United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Richmond, CA, Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 09-28
Issued: September 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 3, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated November 9, 2007 and May 19 and September 29,
2008 denying modification of its April 18, 1997 loss of wage-earning capacity determination.
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 his burden of proof to establish that a modification of
the Office’s April 18, 1997 loss of wage-earning capacity determination is warranted and that he
is entitled to wage-loss compensation from August 13 through October 31, 2007.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated November 9, 1999, the Board
affirmed an April 18, 1997 Office loss of wage-earning capacity determination.2 The facts and
the law of the case in the Board’s prior decision are incorporated herein by reference.
On June 3, 1994 appellant, then a 35-year-old mail handler, sustained a right shoulder
strain while in the performance of his duties. He underwent surgery to repair a torn right rotator
cuff on September 14, 1995. On October 27, 1995 appellant returned to work in a limited-duty
capacity. On January 8, 1996 the Office accepted a work-related right shoulder strain sustained
on October 28, 1995.3 On April 18, 1997 it issued a loss of wage-earning capacity based on his
reemployment and actual earnings as a modified mail handler on October 27, 1995. On
November 21, 1999 appellant began working a limited-duty position with permanent work
restrictions of no pushing or pulling with the right arm, no lifting above the shoulders and no
lifting over 15 pounds with the right arm.
On October 31, 2007 appellant filed a claim for lost wages from August 13 through
October 31, 2007.
By decision dated November 9, 2007, the Office denied modification of its April 18,
1997 loss of wage-earning capacity decision and denied appellant’s wage-loss claim for
August 13 to October 31, 2007. It found that the record established that the employing
establishment did not allow him to work on August 13, 2007 because he failed to provide
medical documentation to support his limited-duty assignment. Appellant did not establish any
of the three accepted reasons for modification of a loss of wage-earning capacity decision: that
the April 18, 1997 wage-earning capacity decision was issued in error, that his medical condition
had materially changed or that he was vocationally rehabilitated and his wage-earning capacity
had substantially increased.
Appellant requested a hearing which was later changed to a request for review of the
written record.
By decision dated May 19, 2008, the Office hearing representative denied modification of
its April 18, 1997 wage-earning capacity determination or appellant’s claim for wage-loss
compensation for August 13 to October 31, 2007. He failed to provide sufficient evidence that
modification of the loss of wage-earning capacity determination was warranted.
Appellant requested reconsideration by letter dated May 14, 2008. He alleged that he
was disabled from August 13 to October 31, 2007 because the employing establishment
effectively withdrew the limited-duty position that he had performed for several years by sending
him home on August 13, 2007 due to a lack of current medical documentation. Appellant
1

See Docket No. 98-767 (issued November 9, 1999).

2

In its November 9, 1999 decision, the Board also affirmed a December 12, 1997 schedule award decision.

3

The Office combined the case files for the June 3, 1994 and October 28, 1995 injuries, respectively OWCP File
No. xxxxxx077 and xxxxxx102.

2

contended that he gave his supervisor a copy of his 2003 work limitations and had no updated
medical reports to provide to his supervisor on August 13, 2007, the day he was sent home for
lack of medical documentation. He stated that he was not asked for updated medical reports
prior to August 13, 2007 and was not given a chance to provide documentation before he was
sent home on August 13, 2007.
Appellant denied seeking modification of his wage-earning capacity. He asserted that
withdrawal of the limited-duty position by the employing establishment on August 13, 2007
constituted a recurrence of disability under section 10.5(x) of the Code of Federal Regulations
and he was entitled to compensation for lost wages.4 In medical reports dated December 19,
2007 to August 20, 2008, Dr. Richard A. Nolan, an attending orthopedic surgeon, discussed
appellant’s right shoulder condition and treatment. He did not address the issue of whether
appellant was disabled from August 13 to October 31, 2007 due to a change in the nature and
extent of his accepted right shoulder strain and rotator cuff tear.
In a statement dated October 4, 2007 regarding appellant’s Merit Systems Protection
Board (MSPB) complaint, David Bernard, a supervisor, noted that he was assigned to identify all
employees on limited and light duty and make sure their medical files and work restrictions were
updated.5 Appellant’s file contained medical documentation that was out of date, including a
Family Medical Leave Act (FMLA) certification and a 1996 limited-duty job offer. Mr. Bernard
stated that there was no current medical documentation. He asked Inger Wilson, an injury
compensation specialist, whether appellant had an open injury compensation claim. Ms. Wilson
advised that appellant did not have an open or active compensation case and should be working a
full-duty position. Mr. Bernard advised management that appellant did not have an open
compensation case or any current medical documentation for light-duty work. Therefore,
appellant either should be working full duty or provide updated medical reports with work
restrictions to support continuing light duty. Mr. Bernard told appellant that he would have to
provide updated medical reports and a request for light duty or go home. Appellant responded
that he anticipated difficulty in getting a physician to see him. Mr. Bernard stated that appellant
was sent home on August 13, 2007 because he claimed he could not work full duty and did not
submit any medical evidence establishing his current work restrictions.
By decision dated September 29, 2008, the Office denied modification of its May 19,
2008 decision.6 It found that the employing establishment’s refusal to let appellant work on
August 13, 2007 because he did not provide a current medical report describing his work
limitations was an administrative issue between appellant and his employer. Appellant did not
meet his burden of proof to establish one of the accepted reasons for seeking modification of the
April 18, 1997 loss of wage-earning capacity decision.

4

20 C.F.R. § 10.5(x).

5

The record shows that Mr. Bernard reviewed appellant’s records in April 2007.

6

Subsequent to the September 29, 2008 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.

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LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such determination
is not warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous.7 The burden of proof is on the party attempting to show
modification of the award.8 When a formal decision on loss of wage-earning capacity is in place
and a claimant requests compensation for total wage loss, the Office must evaluate the request
according to the established criteria for modifying a formal loss of wage-earning capacity.9
ANALYSIS
Appellant contends that he is entitled to compensation for lost wages from August 13 to
October 31, 2007 because the employing establishment refused to allow him to work without
current medical documentation describing his medical limitations. He alleged that he sustained a
recurrence of disability because his limited-duty position was withdrawn by the employing
establishment. When a formal loss of wage-earning capacity is in place, the proper standard of
review is not whether appellant sustained a recurrence of disability on August 13, 2007, but
whether the Office should modify its April 18, 1997 decision according to the established criteria
for modifying a formal loss of wage-earning determination.10 The evidence does not establish
that there was a material change in the nature and extent of appellant’s injury-related condition,
he had been retrained or otherwise vocationally rehabilitated, or that the original determination
was erroneous. The Board will affirm the Office’s November 9, 2007 and May 14 and
September 29, 2008 decisions denying modification of the April 18, 1997 loss of wage-earning
capacity decision and denying his claim for compensation from August 13 to October 31, 2007.
On appeal, appellant argues that on August 13, 2007 the employing establishment
withdrew his limited-duty assignment. He contends that this constitutes a recurrence of
disability entitling him to compensation for lost wages. As noted, when a formal loss of wageearning capacity is in place, the proper standard of review is not whether appellant sustained a
recurrence of disability on August 13, 2007, but whether the Office should modify its April 18,
1997 decision according to the established criteria for modifying a formal loss of wage-earning
determination. Accordingly, appellant’s argument has no merit.

7

W.G., 58 ECAB ___ (Docket No. 06-367, issued December 27, 2006); Elmer Strong, 17 ECAB 226 (1965);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9a, 11.a (December 1995).
8

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006); Jack E. Rohrabaugh, 38 ECAB
186 (1986); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.11.b (December 1995).
9

See D.S., 58 ECAB ___ (Docket No. 06-1408 and 06-2061, issued March 1, 2007); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.9.a
(December 1995).
10

Id.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to show that a
modification of the April 18, 1997 loss of wage-earning capacity determination is warranted and
that he is entitled to wage-loss compensation for August 13 through October 31, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 29 and May 19, 2008 and November 9, 2007 are
affirmed.
Issued: September 16, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 16-0683
Issued: June 3, 2016

Case Submitted on the Record

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

JURISDICTION
On February 17, 2016 appellant filed a timely appeal from a November 2, 2015 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 has met his burden of proof to establish an injury causally
related to factors of his federal employment.
FACTUAL HISTORY
On October 27, 2014 appellant, then a 42-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging back injuries from heavy lifting while loading and unloading
1

5 U.S.C. § 8101 et seq.

trucks. He reported that he became aware of the condition and its relationship to employment as
of July 2, 2010. The supervisor’s report on the reverse of the claim form revealed that the claim
appeared to be untimely, and appellant was no longer employed as of July 13, 2013.2
By letter dated October 27, 2014, the employing establishment controverted the claim for
compensation. A human resources specialist indicated that appellant had never reported the
alleged injuries to a supervisor and he waited almost four years to file the claim. An SF-50
(notification of personnel action) dated August 19, 2013 indicated that appellant’s last day in pay
status was July 13, 2012. The notice indicated that a prior notice of removal dated July 12, 2010
had been reduced to a time-served suspension.
OWCP requested that appellant submit additional evidence with respect to his claim in a
letter dated November 14, 2014. It indicated that there was no evidence regarding timely
notification of injury, establishment of employment factors, or medical evidence establishing
causal relationship. Appellant was afforded 30 days to submit the additional evidence.
On December 9, 2012 an employing establishment supervisor reported in a November 30,
2014 e-mail correspondence that a mail handler’s job duties included loading and unloading
trucks. The supervisor indicated that the claim was controverted because appellant waited four
years to submit his claim. On December 12, 2014 OWCP received a note from appellant
indicating the last day he was exposed to the identified employment factors was July 13, 2012.
With respect to medical evidence, the record contains “work status” reports from Kaiser
Permanente physicians for intermittent dates in July 2010 and March through June 2012. In a
report dated April 24, 2014, for example, Dr. Calvin Wood, Board-certified in emergency
medicine, diagnosed chronic low back pain and indicated appellant was placed off work April 24
and 25, 2012.
By decision dated January 26, 2015, OWCP denied the claim for compensation. It found
the claim was timely filed. However, OWCP determined that the medical evidence did not
establish an injury causally related to the identified employment factors.
Appellant requested a review of the written record on February 11, 2015 before a Branch
of Hearings and Review hearing representative. He submitted medical evidence, which included
treatment reports for his back from Kaiser Permanente from February 29, 2009 through
April 11, 2013. With respect to reports from physicians,3 the evidence included a report dated
November 11, 2010 from Dr. Bharti Nachnani, a Board-certified family practitioner, who
provided a history that appellant had low back muscle spasms since February, “probably related
to his work as a mail handler.” Dr. Nachnani provided results on examination and diagnosed low
back pain.

2

The actual last date of employment was July 13, 2012. The Board notes that the record contains a second CA-2
form, received by OWCP on October 27, 2014, also claiming a back injury due to loading and unloading trucks.
The date appellant was aware of the condition and its relationship to employment was reported as May 24, 2010.
3

The evidence submitted included reports from nurse practitioners, medical assistants, and physical therapists.

2

In a report dated July 20, 2011, Dr. Darren Shimabukuro, a Board-certified internist,
reported appellant had chronic back pain “due to occupation, lifts heavy loads” more often since
a cut back in staff.
In a report dated March 25, 2012, Dr. Anjum Sameena, a Board-certified family
practitioner, reported that appellant had complained of low back pain for two days. He noted
that appellant did heavy lifting at work and had a history of back problems. Dr. Sameena
provided results on examination and diagnosed low back pain.
On April 15, 2012 Dr. Wendell Osborne, a Board-certified family practitioner, noted that
lumbar x-rays dated August 4, 2010 showed moderate narrowing of the L3-4 disc space with
spurring representing degenerative disc disease.
By decision dated July 28, 2015, the hearing representative affirmed the January 26, 2015
OWCP decision. The hearing representative found the medical evidence was insufficient to
establish the claim.
Appellant requested reconsideration on August 24, 2015. He argued that based on Board
case law the medical evidence he submitted was sufficient to establish the claim.
In a decision dated November 2, 2015, OWCP reviewed the merits of the claim and
denied modification. It found the evidence and argument submitted was not of sufficient
probative value to warrant modification of the July 28, 2015 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.6
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.7 A physician’s opinion on the issue of whether there is a
4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See Robert G. Morris, 48 ECAB 238 (1996).

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causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.8
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.9
ANALYSIS
In the present case appellant filed a claim on October 27, 2014 alleging that he sustained
a back condition causally related to his repetitive work duties including loading and unloading
trucks.
It is appellant’s burden of proof to submit rationalized medical evidence on causal
relationship between a diagnosed condition and the identified employment factors. The Board
notes that in 5 U.S.C. § 8101(2) a physician includes, “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by state law.”10 The Board finds that reports from nurse practitioners, medical
assistants, or physical therapists are of no probative medical value because they are not considered
physicians under FECA.11
With respect to treatment reports from physicians, none of the medical reports in the
record of evidence provides a rationalized medical opinion based on a complete factual
background. The physicians from Kaiser Permanente, including Drs. Nachnani, Shimabukuro,
Sameena, and Osborne, do not provide a complete factual and medical history. There are brief
references to lifting at work, but without any additional description such as the duration or of the
amounts lifted. Moreover, there are no opinions, supported by medical rationale, on causal
relationship between a diagnosed condition and the identified employment factors.
It is appellant’s burden of proof to establish the claim for compensation. Appellant has
not submitted a medical report with a complete factual and medical background, and a
rationalized medical opinion on causal relationship between a diagnosed back condition and the
identified employment activity. The Board accordingly finds that he did not meet his burden of
proof in this case.
On appeal, appellant submitted copies of OWCP decisions that provide a heading title of
“employee” and list appellant’s name. He argues this shows he was an employee at the time of
the decision. However, the remaining issue in this case is medical in nature. Appellant did not
submit sufficient medical evidence to establish the claim. While he also asserts that he never

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10

5 U.S.C. § 8101(2).

11

See V.N., Docket No. 16-0238 (issued March 1, 2016).

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received a hearing with the Branch of Hearings and Review, the record indicates that appellant
requested and received a review of the written record by a hearing representative.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2015 is affirmed.
Issued: June 3, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, WRIGHT-PATTERSON
AIR FORCE BASE, OH, Employer
__________________________________________

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

Docket No. 15-734
Issued: June 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 6, 2015 appellant, through counsel, filed a timely appeal from a January 12,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on April 5, 1988 appellant, then a 39-year-old aircraft electrician,
sustained an acute left shoulder sprain with fibrositis and left biceps tenosynovitis when he
slipped while descending a ladder and struck his left shoulder on an airplane hatch. Appellant
stopped work on April 8, 1988 and returned to work on May 9, 1988. He had periodic work
stoppages until being totally disabled from work beginning October 25, 1989. On April 18, 1991
appellant underwent a left rotator cuff repair and, on November 18, 1997, he had a left rotator
cuff repair with lateral clavical resection. OWCP authorized these procedures. From May 1994
through January 1998, appellant worked in various temporary positions in the private sector. He
stopped work in January 1998 and did not return to work for the employing establishment. On
August 15, 2000 appellant had an authorized left rotator cuff repair and, on January 6, 2006, he
had an authorized debridement for chronic left rotator cuff tear with bicep tenosynovitis.
In December 2007, appellant began to participate in vocational rehabilitation efforts.
Doris Graessle, appellant’s rehabilitation counselor, formulated a plan under which he would
undertake education and training designed to prepare him for work as a computer security
specialist or microcomputer support specialist. Appellant started participating in a training
program at the New Horizons Computer Learning Centers, Ohio Valley.
In 2009, appellant began to assert that his medical condition prevented him from
continuing with vocational rehabilitation efforts. In a July 15, 2009 note, Dr. Donald W. Ames,
an attending Board-certified orthopedic surgeon, discussed a July 7, 2009 nonwork-related motor
vehicle accident involving appellant. He noted that appellant reported missing school due to
pain. Dr. Ames diagnosed sprain/strain of the rotator cuff, pain in shoulder joint, and diabetes
mellitus.
By decision dated August 24, 2009, OWCP reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts. Appellant’s compensation would be based on the difference
between his pay rate as determined for compensation purposes and what his wage-earning
capacity would have been if he had cooperated with vocational rehabilitation efforts, i.e., his
wage-earning capacity as a computer security specialist. The computer security specialist
position was described in the Department of Labor’s Dictionary of Occupational Titles. OWCP
discussed the classes appellant missed and his failure to take a computer certification test. It
found that these actions were not excused by his medical condition or any other reason. In a
February 4, 2011 decision, OWCP affirmed its August 24, 2009 decision.
In a January 27, 2012 decision,2 the Board affirmed the February 4, 2011 decision noting
that OWCP properly reduced appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his
loss of wage-earning capacity had he continued to participate in vocational rehabilitation efforts.
The record reflected that appellant obstructed vocational rehabilitation efforts by repeatedly
missing training classes designed to qualify him to work in the computer field and by refusing to
take computer certification tests required for him to work in that field. Appellant claimed that a
2

Docket No. 11-871 (issued January 27, 2012).

2

medical condition prevented him from participating in vocational rehabilitation efforts, but he
did not submit sufficient medical evidence to establish this assertion. The Board referred to
appellant’s successful training efforts up until his refusal to continue cooperation and concluded
that, but for his obstruction, he would have been able to earn wages as a computer security
specialist. The Board determined that OWCP properly adjusted appellant’s compensation based
on the wages of this position.
Appellant continued to argue that OWCP improperly reduced his compensation in
August 2009 under 5 U.S.C. § 8113(b). He also suggested that his current medical condition
prevented him from returning to participation in vocational rehabilitation efforts. In a
January 25, 2012 report, Dr. Gregory Fisher, a Board-certified orthopedic surgeon serving as an
OWCP referral physician, diagnosed surgery (times four) for failed rotator cuff repair of the left
shoulder with evidence of osteoarthritis of the glenohumeral joint and a high riding humeral
head. He indicated that the left shoulder surgery recommended by Dr. Robert Nowinski, an
attending osteopath and Board-certified orthopedic surgeon, was medically necessary to treat
appellant’s left shoulder condition.
In an April 25, 2012 letter, Dr. Ames stated that he had treated appellant for years for
“severe problems with his left shoulder.” He discussed appellant’s left shoulder and arm
diagnoses and the left shoulder surgeries he underwent between 1991 and 2006. Dr. Ames stated
that appellant had been seen on January 24, 2012 by Dr. Fisher who recommended that he have
left shoulder surgery performed by Dr. Nowinski. He stated that appellant reported that he had
to discontinue a reeducation training program because he was unable to attend due to severe pain
about the shoulder.
In a June 7, 2012 report, Dr. Nowinski diagnosed left shoulder arthropathy with recurrent
rotator cuff tear, left biceps tendon tear, left capsular contraction, and retained hardware. He
recommended additional left shoulder surgery. On August 20, 2012 Dr. Nowinski performed a
left shoulder reversed total shoulder arthroplasty with latissimus dorsi tendon transfer, rotator
cuff reconstruction, biceps tenodesis, and capsular contracture release. In a July 2, 2013 report,
he indicated that appellant’s surgical implant had good alignment and position without
complications and no other surgical care was needed.
In an August 19, 2013 decision, OWCP determined that it properly reduced appellant’s
compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts.
In a June 16, 2014 decision,3 the Board affirmed the August 19, 2013 decision noting that
OWCP properly reduced appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his loss of
wage-earning capacity had he continued to participate in vocational rehabilitation efforts. The
Board found that the medical evidence dated in 2012 and 2013 did not establish that appellant
was medically unable to participate in vocational rehabilitation efforts when his compensation
was adjusted in August 2009. The Board also found that the medical evidence did not clearly
establish that his medical condition in 2012 and 2013 prevented him from returning to vocational
rehabilitation efforts at that time.
3

Docket No. 14-365 (issued June 16, 2014).

3

In a letter dated June 26, 2014, counsel argued that OWCP improperly reduced
appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity
had he continued to participate in vocational rehabilitation efforts. He asserted that appellant’s
medical condition prevented him from participating in vocational rehabilitation efforts. Counsel
argued that the Department of Labor’s Dictionary of Occupational Titles did not provide an
accurate description of the duties of a computer security specialist, the position which OWCP
deemed appellant could perform if he continued to participate in vocational rehabilitation efforts.
Appellant submitted a June 25, 2014 report in which Dr. Ames noted that he presented
complaining of numbness into the little finger on his left hand, pain at the base of his neck, and
pain about his left shoulder. Dr. Ames did not provide any treatment for appellant and referred
him to a neurosurgeon for evaluation. A report of June 25, 2014 x-ray testing of appellant’s left
shoulder showed that the reverse total shoulder replacement from August 20, 2012 was in good
position with no loosening of the components noted. Appellant also submitted physical therapy
notes dated between May and June 2014 and copies of requests for authorization for physical
therapy.
In a January 12, 2015 decision, OWCP again determined that it properly reduced
appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity
had he continued to participate in vocational rehabilitation efforts.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits.4 Section 8113(b) of FECA
provides that if an individual, without good cause, fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of FECA, OWCP, “after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of the individual in
accordance with what would probably have been his [or her] wage-earning capacity in the absence
of the failure,” until the individual in good faith complies with the direction of OWCP.5
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP
will take when an employee without good cause fails or refuses to apply for, undergo, participate
in, or continue to participate in a vocational rehabilitation effort when so directed. Section
10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, OWCP will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. It will determine this amount in accordance with the job identified
through the vocational rehabilitation planning process, which includes meetings
with OWCP nurse and the employer. The reduction will remain in effect until
4

Betty F. Wade, 37 ECAB 556, 565 (1986).

5

5 U.S.C. § 8113(b).

4

such time as the employee acts in good faith to comply with the direction of
OWCP.”6
ANALYSIS
OWCP accepted that on April 5, 1988, appellant sustained an acute left shoulder sprain
with fibrositis and left biceps tenosynovitis due to slipping while descending a ladder and hitting
his left shoulder on an airplane hatch. Appellant last worked in January 1998 and has not
returned to work for the employing establishment. Beginning in 1991, he underwent several left
shoulder surgeries which were authorized by OWCP.
By decision dated August 24, 2009, OWCP reduced appellant’s compensation under
5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts. In a February 4, 2011 decision, it affirmed its August 24, 2009
decision. By decision dated January 27, 2012, the Board affirmed the February 4, 2011 decision
noting that OWCP properly reduced appellant’s compensation under 5 U.S.C. § 8113(b). In an
August 19, 2013 decision, OWCP again determined that it properly reduced appellant’s
compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts. By decision dated June 16, 2014, the
Board again affirmed the August 19, 2013 decision noting that OWCP properly reduced
appellant’s compensation under 5 U.S.C. § 8113(b).
Following the prior appeals, appellant, through counsel, contended that OWCP
improperly reduced his compensation under 5 U.S.C. § 8113(b) in August 2009. He asserted
that his current medical condition prevented him from participating in vocational rehabilitation
efforts. The Board finds that the evidence submitted by appellant does not prove that OWCP
improperly reduced his compensation under 5 U.S.C. § 8113(b) to reflect his loss of
wage-earning capacity had he continued to participate in vocational rehabilitation efforts. The
more recent medical evidence submitted by appellant describes his medical condition in 2014
and therefore is not relevant to his claim that his medical condition in mid-2009 prevented him
from continuing his participation in vocational rehabilitation efforts at that time. As discussed
by the Board in its January 27, 2012 and June 16, 2014 decisions, appellant had not previously
submitted rationalized medical evidence showing that his medical condition justified his
stoppage of vocational rehabilitation efforts in mid-2009.
Moreover, although the new medical evidence submitted by appellant shows that he
continued to have left shoulder problems in 2014, this evidence does not contain a clear,
rationalized opinion that he was medically prohibited from returning to a vocational
rehabilitation program in 2009. In a June 25, 2014 report, Dr. Ames, an attending Boardcertified orthopedic surgeon, noted that appellant presented complaining of numbness into the
little finger on his left hand, pain at the base of his neck, and pain about his left shoulder. He
indicated that he did not provide any treatment for appellant and referred him to a neurosurgeon
for evaluation. The Board notes that, in this report, Dr. Ames did not provide an opinion that
appellant was medically incapable of participating in vocational rehabilitation efforts. A report
6

20 C.F.R. § 10.519(a).

5

of June 25, 2014 x-ray testing of appellant’s left shoulder showed that the reverse total shoulder
replacement from August 20, 2012 was in good position with no loosening of the components
noted.7
Counsel argued that Department of Labor’s Dictionary of Occupational Titles did not
provide an accurate description of the duties of a computer security specialist, the position which
OWCP deemed appellant could perform if he had continued to participate in vocational
rehabilitation efforts. The Board notes that OWCP procedure provides that in cases where the
claimant has undergone vocational rehabilitation, the vocational rehabilitation counselor will
submit a final report to the vocational rehabilitation specialist summarizing why vocational
rehabilitation was unsuccessful and listing two or more jobs which are medically and
vocationally suitable for the claimant. The report will include the Department of Labor’s
Dictionary of Occupational Titles description (or OWCP specified equivalent) of the duties and
physical requirements of each job.8 Counsel has not provided compelling argument that the
description of the computer security specialist position in the Department of Labor’s Dictionary
of Occupational Titles was inaccurate.
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 OWCP properly reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.

7

Appellant also submitted physical therapy notes dated between May and June 2014. These reports are of limited
probative value regarding the severity of his medical condition as the reports of nonphysicians such as physical
therapist do not constitute medical evidence under FECA. See Jane A. White, 34 ECAB 515 (1983).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4 (June 2013); see also T.G., Docket No. 14-921 (issued September 17, 2014)
(the Board noted that appellant did not submit evidence supporting that the position at issue was not reasonably
available and that OWCP procedures clearly state that the vocational counselor shall include in his or her report the
Department of Labor’s Dictionary of Occupational Titles description of duties and physical requirements).

6

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 20-0687
Issued: December 11, 2020

Case Submitted on the Record

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

JURISDICTION
On February 9, 2020 appellant filed a timely appeal from a January 16, 2020 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 16, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to expand acceptance of her
claim to include an additional lumbar condition causally related to her accepted December 14,
2018 employment injury.
FACTUAL HISTORY
On January 8, 2019 appellant, then a 50-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on December 14, 2018 she sprained the thoracic region of her spine when she
lifted mail out of an automated postal container while in the performance of duty. She was off
work from December 15 through 20, 2018, due to a nonwork-related injury and returned to
modified duty on December 21, 2018. Appellant worked intermittently until she stopped work
completely on January 20, 2019. OWCP accepted her claim for lumbar spine sprain, sprain of the
sacroiliac joint, lumbar intervertebral disc disorders with myelopathy, and intervertebral disc
disorders with radiculopathy of the lumbosacral region. It paid wage-loss compensation on the
supplemental rolls, effective March 30, 2019.
Appellant continued to receive medical treatment.
A February 23, 2019 lumbar spine magnetic resonance imaging (MRI) scan report revealed
epidural lipomatosis from L2-3 to L5-S1 narrowing the thecal sac space, but without evidence of
soft tissue impingement, a L5-S1 desiccation with small dorsal annular tear and bulge without
clear impingement, and abnormal signal without the left lateral canal immediately posterior to the
T12 vertebral body of uncertain etiology.
In a March 20, 2019 examination report, Dr. Jerry Powell, a family medicine specialist,
indicated that appellant was seen for reevaluation of lumbar pain. Upon physical examination of
the lumbar spine, he observed restricted range of motion due to pain and positive straight leg raise
testing bilaterally. Dr. Powell assessed lumbar spine sprain, sacroiliac joint sprain, lumbar
intervertebral disc disorders with radiculopathy, lumbar intervertebral disc disorders with
myelopathy, and lumbar intervertebral disc degeneration. He completed a duty status form (Form
CA-17) report indicating that appellant could work full time with restrictions.
On May 6, 2019 appellant underwent a spinal angiogram.
On April 15, 2019 OWCP referred appellant, along with a statement of accepted facts, a
copy of the case record, and a series of questions, to Dr. Norman Mindrebo, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding the status of her accepted
December 14, 2018 employment injury. In a May 10, 2019 report, Dr. Mindrebo reviewed her
history and reported physical examination findings of tenderness at the low back, but no palpable
paravertebral muscle spasm. Straight leg raise testing was negative. Dr. Mindrebo opined that
appellant sustained a lumbar strain on December 14, 2018 that had resolved. He indicated that she
could return to work with restrictions, but explained that the limitations were primarily due to
appellant’s underlying condition of cirrhosis of the liver.

2

In a June 3, 2019 addendum report, Dr. Mindrebo opined that appellant’s conditions of
intervertebral disc disorder with myelopathy of the lumbar region and intervertebral disc disorder
with radiculopathy of the lumbosacral region were not caused by or contributed to as a result of
the December 14, 2018 employment injury. He indicated that she sustained only a mild lumbar
sprain. Dr. Mindrebo reported that these conditions had resolved and did not preclude appellant
from performing her employment duties as a clerk.
In a June 6, 2019 visit summary report, Dr. Jeffrey Cooke, a Board-certified vascular
surgeon, indicated that appellant was treated for complaints of lower leg swelling, cirrhosis of the
liver, and low back pain. He related that she had complained of disabling back pain for the last
six months. Dr. Cooke noted that an L5-S1 disc may be the source of some of the pain. Upon
physical examination, he observed swelling in the back down to the feet, neck pain, and numbness
and tingling to her feet. Dr. Cooke also provided laboratory results, an abdomen and pelvis
computerized tomography scan report, and a lower extremity arterial examination report.
In an April 22, 2019 report by Dr. Shannon McCanna, a Board-certified neurosurgeon, she
recounted that appellant worked as a mail carrier and began to complain of back pain at work in
December 2018. Dr. McCanna noted that appellant also had a history of cord signal change in the
thoracic spinal cord and portal venous thrombosis, which caused a liver dysfunction. Upon
examination of appellant’s back, she observed no significant tenderness to palpation in the thoracic
or lumbar spine. Straight leg raise testing was negative bilaterally. Dr. McCanna indicated that
an MRI scan showed cord signal change in the thoracic spinal cord with serpiginous flow voids
and a small annular tear at L5-S1. She opined that appellant’s back pain may be related to spinal
cord swelling or it may be related to a small annular tear at the L5-S1 level.
OWCP also received hospital records dated September 15 and 16, 2019; an application for
a vehicle disability parking placard; a letter from the employing establishment informing her that
she was being assigned to a different work schedule; an October 8, 2019 letter from a home care
service; and chiropractor reports dated November 8 and 22, 2019.
In a September 20, 2019 letter, Dr. Sunita N. Premkumar, a Board-certified family
practitioner, indicated that appellant was incapacitated to perform her job duties.
Dr. Phillip Kingma, a Board-certified family physician, recounted in a November 19, 2019
treatment record and referral note that appellant developed low back and neck pain after a
December 14, 2018 injury at work. He conducted an examination and referred her to physical
medicine and rehabilitation for her chronic pain syndrome and low back pain.
In a December 10, 2019 development letter, OWCP informed appellant that it had received
medical evidence, which indicated that she sustained a small annular tear at L5-S1 causally related
to the accepted December 14, 2018 employment injury. It advised her of the factual and medical
evidence necessary to establish her claim and afforded her 30 days to provide the requested
medical evidence.
Appellant submitted a December 11, 2019 physical therapy initial evaluation report and a
February 7, 2019 after-visit summary from the emergency department, which noted a diagnosis of
chronic low back pain.

3

By decision dated January 16, 2020, OWCP denied expansion of the acceptance of
appellant’s claim to include small annular tear at L5-S1, finding that the medical evidence of record
was insufficient to establish that the additional condition was caused or aggravated by her
December 14, 2018 employment injury.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.4 Aphysician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.5 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
employment injury.6
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.7 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural consequence of a compensable primary injury.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include an additional lumbar condition causally related to her accepted
December 14, 2018 employment injury.
In support of her claim, appellant submitted an April 22, 2019 report by Dr. McCanna who
reviewed appellant’s history and conducted an examination. She indicated that an MRI scan
showed a small annular tear at L5-S1. Dr. McCanna opined that appellant’s back pain may be
related to spinal cord swelling or it may be related to a small annular tear at the L5-S1 level. She
3

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

4

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

7

See S.M., Docket No. 19-0397 (issued August 7, 2019); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
8
A.T., Docket No. 18-1717 (issued May 10, 2019); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139 (2001).

4

did not, however, provide an opinion on the cause of appellant’s L5-S1 annular tear. Appellant
was also treated by Dr. Cooke who likewise did not specifically address how her L5-S1 condition
may have resulted from the accepted December 14, 2018 employment injury. Medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.9 These reports, therefore, are insufficient to establish
appellant’s claim.10
In a March 20, 2019 report, Dr. Powell reevaluated appellant for complaints of lumbar pain
and provided examination findings. He assessed lumbar spine sprain, sacroiliac joint sprain,
lumbar intervertebral disc disorders with radiculopathy, lumbar intervertebral disc disorders with
myelopathy, and lumbar intervertebral disc degeneration. Dr. Powell, however, did not provide a
diagnosis for an additional L5-S1 lumbar injury. Likewise, Dr. Premkumar’s September 20, 2019
work status note also failed to mention an additional lumbar injury. The Board has held that a
medical report lacking a firm diagnosis and a rationalized medical opinion regarding causal
relationship is of no probative value.11 These reports, therefore, are insufficient to establish any
additional lumbar condition as employment related.12
OWCP also received a February 24, 2019 diagnostic report. However, diagnostic studies,
standing alone, lack probative value as they do not address whether an employment incident caused
the diagnosed condition.13
In response to the development letter, OWCP received a December 11, 2019 physical
therapy initial evaluation report. Certain healthcare providers such as physical therapists are not
considered physician[s] as defined under FECA14 Therefore, the report is of no probative value.
Also received was a February 7, 2019 after-visit summary from the emergency department,
which noted a diagnosis of chronic low back pain but it did not contain an opinion on causal
relationship, therefore it is of no probative value.15 The Board finds that the medical evidence of
record is insufficient to establish causal relationship between the additional lumbar condition and
9

See B.P., Docket No. 19-0777 (issued October 8, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

10

See G.V., Docket No. 20-0055 (issued April 21, 2020).

11

J.P., Docket No. 20-0381 (issued July 28, 2020); M.B., Docket No. 19-0828 (issued September 17, 2019); P.C.,
Docket No. 18-0167 (issued May 7, 2019); see C.T., Docket No. 10-2354 (issued April 21, 2011); see Brad Bolton,
Docket No. 94-2298 (issued August 26, 1996).
12

See Y.C., Docket No. 17-1938 (issued January 7, 2019).

13

F.S., Docket No. 19-0205 (issued June 19, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

14

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); see also C.K.,
Docket No. 19-1549 (issued June 30, 2020) (physician assistants are not considered physicians under FECA).
15

See L.B., supra 9D.K., Docket No. 17-1549 (issued July 6, 2018).

5

the accepted December 14, 2018 employment injury, and thus appellant has not met her burden of
proof to establish her claim.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to expand acceptance of her
claim to include an additional lumbar condition causally related to her accepted December 14,
2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2020
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

16

See S.J., Docket No. 19-0489 (issued January 13, 2020); E.B., Docket No. 17-1497 (issued March 19, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, Randolph, TX,
Employer
__________________________________________

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

Docket No. 18-0853
Issued: March 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 13, 2018 appellant filed a timely appeal from an October 31, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted July 19, 2017 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the October 31, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On July 31, 2017 appellant, then a 39-year-old management analyst, filed a traumatic
injury claim (Form CA-1) alleging that on July 19, 2017, while descending steps at work, the
material covering the stairs gave way causing him to roll his ankle and lose his balance. He
indicated that, as he tried to regain his balance, he grabbed a bar with his left hand and injured his
left wrist and left shoulder. Appellant stopped work on July 19, 2017 and returned to regular duty
on a full-time basis on August 3, 2017.
On July 25, 2017 appellant was treated by Dr. Adrian T. Baddar, Board-certified in
orthopedic surgery, for his shoulder complaints. He noted that a magnetic resonance imaging
(MRI) scan of the left shoulder from November 2016 showed mild bursitis.3 Appellant reported
“having a fall yesterday” which caused worsening anterior shoulder pain. Findings on physical
examination revealed limited range of motion of the left shoulder to 100 degrees, reasonable
strength, and severe discomfort with Neer and Hawkins testing. Dr. Baddar diagnosed acute
bursitis of the left shoulder and bilateral shoulder pain.
In an August 1, 2017 note, Sarah Latuga, a physician assistant, indicated that appellant
could return to work on August 3, 2017.4 On August 3, 2017 Dr. Baddar noted left shoulder
findings of active forward flexion of 90 degrees, reasonable strength, and intact sensation distally,
and he diagnosed left shoulder pain and acute bursitis of the left shoulder.5
In reports dated August 8 and 10, 2017, William Power, a physical therapist, noted physical
therapy sessions with appellant.
On September 5, 2017 Dr. Baddar noted findings on examination of active forward flexion
and abduction to 90 degrees with reasonable strength. He diagnosed left shoulder pain and acute
bursitis of the left shoulder.
In a duty status report (Form CA-17) dated September 5, 2017, Dr. Baddar listed the date
of injury as July 19, 2017 and provided a “diagnosis due to injury” of left shoulder pain. He noted
that appellant could resume work full time with restrictions on September 5, 2017.
In a report dated September 7, 2017, Dr. Baddar advised that appellant reported undergoing
left ankle reconstructive surgery in 2015. He noted findings of no swelling or deformity of the left
ankle and left wrist, stable anterior drawer sign of the left ankle, and minimal pain with range of

3

The case record does not contain a copy of this MRI scan. Appellant submitted July 25, 2017 x-rays of the left
shoulder, left wrist, and left ankle which revealed no abnormalities. A July 31, 2017 MRI scan of the left shoulder
showed no full-thickness rotator cuff tear, tendon retraction, or muscle atrophy.
4
Appellant submitted an incomplete version of an August 1, 2017 report which did not contain a page with a
signature.
5

In another August 3, 2017 report, Dr. Baddar diagnosed acute bursitis of both shoulders. On August 17, 2017 he
reported that appellant had left shoulder forward flexion and abduction of 30 degrees, and he diagnosed left shoulder
pain and acute bursitis of the left shoulder.

2

motion of the left wrist. X-rays of the ankle and wrist revealed no acute abnormality. Dr. Baddar
diagnosed left wrist sprain, left wrist pain, left ankle pain, and acute bursitis of the left shoulder.
In a Form CA-17 report dated September 7, 2017, Dr. Baddar listed the date of injury as
July 19, 2017 and provided a “diagnosis due to injury” of left shoulder bursitis and left ankle
sprain. He advised that appellant could resume work full time with restrictions on
September 7, 2017. In an attending physician’s report (Form CA-20) dated September 7, 2017,
Dr. Baddar noted that appellant reported falling at work on July 19, 2017. He diagnosed left
shoulder bursitis and checked a box marked “Yes” indicating that appellant’s condition was caused
or aggravated by an employment activity.
In a September 28, 2017 development letter, OWCP advised appellant that the evidence
received was insufficient to support his claim, noting that the medical evidence did not substantiate
that the diagnosis provided, left shoulder bursitis, was caused or aggravated by the reported
employment incident It requested that he submit additional evidence in support of his claim,
including a physician’s opinion supported by a medical explanation as to how the reported
employment incident caused or aggravated a medical condition. OWCP afforded appellant 30
days to submit the requested information.
On October 5, 2017 Dr. Baddar noted that his physical examination of appellant’s left
ankle revealed no swelling, stability on anterior drawer testing, and intact function. With respect
to the left wrist, there was no swelling or erythema, and painless range of motion. Dr. Baddar
diagnosed left wrist pain, left ankle pain, and acute bursitis of the left shoulder.
By decision dated October 31, 2017, OWCP accepted that the July 19, 2017 employment
incident occurred as alleged. However, it denied appellant’s traumatic injury claim finding that
the evidence of record was insufficient to establish a medical condition in connection with the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 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.8

6

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.9 The second component is whether the employment incident caused a personal injury.10
Rationalized medical opinion evidence is 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 incident.11
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.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted July 19, 2017 employment incident. In a Form CA-20 report dated
September 7, 2017, Dr. Baddar noted that appellant reported falling at work on July 19, 2017. He
diagnosed left shoulder bursitis and checked a box marked “Yes,” indicating that appellant’s
condition was caused or aggravated by an employment activity. The Board has held that when a
physician’s opinion on causal relationship consists only of checking “Yes” to a form question,
without more by the way of medical rationale, that opinion is of limited probative value and is
insufficient to establish causal relationship.14 As such, Dr. Baddar’s September 7, 2017 report is
insufficient to discharge appellant’s burden of proof to establish causal relationship.
In Form CA-17 reports dated September 5 and 7, 2017, Dr. Baddar provided diagnoses due
to the reported July 19, 2017 employment incident of left shoulder pain, left shoulder bursitis, and
left ankle sprain. Although he related these conditions to the accepted July 19, 2017 employment
incident, these reports are of limited probative value on the underlying issue of the present case
because he did not provide medical rationale in support of his opinion on causal relationship.
Dr. Baddar did not describe the employment incident in detail or explain how it could have been
9

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

11

S.S., Docket No. 18-1488 (issued March 11, 2019).

12

J.L., Docket No. 18-1804 (issued April 12, 2019).

13

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

14

Id.

4

competent to cause or aggravate the diagnosed conditions. Thus, this evidence is insufficient to
meet appellant’s burden of proof.
In several narrative reports, including those dated July 25, August 3 and 17, and
September 7, 2017, Dr. Baddar reported physical examination findings and primarily diagnosed
acute bursitis of the left shoulder and left shoulder pain.15 On September 7, 2017 he diagnosed
left wrist sprain, left wrist pain, left ankle pain, and acute bursitis of the left shoulder. On
October 5, 2017 Dr. Baddar diagnosed left wrist pain, left ankle pain, and acute bursitis of the left
shoulder. However, these reports are of no probative value on the underlying issue of this case
because they do not contain an opinion that appellant sustained an injury due to the accepted
July 19, 2017 employment incident. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition or disability is of no probative value on
the issue of causal relationship.16 Therefore, these reports are insufficient to establish appellant’s
claim.17
Appellant also submitted an August 1, 2017 note from Ms. Latuga, a physician assistant,
who indicated that appellant could return to work on August 3, 2017. Under FECA, the report of
a nonphysician, including a physician assistant, does not constitute probative medical evidence.18
Thus, this evidence is not sufficient to meet appellant’s burden of proof. The record also contains
notes from Mr. Powers, a physical therapist, regarding appellant’s physical therapy sessions on
August 8 and 10, 2017. The Board has held that the report of a physical therapist does not
constitute probative medical evidence as a physical therapist is not a physician under FECA.19
Thus, these treatment records also are of no probative medical value in establishing appellant’s
claim.20 Appellant submitted the findings of diagnostic testing, including July 25, 2017 x-rays of
the left wrist, left shoulder, and left ankle, and a July 31, 2017 MRI scan of the left shoulder.
However, diagnostic studies lack probative value as they do not address whether employment
factors caused the diagnosed condition.21
As the medical evidence of record does not contain a rationalized opinion establishing
causal relationship, the Board finds that appellant has not met his burden of proof.

15

To a lesser extent, Dr. Baddar also diagnosed bilateral shoulder pain and acute bursitis of both shoulders.

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17

Id.

18

R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-0829 (issued August 20, 2013). See
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
19

S.T., Docket No. 17-0913 (issued June 23, 2017) (a physical therapist is not a physician under FECA).

20
Appellant submitted an incomplete version of an August 1, 2017 report which did not contain a page with a
signature. The Board has held that 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) and reports
lacking proper identification do not constitute probative medical evidence. C.B., Docket No. 09-2027 (issued
May 12, 2010). Therefore, this August 1, 2017 report does not constitute probative medical evidence.
21

C.S., Docket No. 19-1279 (issued December 30, 2019).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted July 19, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 31, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, Co, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Bernard Humbles, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0151
Issued: December 12, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 31, 2016 appellant, through her representative, filed a timely appeal from a
July 15, 2016 merit decision and a September 13, 2016 nonmerit decision of the Office of
Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal Employees’ Compensation

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

Appellant’s representative filed a timely request for oral argument in this case. By order dated April 13, 2017,
the Board exercised its discretion and denied appellant’s request as oral argument would further delay issuance of a
Board decision and not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 17-0151
(issued April 13, 2017).

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the claim.4
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a lumbar
condition causally related to the accepted April 13, 2016 employment incident; and (2) whether
OWCP properly denied appellant’s request for a hearing.
FACTUAL HISTORY
On April 15, 2016 appellant, then a 46-year-old medical instrument technician, filed a
traumatic injury claim (Form CA-1) alleging that on April 13, 2016 she was assisting a nurse with
a very large patient in limited bathroom space. She explained that she leaned over the patient’s
large wheel chair to help with the patient’s pants, and upon standing she felt a sharp pain in her
low back at the midline level. Appellant also noted that pain radiated down to her left buttock and
down her leg to the bottom of her foot.
In an April 13, 2016 report, Dr. Sandra Buseman, an attending physician Board-certified
in sports medicine, physical medicine, and rehabilitation, recommended rest and a return to work
on April 14, 2016 with restrictions. The restrictions included no pushing, pulling, lifting, or
carrying greater than 10 pounds. Dr. Buseman also recommended that appellant have the ability
to change positions as needed for comfort.
In an April 14, 2016 report, Dr. Tanya Michelle Kern, a Board-certified family practitioner,
assessed lumbar radiculopathy. She recommended a medrol dose pack for a “likely disc herniation
or annular tear.” Dr. Kern opined that appellant’s condition was “at least 50 percent likely to have
been caused by exposure at work.” She noted that appellant’s job duties included that she had to
help move patients. Dr. Kern indicated that appellant was asked to assist a coworker with a 200
pound woman, who needed help using the toilet. She related that appellant indicated that the
bathroom was a small space in which she had to lean over the wheelchair to help hold the patient
and in so doing injured the left side of her low back. Dr. Kern also indicated that appellant had
immediate pain when she pulled up on the patient’s pants and leaned over the wheelchair. She
noted that appellant informed her that pain radiated down the back of her leg and into her foot.
Additionally, Dr. Kern indicated that appellant had persistent pain in the left side of her low back
with numbness in the middle of the bottom of her foot. She opined that “it feels exactly like the
time that [appellant] had a disc herniation at L5 on the left side,” which occurred due to a previous
injury in 2003.
OWCP received several reports dated from April 20 to May 27, 2016 from Dr. Michael
Shen, a Board-certified orthopedic surgeon. In his April 20, 2016 duty status report, Dr. Shen
3

5 U.S.C. § 8101 et seq.

4

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

2

indicated that appellant leaned over a large wheelchair while at work to assist a patient and she felt
a sharp pain in the low back and midline, then down the right buttock and leg to the foot. He found
clinical findings of lumbar strain and radiculopathy. Dr. Shen diagnosed low back pain and
radiculopathy. He recommended light duty with restrictions on lifting and carrying of no more
than 10 to 15 pounds continuously or intermittently.
In a separate report also dated April 20, 2016, Dr. Shen explained that appellant presented
with pain and noted that her symptoms were acute, traumatic and began on April 14, 2016. He
indicated that she had an acute strain and onset of her back and leg symptoms, and her pain was
worse with prolonged sitting. Dr. Shen noted that appellant felt better when she could stand and
even more so when she could walk or move around. He related that she had similar symptoms in
the past which had resolved with conservative treatment. Dr. Shen examined appellant and
diagnosed low back pain and radiculopathy in the lumbar region. He also indicated that she related
that she had a history of degenerative disc disease and disc bulging at L5-S1. Dr. Shen opined that
this helped to explain appellant’s decreased disc height at L5-S1. He found that she was
mechanically stable and neurologically intact. Dr. Shen recommended a magnetic resonance
imaging (MRI) scan of the lumbar spine and conservative care.
Dr. Shen evaluated appellant on April 22, 2016 and diagnosed radiculopathy of the lumbar
region. He noted that she continued to have pain in the right sacroiliac joint region and slightly
distally in the glute.
In his April 25, 2016 report, Dr. Shen noted radiculopathy of the lumbar region and
indicated that the patient reported occasional tingling in her feet and pain over the right sacroiliac
joint extension in prone positions. He recommended continued light-duty work. Dr. Shen saw
appellant on April 27 and May 3, 2016 and diagnosed radiculopathy of the lumbar region. He saw
her again on May 4, 2016 and diagnosed low back pain along with radiculopathy of the lumbar
region. Dr. Shen advised that appellant’s back was improving with conservative treatment and
recommended full-time work restrictions and moderate duty. He recommended continued
physical therapy.
In a May 4, 2016 report, Dr. Shen recommended a 25-pound lifting and carrying
restriction. He saw appellant on May 6, 2016 and related that she had pain going side to side.
Dr. Shen related that she indicated that she reported some burning and nerve sensation to the left
leg, but had not increased the workload yet. He advised that appellant indicated that she reported
that she was sitting in a chair and bent to the floor to pick up a dropped tube and warmth began
down the left thigh and tingling in the foot. Dr. Shen saw her on May 13, 2016 and noted reports
of aching in the right glute and proximal hamstring bilaterally. In a May 17, 2016 report, he
repeated his diagnoses. Dr. Shen found that appellant continued to have an inflamed and unstable
vertebra and disc in her low back. He noted that she had increased pain down the left leg and
reported that she indicated that she was in a car ride “for 1.5 x 2 hours this weekend and felt
increased stiffness and pain.” In a May 18, 2016 report, Dr. Shen diagnosed radiculopathy, lumbar
region and low back pain. He advised that appellant regressed in terms of back and leg pain despite
conservative care. Dr. Shen recommended proceeding with a lumbar MRI scan. He recommended
continued physical therapy.

3

In a May 20, 2016 report, Dr. Shen noted that appellant presented with increased mobility
today, during exercise, ambulation, and changing positions. He advised that she reported pain in
the right PSIS with certain movements. Dr. Shen also noted that appellant reported “feeling pretty
good today,” and also reported some sciatic sensations down both legs. In a note of May 24 2016,
he advised that she again reported that her back was “feeling pretty good,” but she did try jumping
jacks that created increased pressure and pain in her back, and she was going back to lifting at
work for 5 out of 12 hours.
A May 26, 2016 MRI scan of the lumbar spine, read by Dr. Trystain D. Johnson, a Boardcertified diagnostic radiologist, revealed mild central canal stenosis at L4-5, no other canal
stenosis, mild-to-moderate lower lumbar facet arthrosis with small bilateral L4-5 facet joint
effusions, and with no significant foraminal narrowing associated.
In a May 27, 2016 report, Dr. Shen found that appellant had other spondylosis with
radiculopathy of the lumbar region. He explained that she reported that her back hurt more for a
few days after work duties had been increased, but after being sore for a few days she was feeling
better. Dr. Shen indicated that appellant had pain in the central lumbar spine and the right
sacroiliac region.
By development letter dated June 10, 2016, OWCP advised appellant of the deficiencies in
her claim. It requested additional factual and medical evidence and provided a questionnaire for
her completion. OWCP afforded appellant 30 days to submit the requested information.
Dr. Shen continued to treat appellant and submitted treatment notes and duty status reports
dated June 14, 17, 21, 22 and 24 and July 13, 2016. He repeated his diagnoses, which included
spondylosis with radiculopathy. Dr. Shen indicated that appellant continued to be symptomatic
following her accident at work. He advised that her symptoms occurred occasionally, and her
problem was fluctuating. In a July 13, 3016 duty status report, Dr. Shen indicated that appellant
was able to return to full-time work.
By decision dated July 15, 2016, OWCP denied appellant’s claim. It found that the medical
evidence of record was insufficient to establish causal relationship between her diagnosed medical
condition and the accepted April 13, 2016 employment incident. OWCP explained that the
submitted medical reports identified a preexisting condition of the lumbar spine, to include
herniated discs from 2003, degenerative disc disease, and a bulging disc at L5-S1. It noted that
appellant’s physician had not provided an opinion as to whether the work incident on April 13,
2016 was the cause of her diagnosed medical condition.
On August 26, 2016 OWCP received appellant’s request for a telephonic hearing dated
August 1, 2016. The request was postmarked August 18, 2016.
OWCP also received an August 2, 2016 report from Dr. Bennet Machanic, a Boardcertified neurologist, who noted appellant’s history, examined her, and provided his findings and
an opinion on causal relationship. Additionally, it received a copy of the first page of a July 13,
2016 report which appears to be from Dr. Shen and a copy of a previously submitted May 24, 2016
report from Dr. Shen.

4

By decision dated September 13, 2016, OWCP denied appellant’s request for a hearing. It
found that the request was untimely as it was not made within 30 days of the July 15, 2016
decision. OWCP exercised its discretion and determined that it would not grant a hearing because
the issue in the case could equally well be addressed by requesting reconsideration and submitting
new evidence not previously considered pertaining to appellant’s claim for an injury causally
related to her accepted April 13, 2016 employment incident.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as
alleged,6 and that any disability or specific condition for which compensation is claimed are
causally related to the employment injury.7 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether “fact of injury” has been established.
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.9 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.10
Causal relationship is a medical issue and the evidence required to establish causal
relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is
evidence which includes a physician’s opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.11

5

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

6

James E. Chadden, Sr., 40 ECAB 312 (1988).

7

Michael E. Smith, 50 ECAB 313 (1999).

8

Delores C. Ellyett, 41 ECAB 992 (1990).

9

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

10

Id.

11

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

5

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted April 13, 2016 employment incident. The Board finds
that the medical evidence of record contains no reasoned explanation of how the accepted
employment incident on April 13, 2016 caused or aggravated her claimed back conditions.12 Such
a reasoned opinion is especially important as appellant has well-documented preexisting
conditions of the lumbar spine.13
OWCP received an April 13, 2016 report from Dr. Buseman, who recommended a return
to work with restrictions. However, Dr. Buseman merely provided work restrictions and did not
offer an opinion on causal relationship. Medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.14
In an April 14, 2016 report, Dr. Kern assessed lumbar radiculopathy and opined that
appellant’s condition was “at least 50 percent likely to have been caused by exposure at work.”
She described appellant’s job duties, which included that appellant had to help move patients -specifically assisting a coworker with a 200-pound patient on the date of incident. Dr. Kern
indicated that appellant experienced immediate pain when she pulled up on the large patient’s
pants and leaned over the wheelchair. She noted that appellant had pain that radiated down the
back of her leg and into her foot as well as persistent pain in the left side of her low back with
numbness in the middle of the bottom of her foot. Dr. Kern opined that “it feels exactly like the
time that [appellant] had a disc herniation at L5 on the left side.” She noted that appellant
recovered from her prior injury in 2003 with conservative treatment. The Board notes that while
Dr. Kern opined that appellant’s condition was “at least 50[-]percent likely to have been caused
by exposure at work,” other than noting appellant’s complaints, she did not provide a causation
finding with medical rationale explaining how the April 13, 2016 work incident caused or
aggravated the diagnosed conditions.15 Such rationale is particularly important given appellant’s
history of preexisting disc herniation at L5 on the left side.16
OWCP also received several reports from Dr. Shen for the period April 20 to July 13, 2016.
Dr. Shen diagnosed low back pain and radiculopathy in the lumbar region along with spondylosis
with radiculopathy. While he generally noted that, the lumbar condition was due to a work
incident, he failed to provide medical reasoning as to how and why the accepted employment
incident would result in a lumbar spine condition. Without explaining how, physiologically, the
movements involved in the accepted employment incident caused or contributed to the diagnosed
12

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).
13
See P.H., Docket No. 16-0654 (issued July 21, 2016); S.R., Docket No. 16-0657 (issued July 13, 2016); R.E.,
Docket No. 14-0868 (issued September 24, 2014).
14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

See K.W., Docket No. 10-0098 (issued September 10, 2010).

16

Supra note 13.

6

condition, Dr. Shen’s opinion on causal relationship is of limited probative value.17 Furthermore,
no opinion was provided on causal relationship. A medical opinion should reflect a correct history
and offer a medically sound explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed conditions.18 As the reports of Dr. Shen are
deficient in these regards, his reports are of no probative value as he did not offer an opinion on
causal relationship.19
OWCP received a May 26, 2016 MRI scan of the lumbar spine read by Dr. Johnson, which
noted spinal abnormalities. However, the Board has held that diagnostic studies lack probative
value as they do not address whether the employment incident caused any of the diagnosed
conditions.20
Thus, the Board finds that the evidence of record is insufficient to meet appellant’s burden
of proof. On appeal, appellant argues that she was injured in the performance of duty and
submitted the requisite medical evidence. However, as found above, the medical evidence of
record was insufficiently rationalized to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before a
hearing representative, states: Before review under section 8128(a) of this title, a claimant for
compensation not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the decision, to a hearing
on his or her claim before a representative of the Secretary.21 A hearing is a review of an adverse
decision by a hearing representative. Initially, the claimant can choose between two formats: an
oral hearing or a review of the written record. In addition to the evidence of record, the claimant
may submit new evidence to the hearing representative.22 The Branch of Hearings and Review, in
its broad discretionary authority in the administration of FECA, has the power to hold hearings in
certain circumstances where no legal provision was made for such hearings and must exercise this
discretionary authority in deciding whether to grant a hearing.23 The Board has held that it must

17

See L.B., Docket No. 17-1600 (issued March 9, 2018).

18

See J.M., Docket No. 17-1002 (issued August 22, 2017).

19

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

See J.S., Docket No. 17-1039 (issued October 6, 2017).

21

5 U.S.C. § 8124(b)(1).

22

20 C.F.R. § 10.615.

23

D.M., Docket No. 08-1814 (issued January 16, 2009).

7

exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a hearing.
A request for a hearing must be made within 30 days after the date of the issuance of a final
OWCP decision. Appellant’s request for oral hearing was postmarked on August 16, 2016. As
the request was submitted more than 30 days following issuance of the July 15, 2016 decision, the
Board finds that it was untimely filed.
OWCP also has the discretionary power to grant an oral hearing even if the claimant is not
entitled to a review as a matter of right. The Board finds that OWCP, in its September 13, 2016
decision, properly exercised its discretion by indicating that it had considered the matter and had
denied appellant’s request for oral hearing as her claim could be equally well addressed through a
reconsideration application. The Board has held that as the only limitation on OWCP’s authority
is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deduction from established facts.25 In the present case, the evidence of record does not indicate
that OWCP acted unreasonably in denying appellant’s request in connection with its denial of
appellant’s request for an oral hearing which could be found to be an abuse of discretion.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted April 13, 2016 employment incident. Furthermore, the
Board finds that OWCP properly denied her request for a hearing.

24

See R.T., Docket No. 08-0408 (issued December 16, 2008).

25

See Daniel J. Perea, 42 ECAB 214 (1990).

8

ORDER
IT IS HEREBY ORDERED THAT the September 13 and July 15, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 12, 2018
Washington, DC

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

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

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

9