United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 19-1600
Issued: March 13, 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 July 21, 2019 appellant filed a timely appeal from an April 18, 2019 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 her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2019, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following OWCP’s April 18, 2019 decision appellant submitted 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 February 18, 2019 appellant, then a 45-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained a fracture at her T12 vertebra when she fell
backwards walking into the building, and landing on her back while in the performance of duty.
She indicated that she experienced pain in her mid-to-lower back. Appellant stopped work on the
date of injury and returned to work on February 20, 2019.
In an attached statement of even date, appellant recounted that she was coming up a slight
incline into the building at approximately 4:20 a.m. when she fell backwards on the incline and
landed on her back. She felt immediate pain in her lower back. Appellant attempted to call one
of her coworkers for assistance, but when no one came to help she turned on her side and crawled
over to a wall to use to pull herself up to her feet. She indicated that she could not stand up straight
without feeling a sharp pain, but eventually made it into the building and took pain medication.
An hour later, appellant sought medical attention.
A February 18, 2019 visit summary from Dr. Halleh Akbarnia, Board-certified in
emergency medicine, noted that appellant presented for back pain related to a fall and diagnosed
a T12 compression fracture. He noted that a magnetic resonance imaging (MRI) scan of her
lumbar spine and x-rays of her pelvis and lumbosacral joint were performed. Dr. Akbarnia
provided treatment instructions, a prescription note and a medical note excusing appellant from
work until she could be seen by neurology.
In a letter dated February 26, 2019, the employing establishment controverted appellant’s
claim. It explained that, upon inspection of the area where she fell, there were no body prints in
the snow around the incline or her car to indicate that she had fallen or crawled to a wall to help
her stand. The employing establishment attached photographs of the area around appellant’s car
and the incline where the alleged fall took place asserting that the images showed no body prints
in the snow.
In a development letter dated March 5, 2019, OWCP advised appellant of the deficiencies
of her claim and instructed her as to the factual and medical evidence necessary to establish her
claim. It also noted that no firm diagnosis of a work-related condition had been provided by a
physician. OWCP asked appellant to complete a questionnaire to provide further details regarding
the circumstances of the claimed February 18, 2019 employment incident. It afforded her 30 days
to submit the necessary evidence.
OWCP continued to receive evidence. In a February 18, 2019 medical report,
Dr. Akbarnia, again noted that appellant presented with pain in her upper and lower lumbar regions
after she slipped and fell outside of the building at work and hit her back. Appellant also submitted
diagnostic reports of even date of an MRI scan and x-rays of her lumbar spine and pelvis from
Dr. Harry Brown, a Board-certified diagnostic radiologist.
In a February 21, 2019 duty status report (Form CA-17), Dr. Jonathan Cone, Boardcertified in family medicine, diagnosed a T12 fracture and noted tenderness in appellant’s lower
back due to a slip and fall.

2

Dr. Cone noted in medical reports dated February 21 and March 14, 2019 that appellant
slipped on ice on a ramp on February 18, 2019 and fell backward, landing on her back. He
diagnosed a stable burst fracture of the T11-12 vertebra. Dr. Cone also provided treatment
instructions for appellant’s injury.
In a March 11, 2019 medical report, Dr. Paul Ackerman, a Board-certified orthopedic
surgeon, reported that appellant’s pain in relation to her T12 compression fracture had improved
approximately 50 to 60 percent. In a Form CA-17 and medical note of even date, he provided
restrictions for her, instructed that she remain out of work and recommended that she perform
physical therapy for four to six weeks.
In response to OWCP’s questionnaire, appellant submitted a March 14, 2019 statement, in
which she explained that, on the alleged date of injury, her fall actually took place on the dock,
which was right at the incline. She attached photographs of the dock area and indicated that there
was limited lighting during work hours. Appellant also indicated that she had no other injuries
before she sustained the injury to her lower back.
In an April 2, 2019 therapy note, Dr. Ackerman provided updates from appellant’s progress
from her physical therapy sessions from March 13 to April 2, 2019.
By decision dated April 18, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the injury and/or events occurred as appellant
described. It noted that she gave inconsistent statements as to where her fall occurred, which cast
serious doubt on the validity of her claim. OWCP concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 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.5 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.6

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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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.7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.8 Second, the
employee must submit sufficient evidence to establish that the employment incident caused a
personal injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his subsequent course of action.10
The employee has not met his burden of proof in establishing the occurrence of an injury when
there are inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.11
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury, and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established. An employee’s statements alleging that an injury
occurred at a given time and in a given manner is of great probative value and will stand unless
refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2019, as alleged.
Appellant has not established the factual component of her claim as she has insufficiently
explained how and where the claimed injury occurred.13 In her February 18, 2019 Form CA-1,
she provided that she sustained a fracture at her T12 vertebra when she was walking into work and
fell backwards, landing on her back. In her narrative statement of even date, appellant indicated
that she was coming up a slight incline into the building when she fell on her back and had to turn
on her side and crawl over to a wall in order to pull herself up to her feet before eventually having
to seek medical assistance.
In its February 26, 2019 letter of controversion, the employing establishment explained,
that, upon investigation, there were no body prints in the snow around the incline or appellant’s
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

See E.C., Docket No. 19-0943 (issued September 23, 2019).

12

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

13

See E.C., supra note 11.

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car to indicate that she had fallen or crawled through the snow. The employing establishment also
provided photographs of the area around the incline and her car to support its assertion that
appellant did not fall on her back as alleged. In response, appellant explained in her March 14,
2019 statement that her fall actually took place on a dock by the incline and provided photographs
of a later date demonstrating that there was limited lighting during the time in which the injury
occurred.
The Board finds that appellant’s description of the incident in her Form CA-1 and
February 18, 2019 statement of falling on her back while going up an incline into the building was
inconsistent with the description she provided in her March 14, 2019 narrative statement that she
fell at a dock by the incline. Appellant’s varying descriptions of what occurred on February 18,
2019 do not establish a singular account of the mechanism of injury.14 Further, the history of
injury she related to her medical providers further detailed inconsistent descriptions of the
mechanism of injury. Dr. Akbarnia’s February 18, 2019 medical report did not provide a specific
location for where the alleged injury occurred, as he only related that appellant slipped and fell
outside of the building. Dr. Cone’s February 21 and March 14, 2019 reports provide that she
slipped on ice on a ramp and made no mention of either an incline or a dock. The medical records
therefore reflect that appellant did not report a consistent history of injury to her medical
providers.15 Thus, the Board finds that she has not established that she sustained an injury in the
performance of duty on February 18, 2019 as alleged because she did not submit sufficient
evidence to establish that she actually experienced the incident at the time, place, and in the manner
alleged.16 Appellant did not provide a consistent description of the alleged employment incident
and the mechanism by which she sustained an injury, and therefore the Board finds that she has
not met her burden of proof.17
As appellant has not met her burden of proof to establish that the February 18, 2019
incident occurred in the performance of duty, as alleged, it is unnecessary to address the medical
evidence of record regarding causal relationship.18
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 establish a traumatic
injury in the performance of duty on February 18, 2019, as alleged.
14

Id.

15

See F.H., Docket No. 19-1209 (issued November 20, 2019).

16

Supra note 11.

17

H.D., Docket No. 15-1698 (issued May 4, 2016).

18
J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015);
Alvin V. Gadd, 57 ECAB 172 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the April 18, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 13, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, Tonalea, AZ, Employer
__________________________________________

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

Docket No. 08-1337
Issued: March 12, 2009

Case Submitted on the Record

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

JURISDICTION
On April 2, 2008 appellant filed a timely appeal from the March 6, 2008 merit decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant to
20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a traumatic injury in the performance of duty on
August 3, 2007.
FACTUAL HISTORY
On August 5, 2007 appellant, a 41-year-old maintenance worker, filed a traumatic injury
claim alleging that, on August 3, 2007, he sustained injuries to his legs and right arm, when he
fell from a ladder at work.
Appellant was treated by Dr. Darrell Bunch, a treating physician. In an August 3, 2007
report from Page Hospital, Dr. Bunch stated that appellant presented with pain in his knees,
ankles and back, after falling off a ladder at work. He noted a prior back injury in 1998, when

appellant fell from a horse. Dr. Bunch’s August 4, 2007 discharge summary reflected a final
diagnosis of low back, shoulder and ankle pain. In an August 8, 2007 attending physician’s
report (Form CA-20), appellant stated that he sustained injuries to his right shoulder and low
back on the date in question, when he slid down a ladder and hit his head. Dr. Bunch diagnosed
bilateral knee pain and tenosynovitis of both ankles and indicated, by placing a checkmark in the
“yes” box, his belief that appellant’s condition was caused or aggravated by an employment
event. On August 8, 2008 he stated that appellant spent the night in the hospital after falling
from a ladder at work. Dr. Bunch diagnosed minor contusions of the knees, shoulder and back
pain and tenosynovitis of the ankles and recommended that appellant be “off work” for two
weeks.
In notes dated August 22, 2007, Dr. Bunch related appellant’s complaints of persistent
leg, neck and low back pain and opined that he was disabled from August 3 to 22, 2007. On
September 4, 2007 he stated that appellant was experiencing persistent pain and had been
disabled since August 3, 2007. Attending physicians’ reports dated September 4 and 13, 2007
reflected diagnoses of tenosynovitis, knee pain and lower back pain. In both reports, Dr. Bunch
checked the “yes’ box, indicating his belief that appellant’s condition was causally related to his
employment injury.
In a report dated September 7, 2007, Dr. Romas Lewicky, a treating physician, stated that
appellant was experiencing pain in his low back, knees, feet, ankles, right shoulder, right elbow
and right wrist after falling from a ladder on August 3, 2007. His examination of the lumbar
region revealed decreased forward flexion, with pain and spasm and, tenderness to the touch over
the L4-5 area. Dr. Lewicky found decreased sensation in the feet and deep tendon reflexes were
absent. He found slight varus in the knees bilaterally; crepitus and popping under the right
patella; tenderness over the right medial meniscus; and anterior tenderness over the left knee.
Dr. Lewicky diagnosed contusions of the lower limbs and neck; a tear of the right medial
meniscus; and a herniated lumbar disc. He recommended “no work for at least one month while
he [was] recovering from his relatively severe fall.”
The record contains physical therapy reports and notes for the period August 8 to
September 6, 2007. The record also contains: an August 3, 2007 report of a computerized
tomography (CT) scan of the head, brain and cervical spine; x-rays of the chest, feet and the
lumbosacral and thoracic spine dated August 3, 3007; and a report of a September 26, 2007
magnetic resonance imaging (MRI) scan of the lumbar spine.
In a letter dated November 15, 2007, the Office advised appellant that the information
submitted was insufficient to establish his claim. It requested additional information, including a
detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to the cause of the diagnosed condition.
Medical evidence submitted by appellant included a November 27, 2007 report from
Dr. Franklin Roth, Board-certified in the field of family medicine, who diagnosed degenerative
joint disease (DJD) of the knees bilaterally, lumbar disc disease and spinal stenosis. Dr. Roth
stated that appellant’s knee condition was aggravated by a fall at work.

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In a narrative report dated December 11, 2007, Dr. Bunch stated that he examined
appellant on August 3, 2007, after he fell from a ladder at work. Appellant was admitted to the
hospital for observation. X-rays at the time were unremarkable and he was released the next day.
On August 8, 2007 appellant complained of lower back pain, as well as pain in his knees, ankles,
right shoulder and elbow. An MRI scan of the lumbar spine revealed disc disease with a bulge at
L4 and L5, degenerative joint disease of the facet joints and spinal stenosis at L4-L5.
Appellant submitted reports dated October 23 and 29, 2007 and January 3, 2008 from
Dr. James E. Thomas, Board-certified in the field of family medicine, who diagnosed lower
back, knee and bilateral ankle pain. On January 3, 2008 Dr. Thomas indicated that appellant
sustained injuries on August 3, 2007, when he fell approximately 15 feet from a ladder. By
placing a checkmark in the appropriate box, he indicated his belief that appellant’s condition was
caused by his employment injury.
By decision dated March 6, 2008, the Office denied appellant’s claim. Accepting that the
work event occurred as alleged, it found that the medical evidence did not contain a diagnosis
that could be connected to the accepted event and, therefore, was insufficient to establish that
appellant had sustained an injury under the Federal Employees’ Compensation Act on
August 3, 2007.
LEGAL PRECEDENT
The Act provides for payment of compensation for disability or death of an employee,
resulting from personal injury sustained while in the performance of duty.1 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, “arising out of and in the
course of employment.”2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components which must be considered in conjunction with one another. The first is whether
the employee actually experienced the incident that is alleged to have occurred at the time, place

1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
3

Robert Broome, 55 ECAB 339 (2004).

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and in the manner alleged. The second is whether the employment incident caused a personal
injury and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 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 a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his claim. The claimant has the burden of establishing by the weight of
reliable, probative and substantial evidence that the condition for which compensation is sought
is causally related to a specific employment incident or to specific conditions of the employment.
As part of this burden, the claimant must present rationalized medical opinion evidence, based
upon a complete and accurate factual and medical background, establishing causal relationship.10
However, it is well established that proceedings under the Act are not adversarial in nature and
4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), (ee).
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).
7

8

Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

20 C.F.R. § 10.303(a).
9

John W. Montoya, 54 ECAB 306 (2003).

10

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

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while the claimant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.11
The Office accepted that the August 3, 2007 incident occurred as alleged, but found that
there was no medical evidence that provided a diagnosis that could be connected to that injury.
The Board finds, however, that the medical evidence of record supports that appellant sustained a
work-related injury on August 3, 2007.
Dr. Bunch examined appellant on the date of the accepted incident, noting his complaints
of pain in his knees, ankles and back, after falling off a ladder at work. After keeping him
overnight for observation, he diagnosed low back, shoulder and ankle pain. On August 8, 2007
noting an increase in pain following the August 3, 2007 fall, Dr. Bunch diagnosed contusions of
the knees, bilateral knee pain, tenosynovitis of both ankles and shoulder and back pain. His
attending physician’s reports consistently reflected his belief that appellant’s condition and
resulting disability, was caused or aggravated by the employment incident. The Board notes that
Dr. Bunch expressed his opinion on causal relationship by placing a checkmark in the “yes” box
on the Office’s form. The Board has previously found that a report that addresses causal
relationship with a checkmark, without a medical rationale explaining how the work event
caused the alleged injury, is of diminished probative value and is insufficient to establish causal
relationship.12 However, in this case, the opinion expressed by the physician is supported by his
treatment of appellant’s injuries immediately following the accepted incident, which included an
overnight stay in a hospital. While Dr. Bunch’s reports do not provide rationale, they do support
appellant’s claim that he sustained a traumatic injury on the date in question.
The remaining medical evidence of record also supports appellant’s claim. On
September 7, 2007 Dr. Lewicky stated that appellant was experiencing pain in his low back,
knees, feet, ankles, right shoulder, right elbow and right wrist after falling from a ladder on
August 3, 2007. His examination of the lumbar region revealed decreased forward flexion, with
pain and spasm, and tenderness to the touch over the L4-5 area. Dr. Lewicky found decreased
sensation in the feet and deep tendon reflexes were absent. He found slight varus in the knees
bilaterally; crepitus and popping under the right patella; tenderness over the right medial
meniscus; and anterior tenderness over the left knee. Dr. Lewicky diagnosed contusions of the
lower limbs and neck; a tear of the right medial meniscus; and a herniated lumbar disc. He
recommended “no work for at least one month while [appellant was] recovering from his
relatively severe fall.” Dr. Lewicky’s recommendation that appellant refrain from working for a
month in order to recover from the effects of the August 3, 2007 fall, effectively constitutes an
opinion that his diagnosed conditions were causally related to the fall.
On November 27, 2007 Dr. Roth diagnosed DJD of the knees bilaterally, lumbar disc
disease and spinal stenosis. He stated that appellant’s knee condition was aggravated by a fall at
work. Dr. Thomas diagnosed lower back, knee and bilateral ankle pain, indicating that appellant
sustained injuries on August 3, 2007, when he fell approximately 15 feet from a ladder. By
11

Phillip L. Barnes, 55 ECAB 426 (2004). See also Virginia Richard, supra note 10; Dorothy L. Sidwell, 36
ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).
12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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placing a checkmark in the appropriate box, he indicated his belief that appellant’s condition was
caused by his employment injury. While these physicians did not provide rationale for their
opinions, their reports provide support for appellant’s claim that he sustained an injury on
August 3, 2007 and are factually consistent with his treatment for his employment-related injury.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that he sustained an employmentrelated injury to his lower extremities and back and are not contradicted by any substantial
medical or factual evidence of record. While the reports are not sufficient to meet his burden of
proof to establish his claim they raise an uncontroverted inference between appellant’s claimed
condition and the accepted employment incident and are sufficient to require the Office to further
develop the medical evidence and the case record.13 On remand the Office shall obtain a
rationalized opinion from a qualified physician as to whether appellant’s current condition is
causally related to the accepted incident and shall issue an appropriate decision in order to
protect his rights of appeal.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty.

13

See Virginia Richard, supra note 10; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the March 6, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: March 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, GRAVESEND POST
OFFICE, Brooklyn, NY, Employer
__________________________________________

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

Docket No. 19-0804
Issued: August 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 4, 2019 appellant, through counsel, filed a timely appeal from a January 29,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left knee condition
causally related to the accepted February 9, 2017 employment incident.
FACTUAL HISTORY
On February 15, 2017 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 9, 2017 she sustained a possible fracture of her
bottom left leg while walking back and forth through a foot of snow while in the performance of
duty. She noted that, at the end of the day, she experienced a lot of pain in her left knee. Appellant
further noted that she also had left knee pain since an injury she sustained at work in 2009. She
stopped work on February 10, 2017 and has not returned.
OWCP subsequently received a form letter dated February 13, 2017 by Dr. Natalie Arnoff,
a family practitioner. Dr. Arnoff noted that appellant was being treated for leg and knee
conditions. She released appellant to return to work on February 18, 2017. In an undated referral
form, Dr. Arnoff ordered x-rays of appellant’s left tibia/fibula.
OWCP, in a development letter dated February 22, 2017, informed appellant of the
deficiencies of her claim. It requested that she submit a narrative medical report from her physician
which contained a detailed description of findings and diagnoses, explaining how the reported
incident caused or aggravated her medical condition. OWCP also provided a questionnaire for
appellant’s completion. It noted that it was not clear if she was filing an occupational disease or
traumatic injury claim and requested clarification on her claim. OWCP afforded appellant 30 days
to respond.
OWCP thereafter received a prescription note dated February 16, 2017 by Dr. Pushp R.
Bhansali, an attending orthopedic surgeon, who noted that he evaluated appellant on that day for
a “right knee injury.” He placed her off work for two weeks.
In a statement dated February 17, 2017, appellant described the alleged employment
incident and reiterated that it occurred on February 9, 2017. She noted that she walked back and
forth for five hours in a foot of snow from the employing establishment station to a building where
she was delivering mail. Appellant experienced pain in her leg and knee as she limped back on
her last trip to the station. Upon her return, she informed her supervisor about her injury. On
February 10, 2019 appellant still had pain and she called a second supervisor to report the alleged
employment incident. She also called out of work on that day on the call-out system and requested
continuation of pay.
On February 28, 2017 appellant responded to OWCP’s development questionnaire. She
reiterated the history of her claimed February 9, 2017 employment injury, the reporting of her
injury to her supervisor on the following day, and her left leg and knee symptoms. Appellant
indicated that 2009 and 2011 she developed work-related tendinitis in her left knee.

2

Appellant submitted additional prescription notes dated February 16, 2017 from
Dr. Bhansali. Dr. Bhansali noted that appellant had a left torn meniscus. He ordered a left knee
brace and medication.
OWCP received additional medical evidence from Dr. Bhansali. In a medical report dated
February 16, 2017, Dr. Bhansali noted that appellant related a history that she was involved in a
work-related accident on February 9, 2017 while working as a mail carrier. She was making her
rounds while walking through heavily covered snowy streets. At the time of her last drop off, she
began to develop progressive pain in her left knee and ﬁbula area. Appellant became concerned
because she had prior left knee injuries. She did not present to a local emergency room for
evaluation of her pain. Dr. Bhansali indicated that appellant presented to him for evaluation of her
persistent pain. He noted her medical and personal histories and discussed findings on physical
and x-ray examination. Dr. Bhansali diagnosed left knee internal derangement with post-traumatic
effusion. He recommended that appellant stay off work for two weeks and wear a left knee brace.
In a progress note dated March 2, 2017, Dr. Bhansali reiterated appellant’s history that she
sustained a work-related left knee injury on February 9, 2017. He reexamined her left knee and
restated his prior diagnosis of left knee internal derangement with post-traumatic effusion.
Dr. Bhansali recommended that appellant stay off work and undergo physical therapy. In a
March 2, 2017 prescription, he reiterated his diagnosis of left knee internal derangement and that
she was totally disabled from work. Dr. Bhansali ordered left knee orthotics. In a March 16, 2016
prescription, he reiterated that appellant had a left knee torn meniscus and placed her off work for
three weeks.
OWCP also received reports dated February 21 and March 2, 16, and 20, 2017 from
appellant’s physical therapist.
By decision dated March 31, 2017, OWCP accepted that the February 9, 2017 employment
incident occurred as alleged and that there was a diagnosed left knee condition. However, it denied
appellant’s traumatic injury claim finding that the medical evidence of record was insufficient to
establish causal relationship between her diagnosed condition and the accepted February 9, 2017
employment incident.
Thereafter, OWCP continued to receive medical evidence from Dr. Bhansali. In a progress
note dated March 16, 2017, Dr. Bhansali reiterated appellant’s history of injury and noted her
complaints of left knee pain and swelling. He also discussed physical examination findings and
reviewed a magnetic resonance imaging (MRI) scan which revealed a partial tear of the medial
meniscus, posterior horn. Dr. Bhansali addressed appellant’s treatment plan, which included
physical therapy three times a week, for three weeks, and use of a knee brace. He advised that she
would be evaluated in three weeks for a possible return to work. In a prescription note dated
April 5, 2017, Dr. Bhansali again diagnosed left knee torn meniscus. He ordered physical therapy
and placed appellant off work for three weeks.
In a letter received on April 27, 2017 and an appeal request form received on May 2, 2017,
appellant requested a review of the written record by a representative of OWCP’s Branch of
Hearings and Review. She submitted a progress note dated April 6, 2017 in which Dr. Bhansali

3

diagnosed a left knee torn medial meniscus. Dr. Bhansali advised that appellant should be able to
return to her regular work by the time of her reevaluation in about three weeks.
Appellant also submitted a left knee magnetic MRI scan report dated March 6, 2017 from
Dr. Joseph Hanono, a radiologist. Dr. Hanono provided impressions of shallow vertical tear in the
posterior horn of the medial meniscus and intact lateral meniscus. He found no evidence of
fracture or acute osseous or ligamentous injury.
OWCP subsequently received additional reports dated March 27 and 30 and April 6 and
27, 2017 from appellant’s physical therapist.
OWCP also received further progress notes dated April 27, May 18, June 22, and July 31,
2017 from Dr. Bhansali who continued to examine appellant’s left knee, review diagnostic test
results, and diagnose left knee internal derangement with torn meniscus and effusion. Dr. Bhansali
recommended arthroscopic surgery and advised that appellant was unable to return to work.
On July 11, 2017 appellant underwent left knee arthroscopic surgery performed by
Dr. Bhansali. The operative report noted a preoperative diagnosis of internal derangement of the
left knee “with a posttraumatic -- in the left knee” and postoperative diagnoses of partial tear of
the medial and lateral menisci and partial tear of the intrasubstance part of the anterior cruciate
ligament (ACL) with laxity of the ligament, and synovitis of the left knee.
Dr. Bhansali, in a letter dated October 16, 2017, advised that appellant sustained a left knee
injury due to the accepted February 9, 2017 work-related incident. He related that, although she
reported having left knee injuries prior to the date of this incident, she was fully functional.
Dr. Bhansali maintained that the February 9, 2017 employment incident caused appellant’s knee
pain. He noted that MRI scan results conﬁrmed that she had a tear of the meniscus which required
surgical repair on July 11, 2017.
In a progress note dated October 26, 2017, Dr. Bhansali noted that appellant had a prior
left knee injury that was improving until an x-ray performed on February 9, 2017 revealed that it
had been aggravated. He further noted that her pain worsened and she required a new left knee
MRI scan, which was positive for a torn meniscus. Appellant required left knee arthroscopic
surgery which was performed on September 15, 2017.
By decision dated December 8, 2017, an OWCP hearing representative affirmed OWCP’s
March 31, 2017 decision finding that the medical evidence of record was insufficient to establish
appellant’s claim as it did not contain a rationalized physician’s opinion explaining how her left
knee condition was caused or aggravated by the accepted February 9, 2017 employment incident.
Thereafter, OWCP continued to receive progress notes dated July 23 and September 20,
2018 from Dr. Bhansali who restated a history of the accepted February 9, 2017 employment
incident. Dr. Bhansali also noted that appellant sustained left knee injuries in 2009 and 2011, but
she did not seek medical treatment for those injuries. He further noted that she had been working
to the full extent until her February 9, 2017 injury. Dr. Bhansali related that, possibly while
appellant was walking in the snow, she could not keep her balance with her prior left knee injury
and sustained a twisting injury to the left knee. He indicated that she did not fall on the ground
and there was no direct trauma to the left knee. Dr. Bhansali again noted that a left knee MRI scan
4

revealed a meniscus tear and effusion. He also again discussed findings on physical examination.
Dr. Bhansali reiterated his prior diagnoses of partial tear of the medial and lateral meniscus and
partial tear of the ACL with synovitis in the left knee. He maintained that the present injury
worsened appellant’s prior injury and that she presently required left knee arthroscopic surgery.
On November 6, 2018 appellant, through counsel, requested reconsideration of OWCP’s
December 8, 2017 decision. She resubmitted Dr. Bhansali’s September 20, 2018 progress note.
OWCP, by decision dated January 29, 2019, denied modification of the December 8, 2017
decision, finding that appellant had not provided rationalized medical opinion evidence sufficient
to establish causal relationship between the diagnosed left knee conditions, aggravation of her
preexisting conditions, and the accepted February 9, 2017 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,3 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.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon complete factual and medical background, showing a causal relationship
between the claimed condition and the identified factors.7 The belief of the claimant that a

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

Id.

7
R.R., Docket No. 18-1093 (issued December 18, 2018); Lourdes Harris, 45 ECAB 545 (1994); see Walter D.
Morehead, 31 ECAB 188 (1979).

5

condition was caused or aggravated by the employment is insufficient to establish a causal
relationship.8
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 factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted February 9, 2017 employment incident.
In support of her claim, appellant submitted a series of reports from her physician,
Dr. Bhansali. In a report dated October 16, 2017 and progress notes dated July 23 and
September 20, 2018, Dr. Bhansali diagnosed partial tear of the medial and lateral meniscus and
partial tear of the ACL with synovitis of the left knee. He reported that, although appellant had a
history of left knee injuries, she was fully functional prior to the accepted February 9, 2017
employment incident. Dr. Bhansali opined that the accepted employment incident aggravated her
prior left knee injuries for which she underwent arthroscopic surgery on September 15, 2017, but
he did not provide medical reasoning or rationale explaining how the accepted employment
incident caused or aggravated any diagnosed condition.10 Medical evidence that states a
conclusion, but does not offer a rationalized medical explanation regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.11 The need
for rationalized medical opinion based on medical rationale is especially important in this case as
the evidence suggests that appellant had preexisting left knee conditions.12 As Dr. Bhansali did
not provide a rationalized medical opinion regarding causal relationship, his reports are of limited
probative value.13
Dr. Bhansali’s remaining prescription notes, reports, and progress notes are also of limited
probative value. Within these additional reports, he diagnosed torn meniscus and internal
derangement with post-traumatic effusion of the left knee, and addressed appellant’s disability
from work and medical treatment. However, Dr. Bhansali failed to provide an opinion as to
8

See M.J., Docket No. 17-0725 (issued May 17, 2018); see also Lee R. Haywood, 48 ECAB 145 (1996); Kathryn
Haggerty, 45 ECAB 383, 389 (1994).
9

A.W., Docket No. 19-0327 (issued July 19, 2019); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 45 ECAB 345
(1989).
10
See M.E., Docket No. 18-0940 (issued June 11, 2019); A.M., Docket No. 10-0205 (issued October 5, 2010) (a
physician’s opinion must be independent from a claimant’s belief regarding causal relationship).
11

See M.E., id.; S.H., Docket No. 17-1447 (issued January 11, 2018).

12

See M.E., supra note 10; E.V., Docket No. 17-0417 (issued September 13, 2017).

13

Supra note 10.

6

whether the accepted February 9, 2017 employment incident caused or aggravated appellant’s
diagnosed left knee conditions. The Board has held that 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 For this reason, these additional reports from Dr. Bhansali are insufficient
to establish appellant’s claim.
Appellant has submitted diagnostic imaging studies in the form of a March 6, 2017 MRI
scan from Dr. Hanono in support of her claim. The Board has held that diagnostic studies lack
probative value as they do not provide an opinion on causal relationship between the employment
incident and appellant’s diagnosed conditions.15 This report is therefore also insufficient to
establish appellant’s claim.
Appellant also submitted Dr. Arnoff’s report and undated referral form which noted that
appellant had leg and knee conditions and that x-rays of her left tibia//fibula were ordered.
Dr. Arnoff did provide a history of injury, a firm diagnosis of a particular medical condition, or a
rationalized opinion regarding causal relationship.16 For the stated reasons, the Board finds that
her reports are insufficient to establish the claim.
Finally, the reports dated February 21 through April 6, 2017 signed by appellant’s physical
therapist have no probative medical value. A physical therapist is not considered a “physician” as
defined under FECA. As such, this evidence is also insufficient to meet appellant’s burden of
proof.17
As there is no well-reasoned medical opinion establishing appellant’s claim for
compensation the Board finds that she has not met her burden of proof.
On appeal counsel contends that OWCP’s January 29, 2019 decision is contrary to fact and
law. For the foregoing reasons, the Board finds that the medical evidence of record is insufficient
to establish that appellant sustained a left knee condition causally related to the accepted
February 9, 2017 employment incident.
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.

14

See R.C., Docket No. 19-0376 (issued July 15, 2019); S.Y., Docket No. 18-1814 (issued April 18, 2019); M.H.,
Docket No. 18-1737 (issued March 13, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).
15

R.C., id.; C.B., Docket No. 18-0071 (issued May 13, 2019).

16

See A.A., Docket No. 18-0031 (issued April 5, 2018).

17

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); R.C., supra note 14; J.L., Docket No. 17-1207 (issued December 8, 2017) (a physical therapist
is not a physician under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also Gloria J. McPherson,
51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can
only be resolved through the submission of probative medical evidence from a physician).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee
condition causally related to the accepted February 9, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-626
Issued: October 7, 2010

Case Submitted on the Record

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

JURISDICTION
On January 6, 2010 appellant, through her representative, filed a timely appeal from the
November 10, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied her claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant is entitled to a schedule award as a result of her accepted
employment injuries.
FACTUAL HISTORY
On December 4, 2004 appellant, then a 47-year-old mail handler, sustained an injury in
the performance of duty when the forklift she was driving stopped abruptly. The Office accepted
her claim for bilateral knee strain and left elbow strain.
On April 1, 2009 appellant filed a claim for a schedule award. She submitted a
February 1, 2007 report from Dr. Sheldon Kaffen, an orthopedic surgeon and Office second

opinion physician, who examined appellant and diagnosed bilateral knee strain and left elbow
strain, “both resolved.” It was Dr. Kaffen’s opinion, based on the history, the physical
examination and his review of the medical documentation, that there were no objective findings
to establish that appellant had any residuals of the accepted medical conditions. “Examination of
the left elbow and both knees are entirely within normal limits.”
The Office informed appellant of the evidence her doctor needed to provide to establish
permanent impairment for a schedule award. It asked for an assessment of permanent
impairment according to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2008), including:
“1. Whether maximum medical improvement has occurred and, if so, the
approximate date; 2. Description of any restriction of movement in terms of
degrees of retained active motion; 3. Description of all other pertinent objective
findings -- decrease of strength, atrophy, ankylosis, sensory changes, or other, as
applicable; 4. Description of subjective complaints causing impairment -- pain,
discomfort; etc. and 5. Recommend percentage of impairment of the affected
member(s). Show how you arrived at the figure using the applicable tables in the
[A.M.A.,] Guides.”
In a May 21, 2009 decision, the Office denied appellant’s claim for a schedule award. It
found that she failed to submit medical evidence to establish a measurable impairment due to the
accepted bilateral knee and left elbow strains.
By decision dated November 10, 2009, an Office hearing representative affirmed. The
hearing representative noted that appellant’s representative requested 30 days to submit a
medical evaluation but that no medical evidence identifying permanent impairment was received.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
A claimant seeking schedule award compensation under the Act has the burden of
establishing the claim by the weight of the reliable, probative and substantial evidence.3 The

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).
3

See D.H., 58 ECAB 358 (2007); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55
(1968) and cases cited therein.

2

degree of any functional impairment is a medical question that can be established by medical
evidence from a physician.4
ANALYSIS
The Office accepted that appellant sustained bilateral knee and left elbow strains on
December 4, 2004. Having filed a claim for a schedule award, appellant has the burden to
establish that the accepted strains have caused a permanent physical impairment to her lower or
upper limbs.
The Office well advised appellant of the medical evidence needed, but she failed to
submit any evaluation of permanent impairment to support her claim for a schedule award.
Appellant submitted a February 1, 2007 report from Dr. Kaffen, an orthopedic surgeon, but his
findings indicated that she has no permanent impairment as a result of the accepted strains.
Dr. Kaffen’s examination of both knees and the left elbow were entirely within normal limits.
He concluded that the bilateral knee and left elbow strains had resolved.
Without a medical evaluation of permanent impairment under the sixth edition of the
A.M.A. Guides, appellant has failed to establish a prima facie claim for a schedule award. The
Board will therefore affirm the Office hearing representative’s November 10, 2009 decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award as a result of her accepted employment injuries.

4

See R.S., 58 ECAB 362 (2007).

3

ORDER
IT IS HEREBY ORDERED THAT the November 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2010
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Derry, NH, Employer
__________________________________________

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

Docket No. 07-1049
Issued: September 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 8, 2007 appellant filed an appeal of a January 18, 2007 decision of the Office
of Workers’ Compensation Programs denying her occupational disease claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that she sustained left wrist tendinitis in the
performance of duty.
FACTUAL HISTORY
On September 28, 2006 appellant, then a 47-year-old city carrier, filed an occupational
disease claim (Form CA-2) for left wrist tendinitis sustained in the performance of duty on or
before May 24, 2006. She attributed the condition to repetitively grasping mail with her left
hand. Appellant did not stop work. She submitted reports dated from October 2 to November 2,
2006 by Rob Lessard, a physician’s assistant.

In a November 9, 2006 letter, the Office advised appellant of the additional evidence
needed to establish her claim. The Office emphasized the need for a rationalized report from an
attending physician explaining how and why the identified work factors would cause the claimed
left wrist tendinitis. The Office noted that Mr. Lessard’s reports were not considered medical
evidence as a physician’s assistant is not a physician as defined under the Federal Employees’
Compensation Act.
In a November 2, 2006 report, Dr. John P. Daley, an attending Board-certified family
practitioner, diagnosed left carpal tunnel syndrome. In November 21, 2006 reports, he changed
the diagnosis to left de Quervain’s tendinitis beginning in May 2006, caused by appellant
continuously grasping mail with her left hand at work.1
In November 28, 2006 reports, Dr. Lance J. Klingler, an attending Board-certified
orthopedic surgeon, noted appellant’s postal employment. He diagnosed left de Quervain’s
tendinitis caused by grasping and holding letter mail in her left hand. Dr. Klingler administered
an injection and prescribed a thumb spica splint.
By decision dated January 18, 2007, the Office denied appellant’s claim on the grounds
that causal relationship was not established. The Office found that her duties as a letter carrier
required repetitive grasping and holding motions with the left hand. The Office further found
that appellant submitted insufficient rationalized medical evidence explaining how and why the
accepted work factors would cause the diagnosed left wrist tendinitis.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
1

November 21, 2006 left wrist x-rays were normal.

2

5 U.S.C. §§ 8101-8193.

3

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

4

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

2

diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial 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.5
ANALYSIS
Appellant submitted sufficient evidence to establish that her city letter carrier position
entailed repetitive grasping and holding with her left hand. She also submitted medical reports
diagnosing de Quervain’s tendinitis of the left wrist. To meet her burden of proof, appellant
must establish the causal relationship between the accepted work factors and her left wrist
tendinitis.
In November 2006 reports, Dr. Daley, an attending Board-certified family practitioner,
diagnosed de Quervain’s tendinitis of the left wrist. He attributed the de Quervain’s tendinitis to
appellant grasping mail with her left hand at work. Dr. Klingler, an attending Board-certified
orthopedic surgeon, also diagnosed left de Quervain’s tendinitis and attributed it to appellant
grasping and holding letter mail in her left hand at work. However, neither physician explained
how and why grasping or holding mail would cause or contribute to the diagnosed left wrist
tendinitis. Without such rationale, the opinions of Dr. Daley and Dr. Klingler are insufficient to
establish causal relationship.6 Appellant also submitted reports from Mr. Lessard, a physician’s
assistant. However, a physician’s assistant is not a physician under the Act. Therefore,
Mr. Lessard’s opinion is of no probative value.7 Appellant submitted insufficient medical
evidence to establish that the accepted work factors caused or contributed to her left wrist
tendinitis. She has failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained left wrist tendinitis
in the performance of duty.

5

Solomon Polen, 51 ECAB 341 (2000).

6

Steven S. Saleh, 55 ECAB 169 (2003).

7

5 U.S.C. § 8101(2); Richard E. Simpson, 57 ECAB ___ (Docket No. 05-1642, issued July 12, 2006).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2007 is affirmed.
Issued: September 4, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 17-0148
Issued: May 18, 2017

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 October 31, 2016 appellant, through counsel, filed a timely appeal from a
September 29, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a right shoulder
condition causally related to factors of her federal employment.
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

On appeal counsel contends the decision is contrary to fact and law.
FACTUAL HISTORY
On March 1, 2016 appellant, then a 63-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that on December 30, 2015 she first realized that her right
shoulder condition was due to prolonged repetitive use in the course of her federal employment.
She did not stop work.
In a December 30, 2015 report, Dr. Joseph Yacisen, a treating Board-certified orthopedic
surgeon, noted that appellant was seen for right shoulder pain complaints, which she related had
been occurring for the past four to six years. Appellant attributed her condition to her
employment as a rural carrier. A physical examination of appellant’s right shoulder revealed
positive O’Brien’s test, 180 degrees forward flexion, and intact internal and external rotation.
Dr. Yacisen reviewed an x-ray which showed a type 2 acromion with a 10-millimeter spur. He
diagnosed right shoulder pain, suspected labral tear, shoulder impingement, and lipoma.
A January 12, 2016 right shoulder magnetic resonance imaging (MRI) scan was
interpreted as showing a large supraspinatus tendon tear and a superior labrum at the biceps
insertion (SLAP) tear.
Dr. Yacisen, in a February 18, 2016 report, noted appellant’s complaints and provided a
history of appellant’s condition and examination findings. The physical examination of the right
shoulder showed positive O’Brien’s test, 160 degrees forward flexion, 5+/5 internal and external
rotation strength, and positive impingement signs. Dr. Yacisen related that review of appellant’s
MRI scan showed subchondral cyst at the supraspinatus insertion, complete supraspinatus tendon
tear, and SLAP tear. He diagnosed rotator cuff tear and SLAP tear of the right shoulder.
In a March 23, 2016 report, Dr. Yacisen reiterated appellant’s history of injury and
examination findings. A physical examination performed that day revealed 150 degrees right
shoulder forward flexion, positive drop arm test, positive Obrien’s test, and 5+/5 internal and
external rotation strength. Diagnoses included SLAP tear, shoulder pain, and rotator cuff tear of
the right shoulder.
In a letter dated April 15, 2016, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. It advised her regarding the medical and factual evidence
required to establish her claim. Appellant was afforded 30 days to provide the requested
information.
On May 13, 2016 Dr. Yacisen reported the dates on which appellant was evaluated for
complaints of right shoulder pain. He related that there was no known injury mechanism for the
last four to five years. Dr. Yacisen related that appellant’s positive O’Brien’s test was indicative
of a shoulder labral tear, x-ray interpretations revealed a 10-millimeter subacromial spur and two
acromion, and her MRI scan showed a SLAP tear, supraspinatus tendon tear with retraction, and
subchondral cyst at the supraspinatus insertion. He explained that the positive impingement sign
was indicative of subacromial impingement and the drop arm test was indicative of a
supraspinatus tear. Dr. Yacisen recommended surgery and released appellant to regular-duty

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work. He observed that work could have contributed to the diagnosed conditions if the work
duties required carrying heavy loads with her hands, carrying or lifting heavy loads above or on
the shoulders, working at intervals of more than 15 minutes at a time with arms raised above the
shoulders, pulling or pushing heavy loads, and repetitive wrist or arm movements with force for
long periods of time.
By decision dated May 26, 2016, OWCP denied appellant’s claim. It found the medical
evidence of record was insufficient to establish a causal relationship between the diagnosed right
shoulder supraspinatus tear and SLAP tear.
On July 6, 2016 OWCP received appellant’s request for reconsideration. In support of
her request, appellant submitted a June 29, 2016 letter from Dr. Yacisen. Dr. Yacisen opined
that in his expert opinion appellant’s right shoulder conditions were “likely directly related
and/or caused” by the repetitive movements, overhead work, and repeated heavy lifting for over
23 years.
By letter dated August 18, 2016, OWCP informed appellant that additional evidence was
required to establish a causal relationship between her work factors and the diagnosed right
shoulder conditions. It noted that she had been copied on a letter it had sent to Dr. Yacisen
regarding further development. OWCP advised appellant that it was her responsibility to ensure
the additional evidence from Dr. Yacisen was received within the time frame allocated in the
letter.
In a letter to Dr. Yacisen, dated August 18, 2016, OWCP provided a statement of
accepted facts and accepted definitions sheet for review. It requested Dr. Yacisen explain how
appellant’s work exposure caused or aggravated the diagnosed conditions and requested a
response be submitted within 30 days from the date of the letter. No response was received.
By decision dated September 29, 2016, OWCP denied modification. It found that
Dr. Yacisen had failed to provide a firm and rationalized opinion supported by objective findings
to establish that the factors of appellant’s employment caused or contributed to her right shoulder
condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

5 U.S.C. § 8101 et seq.

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employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
Appellant attributed her right shoulder condition to prolonged repetitive use. The Board
finds that appellant failed to submit sufficient medical evidence to establish a right shoulder
condition causally related to accepted factors of her employment as a rural carrier. For this
reason, appellant did not discharge her burden of proof.
In support of her claim, appellant submitted reports from Dr. Yacisen covering the period
December 30, 2015 to June 29, 2016. Dr. Yacisen diagnosed right shoulder pain and suspected
labral tear, lipoma, and shoulder impingement in a December 30, 2015 report. In reports dated
February 18 and March 23, 2016, he diagnosed rotator cuff tear, shoulder pain and SLAP tear.
None of these reports by Dr. Yacisen contain any opinion regarding the cause of the diagnosed
conditions. The Board has held that medical evidence that does not offer any opinion regarding

4

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

5

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

6

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D'Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.10
In a May 13, 2016 report, Dr. Yacisen diagnosed labral tear, SLAP tear, supraspinatus
tendon tear with retraction, chondral cyst at the supraspinatus insertion, 10-millimeter
subacromial spur, and two acromion. He opined that the diagnosed conditions could be due to
her work if it involved carrying heavy loads, lifting or carrying heavy loads above or on her
shoulders, working at intervals of 15 minutes with her arms raised above her shoulder, repetitive
wrist or arm movements with force for extended periods of time, and pulling or pushing heavy
loads. Similarly, in a June 29, 2016 letter, Dr. Yacisen explained that appellant’s overhead work,
repetitive movements, and repeated heavy lifting for the past 23 years were the likely cause of
appellant’s right shoulder conditions. The Board has held that medical opinions which are
speculative or equivocal are of diminished probative value.11 Furthermore, a mere conclusion
without the necessary rationale explaining how work activities could result in the diagnosed
condition is insufficient to meet appellant’s burden of proof.12 Dr. Yacisen’s opinion is of
limited probative value as it does not contain any medical rationale explaining how appellant’s
job duties physiologically caused the diagnosed shoulder conditions.13
OWCP attempted to assist appellant in obtaining a rationalized medical opinion from
Dr. Yacisen. On August 18, 2016 it provided a statement of accepted facts and accepted
definitions for his use in explaining how appellant’s work duties caused or contributed to her
diagnosed condition. However Dr. Yacisen did not respond. As such his existing reports are
insufficient to discharge appellant’s burden of proof as they do not present a rationalized medical
opinion regarding causal relationship.
The remaining evidence submitted by appellant is insufficient to establish causal
relationship. The diagnostic test results of record fail to provide an opinion addressing the causal
relationship of appellant’s condition.14
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds the attorney’s arguments are not
substantiated.

10

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
11

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related, or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
12

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

13

S.H., Docket No. 16-1227 (issued February 9, 2017).

14

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).

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CONCLUSION
The Board finds appellant has not met her burden of proof to establish a right shoulder
condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2016 is affirmed.
Issued: May 18, 2017
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
__________________________________________
R.H., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 10-958
Issued: November 15, 2010

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant filed a timely appeal of a February 4, 2010 decision of
the Office of Workers’ Compensation Programs denying further merit review. Because over 180
days elapsed between the most recent merit decision of April 1, 2009 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of appellant’s case pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 2, 2002 appellant, then a 53-year-old safety specialist, filed an occupational
disease claim alleging that he developed pain in his wrists and forearms while typing. The
Office accepted his claim for bilateral carpal tunnel syndrome. Appellant returned to work. On

June 1, 2005 he filed a notice of recurrence of disability alleging that on May 1, 2005 his carpal
tunnel syndrome symptoms increased. The Office authorized continuing medical treatment on
June 16, 2005. Appellant underwent a left carpal tunnel release on April 4, 2008. Dr. Perry
Savage, a Board-certified orthopedic surgeon, performed a right carpal tunnel release on
May 9, 2008.
Appellant requested a schedule award on August 12, 2008. On October 6, 2008 he
underwent electrodiagnostic studies which revealed moderate bilateral carpal tunnel syndromes.
In an October 13, 2008 note, Dr. Savage opined that appellant had reached maximum medical
improvement and had five percent permanent impairment of each hand. On October 31, 2008 he
indicated that he based his impairment rating on the 5th edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.1 The district medical adviser,
Dr. Daniel D. Zimmerman, a Board-certified orthopedic surgeon, reviewed the record on
January 23, 2009. He found that additional medical evidence was required as Dr. Savage did not
provide the documentation required by the A.M.A., Guides in support of his impairment rating.
The Office referred appellant for a second opinion evaluation with Dr. Jack D. Denver,
Board-certified in physical medicine and rehabilitation. Dr. Denver examined appellant on
March 5, 2009 and found give way weakness during muscle testing with no atrophy. He stated
that appellant demonstrated obvious poor effort during Froment’s sign. Dr. Denver determined
that appellant had 33 percent impairment of the right upper extremity and 16 percent impairment
of the left upper extremity. Dr. Zimmerman reviewed this report on March 21, 2009 and found
that appellant had no ratable impairment of his upper extremities as the examination findings
were not reliable or credible.
By decision dated April 1, 2009, the Office denied appellant’s request for a schedule
award based on Dr. Zimmerman’s review of the medical evidence.
Appellant requested reconsideration on January 10, 2010 and stated that his hands tingled
continuously. He resubmitted Dr. Savage’s October 13 and 31, 2008 notes, the October 6, 2008
electrodiagnostic study and a portion of a functional capacity evaluation signed by an
occupational therapist. Appellant also submitted a note from Dr. Savage dated April 16, 2009
prescribing bilateral carpal tunnel splints.
By decision dated February 4, 2010, the Office denied reconsideration of the merits. It
reviewed the evidence and found that appellant failed to submit relevant new evidence in support
of his claim for a schedule award.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides in section 8128(a) that the Office
may review an award for or against payment of compensation at any time on its own motion or
on application by the claimant.2 Section 10.606(b) of the Code of Federal Regulations provide
1

A.M.A., Guides (5th ed. 2000).

2

5 U.S.C. §§ 8101-8193, 8128(a).

2

that a claimant may obtain review of the merits of the claim by submitting in writing an
application for reconsideration which sets forth arguments or evidence and shows that the Office
erroneously applied or interpreted a specific point of law; or advances a relevant legal argument
not previously considered by the Office; or includes relevant and pertinent new evidence not
previously considered by the Office.3 Section 10.608 of the Office’s regulations provide that
when a request for reconsideration is timely, but does not meet at least one of these three
requirements, the Office will deny the application for review without reopening the case for a
review on the merits.4
ANALYSIS
In an April 1, 2009 decision, the Office denied appellant’s claim for a schedule award.
Appellant requested reconsideration on January 10, 2010. He resubmitted reports from
Dr. Savage addressing his permanent impairment. The Board has held that the submission of
evidence which repeats or duplicates evidence already of record does not constitute a basis for
reopening a case. As Dr. Savage’s reports were previously considered by the Office in issuing
the April 1, 2009 merit decision, these reports are not relevant new evidence and are not
sufficient to require the Office to reopen appellant’s claim for consideration of the merits.5
Appellant submitted an additional note from Dr. Savage dated April 16, 2009 prescribing
splints for his bilateral carpal tunnel syndrome. This note, while new medical evidence, is not
relevant to the issue of the extent of appellant’s permanent impairment. Appellant also
submitted a report from an occupational therapist. Lay individuals such as physician’s assistants,
nurses and physical therapists are not competent to render a medical opinion under the Federal
Employees’ Compensation Act.6 As this report is not medical evidence, it is not relevant to the
central issue in the claim, whether appellant sustained any permanent impairment due to his
accepted employment injury. The Board has held that the submission of evidence which does
not address the particular issue involved does not constitute a basis for reopening a case.7 As
these reports do not address the issue of appellant’s permanent impairment, the reports are not
sufficient to require the Office to review the merits of his case.
CONCLUSION
The Board finds that appellant’s January 10, 2009 request for reconsideration did not
provide pertinent new and relevant evidence requiring the Office to reopen his claim for
consideration of the merits.

3

20 C.F.R. § 10.606.

4

Id. at § 10.608.

5

M.E. 58 ECAB 694 (2007).

6

Id. at §§ 8101-8193, 8101(2); David P. Sawchuk, 57 ECAB 316 (2006).

7

M.E. supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the February 4, 2010 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: November 15, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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