was resolving. He checked “yes” to
the question of whether the diagnosed condition was employment related. Under the explanation
section of the form, Dr. Hely stated that appellant indicated that he had sustained a twisting
injury. He reported that an MRI scan revealed no abnormality.
On August 15, 2011 OWCP received a June 30, 2011 triage note advising that appellant
had called to say that the swelling in his knee had gone down. In a July 12, 2011 duty status
report (Form CA-17), Dr. Don Potter, a treating physician, noted a June 22, 2011 injury,
diagnosed left knee effusion and provided work restrictions.
By decision dated August 23, 2011, OWCP denied appellant’s claim on the grounds that
he did not establish injury as alleged. It found that the evidence was insufficient to establish that
the June 20, 2011 incident occurred as alleged because appellant did not provide a detailed
3

This report was countersigned by a physician, but the signature is illegible.

2

factual statement explaining what took place. Additionally, it found the medical evidence
insufficient to establish that he sustained an injury in the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.7
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.8 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.9
ANALYSIS
Appellant filed a claim alleging that he sustained a left knee injury on June 22, 2011 in
the performance of duty. He sought medical treatment subsequent to the injury based on a
June 30, 2011 triage note indicating that his knee swelling had gone down. The record also
contains medical notes and a work restriction form dated July 1 to August 3, 2011 which listed
an injury date of June 22, 2011. Appellant completed the form indicating that his injury occurred
on June 22, 2011. He also provided a statement in response to OWCP’s July 18, 2011 letter
providing more detail on how the injury occurred. The employing establishment stated that it
was unknown as to whether the injury was employment related as appellant had waited 12 days
before informing it of the incident. OWCP denied his claim for a traumatic injury on the basis
that he had provided no supporting evidence that the incident occurred as alleged.
The Board finds that appellant has submitted sufficient evidence to establish the June 22,
2011 employment incident. Appellant provided a consistent history of injury on his claim form
and in his statement. He was engaged in pulling orders and getting on a forklift. Appellant also
4

5 U.S.C. § 8101 et seq.

5

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

6

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

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.

3

sought medical treatment contemporaneous with the alleged injury.
The employing
establishment does not dispute the employment activity in which he was engaged at the time of
the alleged injury. It only noted the delay in reporting the incident. The Board finds that there
are no inconsistencies so as to cast serious doubt on the occurrence of the June 22, 2011
employment incident.
The Board finds, however, that the medical evidence of record is not sufficient to
establish that a left knee condition resulted from the June 22, 2011 employment incident. The
only medical evidence of record is Dr. Hely’s July 13, 2011 form report. This report provided a
diagnosis of left knee pain which was resolving and checked “yes” to the question of whether it
was employment related. It is well established that a physician’s opinion on causal relationship
that consists of checking “yes” to a form question is of diminished probative value.10 Dr. Hely
did not describe the employment incident other than noting it was a twisting incident. The
remaining medical notes from him, the MRI scan report and duty status report from Dr. Potter
fail to provide a history of the employment injury or a physician’s opinion explaining how
appellant sustained an injury to his left knee as a result of the accepted June 22, 2011 incident.
None of the reports contain any rationale or explanation of the mechanism of injury arising from
the employment incident on June 22, 2011.11
The notes from Mr. Davis, the physician’s assistant, are of no probative value as he is not
a physician under FECA.12
Thus, appellant has failed to establish that he sustained a left knee injury due to the
June 22, 2011 employment incident
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. As appellant has failed to submit any probative medical evidence
establishing that he sustained an injury in the performance of duty on June 22, 2010 he has failed
to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has established that the employment incident occurred at
the time, place and in the manner alleged. The Board further finds that he failed to submit
sufficient medical opinion evidence to establish a left knee condition.

10

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

11

See S.E., Docket No. 08-2214 (issued May 6, 2009); S.D., 58 ECAB 713 (2007); Cecelia M. Corley, id. (where
the Board found that a medical opinion not fortified by medical rationale is of little probative value).
12

5 U.S.C. § 8101(2); see also A.C., Docket No. 11-1800 (issued March 21, 2012).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2011 is affirmed, as modified.
Issued: May 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5