United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SACRAMENTO MEDICAL CENTER,
Mather, CA, Employer
__________________________________________

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

Docket No. 16-1627
Issued: January 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 10, 2016 appellant, through counsel, filed a timely appeal from a July 15,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision, dated September 29, 2014, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.

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 OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On August 13, 2014 appellant, then a 49-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on June 4, 2014 at 7:30 a.m. she slipped and almost fell
in the parking lot. She noted that as she stepped out of her car and up onto the curb her foot
slipped multiple times. Appellant alleged that she sprained her right ring finger, fractured her
right hand, dislocated three middle toes, and bruised her right ankle.
In a letter dated August 21, 2014, OWCP noted that appellant had not filed her traumatic
injury claim within 30 days and was not entitled to continuation of pay (COP). In a separate
letter of the same date, it requested additional factual and medical evidence supporting
appellant’s traumatic injury claim.
Dr. Christine Bosserman, an emergency medicine physician, examined appellant on
September 12, 2014 and noted that appellant had slipped on the curb in the parking lot with
multiple twists and falls without hitting the asphalt. She related that appellant had placed her
right foot on the curb and slipped off three times while trying to move along the length of her
car. Dr. Bosserman indicated that appellant injured her right foot, toes, ankle, right ring finger,
and ribs. Appellant had initially received care from a podiatrist. This injury aggravated
preexisting right ankle arthritis. Dr. Bosserman diagnosed right foot joint pain.
By decision dated September 29, 2014, OWCP denied appellant’s traumatic injury claim
finding that she had not established that the employment incident occurred as alleged due to
delays in reporting the incident, delay in seeking medical treatment, and the failure to offer a
clear description of the employment incident. It also noted that she failed to submit medical
evidence of a diagnosed condition.
Appellant submitted a narrative statement describing the events of June 4, 2014. She
noted that she was parked in the nonpatient parking lot next to the curb. Appellant stepped out
of her car with her right foot on the curb and her left foot on the asphalt. Her right foot slipped
from the curb and twisted. Appellant repeated this motion twice more to get to the end of her
car. Her right foot began hurting and she sprained her ring finger on her right hand. Appellant
arrived at work at 7:30 a.m. and worked through lunch. She contacted her primary care
physician who ordered x-rays, wrapped her foot, and referred her to a podiatrist. The podiatrist
prescribed a cam walker which appellant wore for three weeks with no improvement. She then
sought treatment from Dr. Bosserman.
Dr. Kim Yen Vo, a Board-certified family practitioner, examined appellant on June 5,
2014 for right foot pain. Appellant included e-mails dated June 5, 2014 between Dr. Vo and
appellant noting that she had slipped the previous week and was experiencing ankle pain after
her foot slid off the curb and twisted. Appellant indicated that she had experienced this pain for
three days. On June 6, 2014 Dr. Vo provided results on examination and diagnosed right foot

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pain caused by slipping, tripping, or stumbling as well as right ankle arthritis and adjustment
disorder with anxiety. She listed appellant’s date of injury as May 28, 2014 when she was
stepping out from her car onto the curb and her right foot slipped with right ankle inversion.
Appellant also provided her treatment notes from Dr. Jake Lee, a podiatrist, beginning on
July 18, 2014.
Dr. Bosserman completed a report on October 6, 2014 and found moderate degenerative
osteoarthrosis of the anterior medial tibiotalar joint and mild-to-moderate degenerative
osteoarthrosis of the posterior subtalar joint. She again diagnosed right foot joint pain.
Dr. Masoud Ghalambor, a Board-certified orthopedic surgeon, examined appellant on
October 24, 2014. He described her history of injury as falling off a curb at work on June 4,
2014 injuring her right foot. Dr. Ghalambor found very limited range of motion in the right
ankle and crepitus with movement. He diagnosed closed fracture of the right metatarsal bones,
traumatic arthropathy right ankle and foot with metatarsal stress fracture, and preexisting right
ankle post-traumatic arthritis and talus fracture malunion. Dr. Ghalambor found that as a result
of her industrial injury appellant sustained an overloading of the right lateral foot with stress
fracture formation in the fourth and fifth metatarsals. On December 1, 2014 he noted that
appellant had experienced improvement with the cam walker and should continue to wear this
device.
Appellant requested an oral hearing from OWCP’s Branch of Hearings and Review on
January 7, 2015. By decision dated February 23, 2015, the Branch of Hearings and Review
denied appellant’s request for an oral hearing as it was untimely.
In a letter dated January 22, 2016, counsel requested that OWCP rescind the
September 29, 2014 decision based on a report from Dr. Ghalambor dated December 22, 2015.
In this report, Dr. Ghalambor noted that he first examined appellant on October 24, 2014 and
listed her date of injury as June 4, 2014. He indicated that the exact nature of appellant’s injury
was unknown and that it was more than likely a twisting injury due to stepping off a curb.
Dr. Ghalambor opined that, as a result of the twisting injury, appellant was bearing more weight
on the outside of her foot and eventually developed stress fractures. He noted that appellant
developed stress fractures as she had a preexisting severe arthritis of the right ankle and subtalar
joint.
On May 26, 2016 counsel noted that the motion to rescind should be considered a request
for reconsideration.
By decision dated July 15, 2016, OWCP declined to reopen appellant’s claim for
consideration of the merits finding that the January 22, 2016 request for reconsideration was
untimely filed and failed to demonstrate clear evidence of error on the part of OWCP.

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LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.5 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is timely.
In order to be timely, a request for reconsideration must be received by OWCP within one year
of the date of OWCP’s merit decision for which review is sought. Timeliness is determined by
the document receipt date of the reconsideration request, the “received date” in the Integrated
Federal Employee’s Compensation System (iFECS).6 The Board has found that the imposition
of this one-year time limitation does not constitute an abuse of the discretionary authority
granted OWCP under 5 U.S.C. § 8128(a).7
In those cases where requests for reconsideration are untimely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error pursuant to the untimely request.8 OWCP’s procedures provide that
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in OWCP’s regulations, if the claimant’s request for reconsideration
demonstrates “clear evidence of error” on the part of OWCP.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.10 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.12 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.13 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(February 2016). G.F., Docket No. 15-1053 (September 11, 2015).
7

Supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967.

8

Supra note 4 at 770.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (February 2016).

10

Supra note 4.

11

Leona N. Travis, 43 ECAB 227, 241 (1991).

12

Jesus D. Sanchez, supra note 5 at 968.

13

Supra note 11.

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record and whether the new evidence demonstrates clear error on the part of OWCP.14 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.15 The
Board must make an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.16
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
Counsel requested reconsideration of OWCP’s September 29, 2014 merit decision on
January 26, 2016. As this request was not received within one year of the most recent merit
decision, the Board finds that OWCP properly determined that it was untimely.
The Board further finds that appellant’s request for reconsideration failed to demonstrate
clear evidence of error. OWCP denied appellant’s traumatic injury claim finding as she had not
established that the employment incident occurred as alleged. Following the September 29, 2014
merit decision, appellant submitted a factual statement as well as medical evidence from
Drs. Vo, Lee, and Ghalambor. This evidence casts further doubt on the timing of appellant’s
alleged employment incident. Dr. Vo indicated that appellant sustained her right ankle injury on
May 28, 2014. This date is in keeping with the e-mail correspondence between appellant and
Dr. Vo in which appellant noted on June 5, 2014 that her ankle pain had continued over several
days.
Furthermore, Dr. Ghalambor’s December 22, 2015 note attributed appellant’s diagnosed
stress fractures not to her employment incident, but rather to the act of walking on her right foot
for several months after the initial injury.
The Board finds that the additional evidence submitted by appellant does not shift the
weight of the evidence in favor of the claimant nor does it raise a substantial question as to the
correctness of OWCP’s decision. Therefore, appellant has failed to demonstrate clear evidence
of error in her untimely request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
14

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

15

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

16

Nancy Marcano, 50 ECAB 110 (1998).

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ORDER
IT IS HEREBY ORDERED THAT July 15, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 4, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
A.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
NEW JERSEY HEALTH CARE SYSTEM,
EAST ORANGE CAMPUS, East Orange, NJ,
Employer
__________________________________________

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

Docket No. 20-0962
Issued: April 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 30, 2020 appellant filed a timely appeal from November 22, 2019 and March 18,
2020 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 18, 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish the expansion
of the acceptance of his claim to include other intervertebral disc displacement of the lumbosacral
and lumbar regions, and disc herniation at L5-S1 as causally related to the accepted May 2, 2019
employment injury; and (2) whether appellant has met his burden of proof to establish a recurrence
of disability commencing December 18, 2019 causally related to his accepted May 2, 2019
employment injury.
FACTUAL HISTORY
On May 16, 2019 appellant, then a 59-year-old medical instrument technician, filed a
traumatic injury claim (Form CA-1) alleging that on May 2, 2019 his right foot slipped on a wet
floor, his legs split, and he fell injuring himself while in the performance of duty. He stopped work
on May 2, 2019 and returned to a full-time limited-duty position on May 10, 2019. OWCP paid
appellant compensation on the supplemental rolls from June 17 through July 19, 2019.
Appellant was treated in the emergency room by Dr. Rekha Agrawal, a Board-certified
internist, on May 2, 2019 for low back and buttocks pain, which began after he slipped on a wet
floor at work and his legs split causing him to fall. An x-ray of the lumbosacral spine revealed
mild levoscoliosis lumbar spine, no acute fracture or subluxation, progression of degenerative
changes at L4-5, and mild progression of facet joint osteoarthritis at L4-5 and L5-S1. Dr. Agrawal
diagnosed contusion of the lumbar spine.
On May 10, 2019 Dr. Bin Yang, Board-certified in occupational medicine, treated
appellant for severe low back pain after a slip and fall accident at work. He diagnosed sprain of
the lumbar spine and pelvis. In a work capacity evaluation dated May 10, 2019, Dr. Yang
diagnosed lumbar sacral sprain and returned appellant to work-limited duty.
Dr. Rex T. Ma, Board-certified in physical medicine and internal medicine, evaluated
appellant on May 13, 2019 for low back and gluteal pain after a fall at work on May 2, 2019. He
diagnosed acute muscle strain of the right low back and gluteal regions. Dr. Ma recommended a
trial of a transcutaneous electrical nerve stimulation (TENS) unit.
On June 19, 2019 Jack J. Daitol, a nurse practitioner, treated appellant in the emergency
room for low back pain. Appellant reported reinjuring his back the prior weekend when he was
lifting heavy luggage that belonged to his wife. Mr. Daitol diagnosed mechanical back pain.
Appellant was subsequently treated in the emergency on July 3, 2019 by Dr. Daiva Brazaitis, a
Board-certified internist, for low back pain radiating to his legs and coccyx bone. Dr. Brazaitis
diagnosed chronic low back pain and provided a medication refill.
Dr. Yang treated appellant in follow-up on July 12, 15, 19, and 25, 2019 for injuries
sustained in the May 2, 2019 slip and fall accident at work. Appellant reported continued lower
back pain radiating to the lower legs, coccyx pain, and the inability to stand or sit more than a few
minutes due to spasms. Dr. Yang diagnosed lumbar sprain, coccydynia, low back pain, and work
accident. He noted that appellant was disabled from work on July 15, 16, 19, and 25, 2019. In
work capacity evaluations dated July 12, 15, 17, and 25, 2019, Dr. Yang reported that appellant

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presented with severe tenderness over the lumbar back and sacroiliac joint region with weakness
in his legs. He diagnosed strain of lower back and other injury of muscles, fascia and tendons of
the lower back. Dr. Yang took appellant off work from July 15 through19, July 24 through 26,
and July 29 and 30, 2019. In a work capacity evaluations dated July 19 and 30, 2019, he noted
diagnoses and returned appellant to full-time modified duty. In a July 19, 2019 attending
physician’s report (Form CA-20), Dr. Yang recounted a history of a low back injury after a fall at
work on May 2, 2019. He diagnosed lumbar sprain, coccydynia, low back pain, and work
accident. Dr. Yang checked a box marked “Yes” indicating that the diagnosed conditions were
caused or aggravated by the described employment incident.
A magnetic resonance imaging (MRI) scan dated July 26, 2019 revealed no acute fracture
or misalignment and when compared to the previous MRI scan examination performed on July 27,
2010 there was no definite change in the size of the left paracentral disc herniation at L4-5, but at
the L5-S1 there was a new small right paracentral disc herniation with possible mass effect on the
right S1 nerve root.
In a report dated July 31, 2019, Dr. Yang reviewed the MRI scan results and diagnosed
other intervertebral disc displacement, lumbosacral region, strain of lower back, and sprain of
lumbar spine and pelvis. He continued modified duty.
On August 9, 2019 appellant was treated in follow up by Dr. Ma for low back and coccyx
pain. He reported that his back pain was unchanged and he still experienced spasms with activity.
Appellant reviewed the MRI scan and diagnosed lower back pain.
In reports dated August 21 and October 4, 2019, Dr. Yang noted that appellant experienced
persistent low back pain radiating into the right upper leg. He diagnosed intervertebral disc
displacement of the low back, strain of the lower back, and sprain of the lumbar spine and pelvis
and continued modified-duty work. Similarly, on September 19, 2019 appellant reported having
relief with an epidural steroid injection. Dr. Yang diagnosed other intervertebral disc
displacement, lumbosacral region, strain of the lower back, and sprain of the lumbar spine and
pelvis and continued modified duty. In work capacity evaluations dated August 21, September 6
and 19, and October 4 and 30, 2019, he noted diagnoses and resumed limited-duty work.
In an October 16, 2019 development letter, OWCP advised that, when appellant’s claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time for
work. Therefore, payment of a limited amount of medical expenses was administratively approved
without formal consideration of the merits of his claim. OWCP opened appellant’s claim for
consideration of the merits. It advised him of the deficiencies of his claim and requested additional
factual and medical evidence from him. OWCP afforded appellant 30 days to respond.
In reports dated October 28 and November 4, 2019, Dr. Yang provided a history of the
May 2, 2019 slip and fall injury at work and subsequent medical treatment. Appellant was initially
treated in the emergency department and was diagnosed with contusion of the lumbar spine and
sprain of the lumbar spine and pelvis. Dr. Yang reviewed the July 26, 2019 MRI scan of the
lumbar spine, which revealed a left paracentral disc herniation at L4-5 and a new small right
paracentral disc herniation at L5-S1 with possible mass effect on the right S1 nerve root. He
diagnosed other intervertebral disc displacement, lumbosacral region, other intervertebral disc

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displacement, lumbar region, strain of the muscle, fascia and tendon of lower back, and sprain of
unspecified parts of the lumbar spine and pelvis. Dr. Yang explained that appellant’s injury, by
suddenly being forced into leg splits, could cause an acute strain of the muscles and tendons in the
lumbosacral spines, tailbone (coccyx), pelvic floor, and an acute sprain of ligaments connecting to
the lumbosacral vertebrae and coccygeal vertebrae. He described that forcefully stretched
muscles, tendons, and ligaments result in forcibly shifting the spinal discs, causing intervertebral
disc displacement, pressure on the nerves, and severe back pain. Dr. Yang further noted that
sudden movement of one’s lower back or spine will cause tensions from the muscle imbalance in
the surrounding tissues of the lumbar spine resulting in a disc herniation at L5-S1. He opined that
appellant’s lower back pain, disc herniation at L5-S1, strain of lower back, sprain of the lumbar
spine and pelvis were caused by and connected with the injury event on May 2, 2019 at work.
On October 30, 2019 Dr. Yang diagnosed intervertebral disc displacement, lumbosacral
region, other intervertebral disc displacement lumbar region, strain of the back, sprain of the
lumbar spine and pelvis, and continued modified duty.
On November 21, 2019 OWCP accepted appellant’s claim for strain of the low back and
sprain of the lumbar spine and pelvis.
By decision dated November 22, 2019, OWCP denied appellant’s claim for other
intervertebral disc displacement, lumbar region, other intervertebral disc displacement
lumbosacral region, and disc herniation at L5-S1.
On December 19, 2019 appellant filed a notice of recurrence (Form CA-2a). He indicated
that the recurrence occurred on December 18, 2019 noting that he had continuous back pain.
Appellant stopped work on December 18, 2019. Appellant’s supervisor indicated on the claim
form that after the original injury appellant returned to work in a limited-duty capacity.
In a development letter dated January 13, 2020, OWCP advised appellant of the type of
evidence needed to establish his recurrence claim. It requested that he submit a detailed medical
report from his physician that clearly established how his claimed disability from work was
causally related to his accepted employment. OWCP provided appellant 30 days to submit the
necessary evidence.
OWCP received progress notes from Dr. Yang dated December 9, 2019, who treated
appellant for severe low back pain radiating into the buttocks. Appellant reported preparing
multiple trays for processing that exceeded his weight restriction. He stated that he was unable to
work on December 5, 2019 due to pain and experienced pain the whole weekend. Dr. Yang
diagnosed intervertebral disc displacement, lumbosacral low back sprain, low back strain, and
sprain of the lumbar spine and pelvis. He continued modified-duty work. On December 18, 2019
Dr. Yang treated appellant for severe pain, difficulty walking, stiffness in both lower extremities,
upper extremity shaking, and loss of balance.
Appellant was treated in the emergency department on December 18, 2019 by Dr. Adaeze
Iwu, Board-certified in emergency medicine, for radiating chronic low back pain and lower
extremity weakness. He reported a slip and fall accident at work in May 2019, which resulted in

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a disc herniation at L5. Dr. Iwu diagnosed lumbar radiculopathy. Appellant was discharged in
stable condition.
Appellant presented on December 19, 2019 in follow up for severe lumbar radiculopathy.
Dr. Yang noted that appellant was placed off duty until December 23, 2019. On December 23,
2019 he reevaluated appellant for severe low back and pelvic pain. Dr. Yang noted low back
tenderness radiating into the right buttock and antalgic gait. He diagnosed low back sprain, lumbar
spine and pelvis sprain and found appellant disabled from work on December 23, 26, and 27, 2019.
In a work capacity evaluation of even date, Dr. Yang diagnosed low back, lumbar, and pelvic
sprain. He again advised that appellant was totally disabled on December 23, 26, and 27, 2019.
Appellant presented on December 30, 2019 and complained of severe low back pain radiating into
both lower legs. He reported difficulty walking and standing and indicated that he was unable to
tolerate his modified-duty status. Findings on examination revealed an unsteady gait, appellant
was using a cane for ambulation, and tenderness over the lower back and right buttocks. Dr. Yang
diagnosed intervertebral disc displacement lumbosacral, low back sprain, and sprain of the lumbar
spine/pelvis. He found appellant disabled from work until January 6, 2020. In a work capacity
evaluation of even date, appellant presented with severe low back pain radiating to the lower legs.
Dr. Yang diagnosed low back strain/sprain, sprain of the lumbosacral spine and pelvis, and
intervertebral disc displacement. He noted that appellant was totally disabled from December 30,
2019 through January 5, 2020.
Dr. Yang treated appellant on January 6, 2020 and reported marked improvement in his
condition. He diagnosed low back strain, sprain of the lumbosacral spine and pelvis, and
intervertebral disc displacement and returned appellant to modified duty. In a work capacity
evaluation of even date, Dr. Yang provided work restrictions of no lifting, carrying, pulling or
pushing over 10 pounds, no bending, twisting, or stooping activities, and no prolonged standing
or walking more than 30 minutes per hour. He treated appellant on January 10, 2020 for continued
right leg numbness, weakness, tremors, and loss of motor movement over his legs. Dr. Yang
diagnosed intervertebral disc displacement lumbosacral region and lumbar region and
recommended an electromyography and nerve conduction velocity (EMG/NCV) study.
In another development letter dated February 12, 2020, OWCP advised appellant of the
type of evidence needed to establish his recurrence claim. It requested that he submit a detailed
medical report from his physician that clearly established how his claimed disability from work
was causally related to his accepted employment injury. OWCP provided appellant 30 days to
submit the necessary evidence.
OWCP subsequently received August 16 and September 3, 2019 reports from
Dr. Benjamin D. Levy, a Board-certified physiatrist, who diagnosed coccydynia and performed a
coccyx steroid injection and ganglion block under fluoroscopic guidance. Dr. Levy evaluated
appellant on January 27 and February 13, 2010 and excused him from work.
A January 17, 2020 EMG/NCV study revealed no electrodiagnostic evidence of right-sided
lumbosacral radiculopathy or large fiber peripheral polyneuropathy affecting the lower limbs.
In a progress note dated January 17, 2020, Dr. Yang reevaluated appellant who reported
increased pain effecting his ability to sleep. He made diagnoses and took appellant off duty. In a

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work capacity evaluation dated January 17, 2020, Dr. Yang diagnosed low back strain and sprain
of the lumbosacral spine and pelvis and noted that appellant was off duty. On January 29 and
February 7, 2020 he treated appellant for complaints of severe back pain radiating down both lower
legs with weakness and numbness over the right leg. Dr. Yang diagnosed intervertebral disc
disorder with radiculopathy and strain of the lower back. He advised that appellant was disabled
from January 30 through February 2, 2020 and February 3 through 7, 2020. In work capacity
evaluations of even dates, Dr. Yang noted tenderness over the bilateral paraspinal lumbar back
radiating down the lower legs with weakness and advised that appellant was disabled from work
from January 30 through February 20, 2020 and February 3 through 7, 2020. He reevaluated
appellant on February 13 and March 3, 2020, and again advised that appellant was unable to work
until March 3, 2020, due to severe pain. On March 3, 2020 appellant underwent a ganglion block
and steroid injection.
By decision dated March 18, 2020, OWCP denied appellant’s recurrence claim, finding
that he had not established that he was disabled from work due to a material change or worsening
of his accepted lumbar and pelvic conditions.
LEGAL PRECEDENT -- ISSUE 1
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 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
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.7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred.8 The second component is whether the employment incident
caused a personal injury.9 An employee may establish that an injury occurred in the performance
3

Supra note 2.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); 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

K.M., Docket No. 15-1660 (issued September 16, 2016).

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

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of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the employment incident.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.12 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 the
specific employment incident.13
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In his reports dated October 28 and November 4, 2019, Dr. Yang noted that on May 2,
2019 appellant sustained a low back injury at work when he slipped and fell on a wet floor. He
diagnosed other intervertebral disc displacement, lumbosacral region, other intervertebral disc
displacement, lumbar region, strain of the muscle, fascia, and tendon of lower back, and sprain of
unspecified parts of the lumbar spine and pelvis following a work accident. Dr. Yang explained
that appellant’s injury by suddenly having his legs forced into the splits could cause an acute strain
of the muscles and tendons in the lumbosacral spine, tailbone (coccyx), pelvic floor and cause an
acute sprain of ligaments connecting to the lumbosacral vertebrae and coccygeal vertebrae. He
further described that the work event resulted in forcefully stretched muscles, tendons, and
ligaments, shifting the spinal discs, causing intervertebral disc displacement, pressure on the
nerves, and severe back pain. Dr. Yang explained that sudden movement of one’s lower back or
spine will cause tensions from the muscle imbalance in the surrounding tissues of the lumbar spine
resulting in a disc herniation at L5-S1. He referenced appellant’s lumbar spine MRI scan, which
revealed a new disc herniation at L5-S1 level. In conclusion, Dr. Yang noted that appellant’s lower
back pain, disc herniation at L5-S1, strain of lower back, sprain of the lumbar spine and pelvis
were causally related to the accepted May 2, 2019 injury at work.
The Board finds that the reports from Dr. Yang are sufficient to require further
development of the medical evidence. Dr. Yang provided a comprehensive understanding of the
medical record and case history. His report provides a pathophysiological explanation as to how
appellant’s slip and fall on May 2, 2019 resulted in his diagnosed herniated disc at L5-S1,
intervertebral disc displacement of the lumbosacral and lumbar regions, strain of the muscle,
fascia, and tendon of lower back, sprain of unspecified parts of the lumbar spine, and pelvis
intervertebral disc displacement. The Board has long held that it is unnecessary that the evidence
of record in a case be so conclusive as to suggest causal connection beyond all possible doubt.
10

Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

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

12

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

13

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

7

Rather, the evidence required is only that necessary to convince the adjudicator that the conclusion
drawn is rational, sound, and logical.14 Accordingly, Dr. Yang’s medical opinion is rationalized
and logical and is therefore sufficient to require further development of the expansion of the
acceptance of appellant’s claim.15
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to an appropriate specialist. The chosen physician shall provide a rationalized opinion as
to whether the additional diagnosed conditions are causally related to the accepted May 20, 2019
employment injury. If the physician opines that the additional diagnosed conditions are not
causally related to the accepted May 20, 2019 employment injury, he or she must explain, with
rationale, how or why the opinion differs from that of Dr. Yang. Following this and such other
further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s
expansion claim.
LEGAL PRECEDENT -- I SSUE 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.18 The term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and, which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.19
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
14

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
15
See J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
16
See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
17

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).
18

20 C.F.R. § 10.5(x); see J.K., Docket No. 18-0854 (issued June 5, 2020).

19

Id.

8

evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.20 Where no such rationale is present,
the medical evidence is of diminished probative value.21
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.22
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing December 18, 2019, causally related to his accepted May 2, 2019
employment injury.
Appellant stopped work on December 18, 2019 and filed a claim for recurrence of
disability commencing December 18, 2019. He has not alleged a change in his light-duty job
requirements. Instead, appellant attributed his inability to work to a change in the nature and extent
of his accepted strain of the lower back and sprain of the lumbar spine and pelvis. He therefore
has the burden of proof to provide medical evidence to establish that he was disabled from work
due to a worsening of his accepted work-related conditions.23
In support of his recurrence claim, appellant submitted progress notes from Dr. Yang from
December 18 through 23, 2019, who noted that appellant was placed off duty until
December 23, 2019. In work capacity evaluations dated December 23 and 30, 2019, Dr. Yang
noted that appellant was disabled on December 23, 26, and 27, 2019. Similarly, on December 30,
2019 he determined that appellant was totally disabled from December 30, 2019 through
January 5, 2020. While he provided an opinion regarding disability, Dr. Yang did insufficiently
explain how appellant became totally disabled on or after December 18, 2019, such that appellant
was unable to perform his full-time modified duties due to a worsening of his accepted lumbar and
pelvis conditions or specifically explain whether he sustained a recurrence of disability.24 A
20

K.E., Docket No. 19-1922 (issued July 10, 2020); J.D., Docket No. 18-0616 (issued January 11, 2019).

21

Id.

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); N.L., Docket
No. 19-1456 (issued July 14, 2020).
23

D.H., Docket No. 18-0129 (issued July 23, 2018); D.L., Docket No. 13-1653 (issued November 22, 2013);
Cecelia M. Corley, 56 ECAB 662 (2005).
24

See J.P., Docket No. 18-1396 (issued January 23, 2020).

9

cursory opinion without explanation is of limited probative value.25 Without such an explanation,
these reports are insufficient to establish a recurrence of disability, as alleged.
In reports dated January 6 through February 7, 2020, Dr. Yang advised that appellant was
disabled from January 30 through February 2, 2020 and February 3 through 7, 2020. Similarly, in
work capacity evaluations dated January 17 through 29, 2020, he diagnosed low back strain and
sprain of the lumbosacral spine and pelvis and noted appellant was off duty. Other notes dated
February 13 and March 3, 2020, indicated that appellant was unable to work due to severe pain
and was placed off duty until March 3, 2020. The Board finds that Dr. Yang did not provide
sufficient medical reasoning explaining how the accepted employment injuries caused appellant’s
disability commencing December 18, 2019. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how the claimed disability was causally related to an employment injury.26 For these reasons, the
Board finds that Dr. Yang’s work capacity evaluations and reports are insufficient to establish
appellant’s recurrence claim.27
Appellant submitted reports from Dr. Yang dated October 30 through December 9, 2019,
who diagnosed intervertebral disc displacement, lumbosacral region and lumbar region, strain of
lower back, and sprain of the lumbar spine and pelvis. Similarly, reports from Dr. Levy dated
August 6 and September 3, 2019 diagnosed coccydynia. Drs. Yang and Levy reports lack
probative value as they predate the claimed period of disability commencing December 18, 2019.28
As such, they are insufficient to establish appellant’s claim.
Appellant was treated in the emergency room on December 18, 2019 by Dr. Iwu for
radiating chronic low back pain and lower extremity weakness, diagnosing lumbar radiculopathy.
He reported a slip and fall accident at work in May 2019, which resulted in a disc herniation at L5.
Similarly, Dr. Levy treated appellant on January 27, 2020 and placed appellant off work for that
day. In these reports, Drs. Iwu and Levy failed to address appellant’s disability status beginning
December 18, 2019, and thus this evidence is insufficient to meet appellant’s burden of proof.29
The record also contains a report of an EMG/NCV study, dated January 17, 2020.
However, the Board has held that diagnostic studies, standing alone, lack probative value on the
issue of causal relationship as they do not address whether the accepted employment injuries
resulted in appellant’s period of disability on specific dates.30

25

See L.B., Docket No. 07-1861 (issued December 13, 2007).

26

See S.D., Docket No, 19-1245 (issued January 3, 2020); A.P., Docket No. 19-0446 (issued July 10, 2019); G.G.,
Docket No. 18-1788 (issued March 26, 2019); E.W., Docket No. 17-1988 (issued January 29, 2019).
27

S.D., id.; A.P., id.; G.G., id.; K.G., Docket No. 15-0669 (issued April 8, 2016).

28

W.C., Docket No. 19-1740 (issued June 4, 2020).

29

J.S., Docket No. 17-1121 (issued April 17, 2019); K.M., Docket No. 17-1730 (issued February 9, 2018).

30

R.J., Docket No. 19-0179 (issued May 26, 2020).

10

As appellant has not submitted rationalized medical evidence establishing causal
relationship between his accepted May 20, 2019 employment injury and the claimed recurrence of
disability, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that this case is not in posture for decision with regard to whether the
acceptance of the claim should be expanded to include the additional conditions of other
intervertebral disc displacement, lumbosacral and lumbar regions, and disc herniation at L5-S1
causally related to the May 2, 2019 employment injury. The Board further finds that he has not
met his burden of proof to establish a recurrence of disability for the period commencing
December 18, 2019 causally related to his accepted May 2, 2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board. The March 18, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 13, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, PADDOCK BRANCH
POST OFFICE, Ocala, FL, Employer
__________________________________________

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

Docket No. 11-18
Issued: August 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 4, 2010 appellant, through counsel, filed a timely appeal from the July 22,
2010 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) denying
appellant’s claim for an employment-related injury. The appeal is also timely filed from the
September 15, 2010 nonmerit decision of OWCP denying appellant’s request for
reconsideration. Pursuant to the Federal Employee’s Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she sustained an injury in the
performance of duty on October 19, 2009, as alleged; and (2) whether OWCP properly denied
her request for reconsideration of the merits of the claim under 5 U.S.C. § 8128(a).
On appeal, appellant, through counsel, contends that OWCP’s decision is contrary to fact
and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 19, 2009 appellant, then a 34-year-old rural carrier, filed a traumatic injury
claim alleging that on that date, when pulling mail down from a flat case, she pulled something
in her neck. With her claim, she submitted discharge instructions listing basic instructions for
treating sprains and strains from an October 19, 2009 visit with a physician’s assistant at Express
Care as well as a note from the same physician’s assistant asking that appellant be excused from
work from October 19 through 22, 2009 due to a medical condition. The employing
establishment controverted appellant’s claim, alleging that medical evidence submitted did not
provide a diagnosis or condition which could be linked to the claimed events.
By letter dated October 26, 2009, OWCP informed appellant that medical evidence of
record was not sufficient to establish that she had a condition related to the October 19, 2009
incident of pulling down mail. Appellant was instructed to submit medical evidence in support
of her claim.
In response, appellant submitted an October 22, 2009 health status report by Dr. Frank
Reisner, a physician with a Board-certified specialty in emergency medicine, indicating that she
was able to return to work but that until October 29, 2009 she had restrictions of no pushing,
pulling and lifting.
A form report dated October 23, 2009, by an individual with an illegible signature at
Express Care noted that appellant had cervical and shoulder pain. The individual checked a box
indicating that the condition was caused or aggravated by appellant’s employment. Appellant
also submitted an October 29, 2009 note by Laurel Bryant indicating that appellant was able to
return to work with restrictions of no use of the right upper extremity and no pushing, pulling or
lifting over 10 pounds. Ms. Bryant noted that these restrictions were in effect until
November 9, 2009.
Appellant also submitted further reports by Dr. Reisner. In an October 23, 2009 report,
Dr. Reisner listed his impression as shoulder pain and cervical pain and stated that the onset date
was the same as the date of the report. He noted that appellant was reaching up with right arm to
pull case down and felt a pull in her right arm. In an October 22, 2009 report, Dr. Reisner listed
his diagnoses as pain in joint involving shoulder region and cervicalgia. In an October 29, 2009
report, he listed his impression as “Unspecified. Cervicalgia. Low Back Pain.”
Appellant also submitted notes from physical therapy.
By decision dated December 2, 2009, OWCP denied appellant’s claim as it determined
that she had not established fact of injury.
On December 10, 2009 appellant requested review of the written record.
Appellant continued to submit reports by Dr. Reisner. In a November 5, 2009 report,
Dr. Reisner noted onset two to three weeks ago and stated that her condition occurred as a result
of her work injury. He listed his impression as insomnia, anxiety state, unspecified; cervicalgia
and low back pain. In a December 7, 2009 report, Dr. Reisner diagnosed lumbago, pain in joint
involving shoulder region and cervicalgia. He noted that onset was six weeks ago and occurred
2

as a result of a pulling injury. Appellant also submitted more physical therapy reports. In a
December 28, 2009 report, Dr. Reisner continued to diagnose her with cervicalgia and lumbago.
In a January 11, 2010 report, he noted cervicalgia and shoulder pain.
On January 4, 2010 appellant had a magnetic resonance imaging (MRI) scan of her
cervical spine. Dr. Jonathan C. Eugenio, a Board-certified radiologist, interpreted the MRI scan
as evincing: (1) disc bulge at the level of C4-5 with a left paramedian disc herniation with
anterior impression on the spinal cord; (2) disc bulge at the level of C5-6 with a posterior disc
herniation with anterior impression on the spinal cord; and (3) disc bulge at the level of C6-7
with a posterior disc herniation which abuts the spinal cord. An MRI scan of the right shoulder
of the same date was interpreted by Dr. Eugenio as evincing: (1) supraspinatus tendinopathy
involving the distal aspect of the tendon; (2) small joint effusion; and (3) no evidence of a rotator
cuff tear.
By decision dated February 19, 2010, OWCP’s hearing representative affirmed the denial
of appellant’s claim. OWCP’s hearing representative noted that appellant had not submitted
medical evidence that clearly stated a diagnosis and related it to the specific incident claimed.
Appellant requested reconsideration in a February 9, 2010 report, Dr. Reisner listed his
impression as cervicalgia, who noted that this condition has existed for an extended amount of
time and was the result of a work injury. In a May 19, 2010 report, Dr. Reisner listed his
impression as lumbago, pain in joint involving shoulder region and cervicalgia. He listed onset
as unknown but again indicated that it was the result of a work injury.
By decision dated July 22, 2010, OWCP denied modification of its prior decision.
On August 13, 2010 appellant requested reconsideration.
By decision dated September 15, 2010, OWCP denied reconsideration without merit
review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA2 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA4 and that she filed her claim
within the applicable time limitation.5 The employee must also establish that she sustained an

2

5 U.S.C. §§ 8101-8193.

3

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

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

3

injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
In order to satisfy the burden of proof, an employee must submit a physician’s
rationalized medical opinion on the issue of whether the alleged injury was caused by the
employment incident.9 Neither the fact that the condition became apparent during a period of
employment nor appellant’s belief that the employment caused or aggravated her condition is
sufficient to establish causal relationship.10
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an injury on October 19, 2009 while pulling down
mail. The Board notes that there is no dispute that this incident occurred as alleged. OWCP
denied the claim, however, as appellant failed to submit sufficient medical evidence to establish
a diagnosis or the causal relationship between any diagnosis and the accepted incident.
The Board finds that the medical evidence does not establish that appellant sustained a
diagnosed condition that was casually related to the accepted employment incident. Rationalized
medical evidence under FECA generally consists of an opinion from a physician that is of
reasonable medical certainty, is based on a complete actual and medical background and explains
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.11 The October 23, 2009 report contained an illegible signature. The report by
Laurel Bryant does not indicate if she is a physician as defined under FECA. These reports do
not constitute probative medical evidence under FECA, as neither report was signed by an
identifiable physician.12 Section 8101(2) of FECA provides that a physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic

6

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

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

9

Gary L. Fowler, 45 ECAB 365 (1994).

10

Phillip L. Barnes, 55 ECAB 426 (2004); Jamel A. White, 54 ECAB 224 (2002).

11

M.T., Docket No. 07-2215 (issued February 25, 2008).

12

Roy L. Humphrey, 57 ECAB 238, 242 (2005).

4

practitioners within the scope of their practice as defined by State law.13 The Board has held that
the reports of therapists and physician’s assistants have no probative value on medical questions
because therapists are not competent to render medical opinions under FECA.14 Accordingly,
the reports of the physical therapists and physician’s assistants do not constitute medical
evidence under FECA. The reports by Dr. Eugenio concerning the diagnostic tests are not
sufficient to establish appellant’s claim as they do not address the issue of causal relationship.15
The medical reports from Dr. Reisner indicate that appellant had cervical pain (or
cervicalgia) as well as pain in the joint involving the shoulder region and low back pain
(lumbago). The Board has generally held that a diagnosis of pain is not a firm medical
diagnosis. Absent more in the way of medical rationale, does not constitute a basis for the
payment of compensation.16 Although Dr. Reisner noted that appellant had insomnia and
anxiety, he did not address how this was related to the accepted employment incident. A general
statement that appellant’s condition was related to the employment incident is not sufficient; a
rationalized medical opinion explaining causal relationship is necessary.
The Board finds that appellant failed to establish that the October 19, 2009 employment
incident caused an injury, she has not met her burden of proof. An award of compensation may
not be based on surmise, conjecture or speculation. Neither the fact that appellant’s condition
became apparent during a period of employment nor the belief that the condition was caused,
precipitated or aggravated by her employment is sufficient to establish causal relationship.17
Causal relationship must be established by rationalized medical opinion evidence and appellant
failed to submit such evidence.
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
To require OWCP to reopen a case for merit review under section 8128(a) of
FECA,18 its regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.19 To be entitled to a merit review
13

5 U.S.C. § 8101(2).

14

Id.;J.B., Docket No. 10-1994 (issued May 5, 2011); D.P., Docket No. 10-1678 (issued April 4, 2011).

15

J.C., Docket No. 10-1491 (issued March 23, 2011).

16

Robert Broome, 55 ECAB 339 (2004).

17

Y.M., Docket No. 10-1617 (issued May 9, 2011).

18

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
19

20 C.F.R. § 10.606(b)(2).

5

of OWCP’s decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.20 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.21
ANALYSIS -- ISSUE 2
In her request for reconsideration of OWCP’s July 22, 2010 merit decision, appellant did
not argue that OWCP erroneously applied or interpreted a specific point of law or advance a
relevant legal argument not considered by OWCP. She did not submit any pertinent new and
relevant medical evidence. Accordingly, the Board finds that OWCP properly determined that
appellant was not entitled to a review of the merits of her claim pursuant to any of the three
requirements under section 10.606(b)(2) and properly denied her request for reconsideration.22
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on October 19, 2009, as alleged. The Board further finds that OWCP
properly denied appellant’s request for reconsideration without merit review of the claim under 5
U.S.C. § 8128(a).

20

Id. at § 10.607(a).

21

Id. at § 10.608(b).

22

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 15 and July 22, 2010 are affirmed.
Issued: August 12, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
DEPARTMENT OF TRANSPORTATION,
U.S. MERCHANT MARINE ACADEMY,
Kings Point, NY, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1461
Issued: July 2, 2019

Case Submitted on the Record

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

JURISDICTION
On July 23, 2018 appellant, through counsel, filed a timely appeal from a July 5, 2018 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.3

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.

3
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 additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish lumbar conditions
causally related to the accepted November 16, 2015 employment incident.
FACTUAL HISTORY
On November 16, 2015 appellant, then a 58-year-old mason, filed a traumatic injury claim
(Form CA-1) alleging that on that date he sustained an injury to his lower back and right leg when
lifting and removing scaffolding while in the performance of duty. He stopped work that same
day. On the reverse side of the claim form appellant’s supervisor checked a box marked “yes”
indicating that appellant was injured in performance of duty.
In a November 11, 2015 report, Dr. Hervey Sicherman, a Board-certified orthopedic
surgeon, noted that appellant was seen two weeks prior with a history of lower back pain and pain
radiating in the right sciatic distribution. He indicated that he had advised appellant not to work
as a mason; however, appellant returned to work on a modified-duty schedule. Dr. Sicherman
ordered a magnetic resonance imaging (MRI) scan. He diagnosed lumbago with sciatica and other
intervertebral disc degeneration.
In a November 16, 2015 report, Dr. Sicherman advised that appellant had persistent lower
back pain with right sciatica. He noted that appellant had lifted something at work that day and
had a marked increase in lower back pain, especially distal right lower extremity pain with lateral
distal calf and ankle pain. Dr. Sicherman diagnosed low back pain, lumbago with sciatica, on the
right side, and other intervertebral disc degeneration, lumbosacral region. He provided a work
excuse, also dated November 16, 2015, with an estimated return to work date of
November 24, 2015.
A November 19, 2015 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
read by Dr. Daniel Levy, a Board-certified diagnostic radiologist, revealed L5-S1 disc protrusion
on the left and mild facet arthropathy in the lower lumbosacral spine.
In a November 23, 2015 report, Dr. Sicherman noted that, when appellant returned to work,
he had a marked increase of pain. He indicated that he advised appellant not to work as a mason.
Dr. Sicherman examined appellant and diagnosed low back pain, lumbago with sciatica on the
right side, and other intervertebral disc degeneration.
In the attending physician’s report portion (Part B) of a November 23, 2015 authorization
for evaluation and/or treatment (Form CA-16), Dr. Sicherman indicated that appellant had injured
his lower back and right leg, as he had pulled a muscle which caused sciatica. He again noted that
appellant had increased back pain after lifting something at work. Dr. Sicherman marked the box
“yes” in response to whether appellant had any history or evidence of a concurrent or preexisting
injury and noted: “sciatic pain in the past.” He also marked the box “yes” in response to whether
he believed the condition found was caused or aggravated by the employment activity described.
Dr. Sicherman indicated that appellant was totally disabled from work for the period November 23
to December 22, 2015.
Dr. Sicherman provided a December 21, 2015 work excuse note, placing appellant off
work for two weeks. In a December 21, 2015 report, he reiterated that appellant had been doing
2

well until a couple of days prior when he developed right lower back and buttock pain with
radiation to the right anterior thigh. Dr. Sicherman also noted pain in the left lower back and
posterior thigh. He explained that he was treating appellant for lower back pain with right sciatica.
Dr. Sicherman noted the findings from appellant’s MRI scan and recommended physical therapy.
He diagnosed other intervertebral disc displacement, lumbosacral, low back pain, lumbago with
sciatica on the right side, and other intervertebral disc degeneration, lumbosacral region.
Dr. Sicherman continued to hold appellant off work.
In a report dated December 28, 2015, Dr. Richard S. Rosenberg, a Board-certified internist
and neurologist, noted appellant’s history of lower back pain “at least since early October for which
he sought some treatment.” He explained that on November 16, 2015 appellant was at work
moving scaffolding. Dr. Rosenberg had a sudden onset of severe pain in the lower back which
began to radiate down the anterior aspect of the right thigh and down the anteromedial aspect of
the right calf to the foot. He advised that appellant’s November 18, 2015 lumbar MRI scan
revealed minimal disc bulging at L4-5 and a small broad disc protrusion extending into the left
neural foramen at L5-S1.
Dr. Rosenberg also noted that a few weeks prior, appellant had an episode of twitching of
the muscles of the right thigh and then generalized pain in both legs lasting for one to two days
without any speciﬁc provocation. He noted that appellant indicated the pain in the left leg subsided
after a day or two and was only occasional since then, and not severe. Dr. Rosenberg indicated
that most of the pain remained in the lower back, buttock, anterior right thigh and anterior right
shin. He explained that appellant had right sciatica and lower back pain for which there was no
corresponding disc herniation shown on the recent MRI scan of the lumbar spine. Dr. Rosenberg
also noted that appellant had occasional spasms in the left leg, but no definite sciatica to correspond
with the small left-sided L5-S1 disc herniation.
In a January 5, 2016 report, Dr. Sicherman repeated his diagnoses. He also provided a
January 5, 2016 work excuse note advising that appellant could perform light-duty work for one
week. Dr. Sicherman saw appellant on February 4, 2016 and noted that appellant was doing well
without any symptoms. He also noted that appellant had been working for the past month without
any discomfort. Regarding his lumbago and sciatica on the right side, Dr. Sicherman explained
that there was a lack of correlation between the MRI scan findings and appellant’s symptoms and
a neurological evaluation was warranted. He also noted that appellant may have future problems
with intervertebral disc degeneration.
In a development letter dated August 5, 2016, OWCP advised appellant that when his claim
was first opened it appeared to be a minor injury that resulted in minimal or no lost time from work
and the employing establishment did not controvert the claim. However, the claim was reopened
because the medical bills exceeded $1,500.00. OWCP informed appellant of the type of factual
and medical evidence needed to support his claim and afforded him 30 days to submit the necessary
evidence.
In an August 29, 2016 report, Dr. Sicherman noted that appellant was last seen in
February 2016. He related that appellant continued to work with good days and bad days.
Dr. Sicherman advised that heavy work caused appellant to have lower back pain, but he continued
to work.

3

In an August 29, 2016 response to the development questionnaire, appellant explained that
he previously thought he had pulled a muscle prior to the claimed employment incident. He noted
that he sought treatment and felt well enough to return to work. Appellant explained that he noted
pain and a pull in his back on November 16, 2015. In a September 2, 2016 statement, he alleged
that his physician believed that the November 16, 2015 employment incident permanently
aggravated his lumbar condition.
In a report dated September 27, 2016, Dr. Sicherman advised that he initially believed that
appellant’s pain was secondary to his degenerative lumbar disc disease. He noted that the incident
at work caused appellant’s symptoms to “markedly increase” and explained that an MRI scan of
appellant’s lumbar spine was consistent with a disc herniation and degenerative changes.
Dr. Sicherman explained that appellant’s symptoms subsided and he had returned to work. Since
that time, appellant had persistent symptoms in the lower back and right lower extremity, which
were secondary to a bulging hesitated disc. He opined that the “disc condition is causally related
to the incident at work and aggravated previously asymptomatic degenerative lumbar disc
disease.” Dr. Sicherman explained the need for epidural lumbar injections due to the herniated
disc and bulging disc which were “directly related to the incident at work.”
By decision dated October 18, 2016, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that the medical conditions of other
intervertebral disc displacement of the lumbosacral region, other intervertebral disc degeneration
of the lumbosacral region, sciatica of the right side, and disc herniation were caused or aggravated
by the accepted November 16, 2015 employment incident.
By letter postmarked on October 26, 2016, appellant, through counsel, requested a hearing
before a representative of OWCP’s Branch of Hearings and Review. The hearing was held on
May 10, 2017.
OWCP subsequently received a May 25, 2017 report, wherein Dr. Sicherman noted that
appellant initially presented to him with lower back pain and pain down the right lower extremity.
He explained that there was a subsequent aggravation at work and his symptoms persisted.
Dr. Sicherman indicated that appellant initially responded to treatment and returned to work with
occasional pain, but later in 2016 he had marked increase in symptoms that did not respond to
appropriate epidural injections. He opined that “this was an injury and/or condition that was
aggravated by his work. It accelerated and aggravated the preexisting condition. The permanence
is related to the work.” Dr. Sicherman related that he understood that appellant had recently
undergone lumbar fusion and instrumentation, which “was a direct result of the aggravation at
work.” He opined that appellant was not able to continue working as a mason because of the
stressful physical requirements.
By decision dated July 24, 2017, OWCP’s hearing representative affirmed the October 18,
2016 decision.
On September 12, 2017 counsel provided OWCP with a copy of the November 19, 2015
MRI scan.
On April 11, 2018 appellant, through counsel, requested reconsideration and submitted an
undated report from Dr. Steven Ferrer, a pain medicine specialist.

4

Dr. Ferrer noted that appellant had been under his care since September 26, 2016. He noted
appellant’s history of injury and treatment, and indicated that appellant’s symptoms began in late
2015. Dr. Ferrer noted that, at that time, appellant began experiencing low back pain radiating
down the right lower extremity after an employment incident that occurred while removing
scaffolding. He related that, over the next few months, appellant’s “symptoms remitted
significantly with physical therapy and rest.”
Dr. Ferrer noted that appellant sustained a new low back injury while at work on
September 8, 2016, while removing 20-pound plaques off of a wall. He advised that an MRI scan
from September 17, 2016 was reportedly stable compared to his prior MRI scan from
November 18, 2015. Dr. Ferrer also noted that, following additional treatment, appellant returned
to work. He noted that conservative treatment was not ameliorating the conditions and as a result
appellant underwent lumbar surgery. Dr. Ferrer diagnosed lumbar radiculopathy and low back
pain. He opined that appellant was disabled from work and that his condition was permanent.
Dr. Ferrer indicated that he had reviewed appellant’s job responsibilities, and opined that
“it is likely that these duties precipitated his lumbar spinal injuries that prompted the need for
medical and surgical treatments.” He referred to several medical studies and journals regarding
the effects of lumbar fusions and changes to the lumbar spine. Dr. Ferrer opined that appellant
was no longer able to continue in his occupation as a mason due to numerous biomechanical factors
that would lead to further damage to his lumbar spine. He indicated that there was a likelihood
that appellant would have “frequent sudden exacerbations” given his job duties.
By decision dated July 5, 2018, OWCP denied modification of the prior decision, finding
that the medical evidence of record did not provide a rationalized opinion regarding how the
November 16, 2015 employment incident caused or aggravated the diagnosed lumbar spine
conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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,5 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 or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
4

5 U.S.C. § 8101 et seq.

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

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

D.B., Docket No. 18-1359 (issued May 14, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

5

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.8 The second component is whether the employment incident caused a personal
injury.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has not established lumbar conditions causally related to the
accepted November 16, 2015 employment incident.
Dr. Sicherman provided work excuses through January 5, 2016. However, these work
excuses do not constitute probative medical evidence because they do not provide a diagnosis and
do not offer an explanation as to the cause of appellant’s injury.12 In his reports dated
November 11, 16, 23, and December 21, 2015, January 5 and August 29, 2016, Dr. Sicherman
provided diagnoses which included low back pain, lumbago with sciatica, and other intervertebral
disc degeneration, lumbosacral region. However, he offered no 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.13
In a November 23, 2015 Form CA-16, Dr. Sicherman checked the box marked “yes” in
response to whether appellant had a concurrent or preexisting injury and noted “sciatic pain in the
past.” He also checked the box marked “yes” in response to whether he believed the incident was
the cause of the injury. However, the checking of a box “yes” in a form report, without additional
explanation or rationale, is not sufficient to establish causal relationship.14
Dr. Sicherman’s February 4, 2016 treatment note was also of limited probative value as he
noted that appellant may have future problems with his intervertebral disc degeneration. However,
the Board has held that a fear of future injury is not compensable under FECA.15

8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

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

12

Id.; see also Ceferino L. Gonzales, 32 ECAB 1591 (1981).

13

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

14

Calvin E. King, 51 ECAB 394 (2000); Linda Thompson, 51 ECAB 694 (2000).

15

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

6

In a report dated September 27, 2016, Dr. Sicherman opined that appellant’s “disc
condition is causally related to the incident at work and aggravated previously asymptomatic
degenerative lumbar disc disease.” He explained the need for epidural lumbar injections was due
to the herniated disc and bulging disc which were “directly related to the incident at work.”
However, Dr. Sicherman did not explain how he arrived at his conclusion. The Board has held
that a report is of limited probative value regarding causal relationship if it does not contain
medical rationale explaining how a given medical condition is causally related to an employment
incident.16
In a May 25, 2017 report, Dr. Sicherman opined that “this was an injury and/or condition
that was aggravated by his work. It accelerated and aggravated the preexisting condition. The
permanence is related to the work.” Dr. Sicherman indicated that appellant had undergone lumbar
fusion, which was a direct result of the aggravation at work.” However, his report again did not
contain medical rationale explaining how appellant’s medical conditions were causally related to
the employment incident.17 Medical rationale is especially important in a case such as this wherein
Dr. Sicherman had previously reported prior to the November 16, 2015 employment incident that
appellant had a history of low back pain and right side distribution sciatica. The Board has
explained that if 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.18 Dr. Sicherman’s reports are,
therefore, of limited probative value.
Dr. Rosenberg, in a report dated December 28, 2015, noted that appellant had occasional
spasms in the left leg, but no definite sciatica to correspond with the small left-sided L5-S1 disc
herniation. The Board notes that Dr. Rosenberg offered no opinion on causal relationship. As
previously noted, this is especially important as appellant has preexisting back conditions.19
Dr. Rosenberg’s report was, therefore, of no probative value regarding the issue of causal
relationship.20
OWCP also received reports from Dr. Ferrer who diagnosed lumbar radiculopathy and low
back pain. After reviewing appellant’s employment duties, Dr. Ferrer provided only a speculative
opinion when he advised that it was “likely that these duties precipitated his lumbar spinal
injuries….” The Board has held that speculative and equivocal medical opinions regarding causal

16

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).
17

Id.

18
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
19

Id.

20

See supra note 13.

7

relationship have no probative value.21 Dr. Ferrer also referenced several medical studies and
journals regarding effects of lumbar fusions and changes to the lumbar spine. The Board has held
that newspaper clippings, medical texts, and excerpts from publications are of no evidentiary value
in establishing a causal relationship between a claimed condition and factors of the employee’s
federal employment, as such materials are of general application and are not determinative of
whether the specific condition claimed is related to the particular employment factors alleged by
the employee.22 Dr. Ferrer’s report failed to provide a well-rationalized explanation as to how and
whether the diagnosed conditions are causally related to the November 16, 2015 employment
incident.
A November 19, 2015 MRI scan of appellant’s lumbar spine was also received. 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.23
The Board therefore finds that there is no medical evidence of record which contains a
reasoned explanation of how the November 16, 2015 employment incident caused or aggravated
appellant’s diagnosed conditions. Thus, appellant has not met his burden of proof.24
On appeal counsel contends that the report of Dr. Ferrer was sufficient to establish that
appellant sustained a work-related back injury. However, as explained above, the report of
Dr. Ferrer was insufficiently rationalized and the Board finds that appellant has not met his burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish lumbar
conditions causally related to the accepted November 16, 2015 employment incident.

21

D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a
physician supporting causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of medical certainty).
22

See D.E., Docket No. 07-0027 (issued April 6, 2007).

23

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

24

The employing establishment issued a Form CA-16 to Dr. Sicherman on November 15, 2015. A properly
completed CA-16 form authorization may constitute a contract for payment of medical expenses to a medical facility
or physician, when properly executed. The form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. The period
for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated
earlier by OWCP. See 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M., Docket
No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

8

ORDER
IT IS HEREBY ORDERED THAT the July 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 2, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Salem, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0076
Issued: February 17, 2022

Case Submitted on the Record

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

JURISDICTION
On October 23, 2020 appellant, through counsel, filed a timely appeal from a
September 15, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2

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

The Board notes that, following the September 15, 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.

Pursuant to the Federal Employees’ Compensation Act3 (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 disability from work
for the period July 10, 2018 through May 30, 2019 causally related to the accepted factors of his
federal employment.
FACTUAL HISTORY
On July 5, 2018 appellant, then a 61-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he sustained a torn meniscus in his right knee due to factors of
his federal employment, including prolonged walking of more than 12 miles per day. He noted
that he had undergone several arthroscopic procedures on his right knee in the past, with the most
recent one being in 2014, and that he began experiencing pain in his right knee during the summer
of 2017.4 Appellant noted that he first became aware of his condition on June 15, 2017 and realized
its relation to his federal employment in August 2017. He stopped work on April 16, 2018. On
April 29, 2019 OWCP accepted appellant’s claim for unilateral primary osteoarthritis, right knee.
In a May 13, 2019 letter, the employing establishment advised that the last day appellant
worked was April 12, 2018, the last day he used sick or annual leave was July 10, 2018 and the
first day he used leave without pay was July 11, 2018.
On September 5, 2019 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period July 10, 2018 through May 30, 2019.5
In a compensation claim development letter dated September 18, 2019, OWCP requested
that appellant submit a well-reasoned medical report from his attending physician including a
thorough explanation with objective findings, as to how his accepted condition prevented him from
performing his employment duties during the claimed period of disability. It afforded him 30 days
to submit the requested evidence.
In an October 24, 2019 diagnostic report, Dr. Brian Worm, a Board-certified radiologist,
conducted an x-ray scan of appellant’s right knee, finding no acute fracture or dislocation. In
diagnostic reports of even date he conducted x-ray scans of appellant’s right ankle and hip, noting
no definite acute fractures or dislocations.

3

5 U.S.C. § 8101 et seq.

4

Appellant has a previously accepted January 27, 2014 traumatic injury claim (Form CA-1) under OWCP File No.
xxxxxx302 for a tear of the medial meniscus of the left knee, a left knee contusion and a sprain of the left wrist. On
April 29, 2019 OWCP administratively combined OWCP File Nos. xxxxxx302 and xxxxxx831, with the latter
designated as the master file.
5

Appellant noted that he retired from the employing establishment effective May 30, 2019.

2

In a medical report of even date Dr. John Petrey, Board-certified in emergency medicine,
evaluated appellant for a fall in which appellant stepped backwards and fell in a twisting manner,
injuring his right leg. On review of the diagnostic studies, he diagnosed a muscle strain of the
right lower leg.
In a February 24, 2020 diagnostic report Dr. David Rodriguez, a Board-certified
radiologist, performed an x-ray scan of appellant’s right knee, observing moderate osteoarthritis
along the medial compartment, and mild osteoarthritis along the lateral compartment. He noted
that the patellar alignment was anatomic and the soft tissue was unremarkable.
By decision dated April 2, 2020, OWCP denied appellant’s claim for compensation,
finding that the medical evidence of record did not address his claimed disability.
On April 14, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to OWCP’s April 2, 2020
decision.
A telephonic hearing was held on July 7, 2020. Appellant explained that he stopped work
on July 10, 2018 due to the pain in his right knee and that, because the office where he worked
was so small, there were no light-duty assignments available to him. The hearing representative
addressed appellant’s previous knee injuries and noted that appellant had submitted no medical
evidence discussing his claimed period of disability. The hearing representative explained that he
would need to submit contemporaneous evidence which opined on his work capacity during the
period. He held the case record open for an additional 30 days to allow for the submission of
evidence.
In a July 27, 2020 narrative report, Dr. Kris Williams, a Board-certified orthopedic
surgeon, noted that he began treating appellant for right knee pain in January 2016. On evaluation
and review of diagnostic studies, he diagnosed a degenerative medial meniscus tear and severe
arthritis of the right knee and opined that appellant’s conditions were caused by the persistent and
excessive walking on uneven terrain appellant performed as a part of his employment duties.
Dr. Williams reviewed the history of treatment, including arthroscopic knee su rgery on appellant’s
right knee. Moving forward, he recommended that appellant undergo a total knee arthroplasty to
treat his osteoarthritis. Dr. Williams opined that the severity of appellant’s osteoarthritis
eliminated the possibility of appellant returning to his normal job as his knee was not suited for
him to walk 13 miles a day in the performance of his employment duties as a letter carrier. 6
By decision dated September 15, 2020, the hearing representative affirmed the April 2,
2020 decision.

6

In an August 10, 2020 letter, counsel requested that appellant’s claim be expanded to include a degenerative
medial meniscus tear, right knee.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. 8 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.9 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.10
Under FECA, the term “disability” means an incapacity because of an employment injury,
to earn the wages the employee was receiving at the time of the injury. 11 When, however, the
medical evidence establishes that the residuals or sequelae of an employment injury are such that,
from a medical standpoint, prevent the employee from continuing in his or her employment, he or
she is entitled to compensation for any loss of wages. 12
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the specific employment factors
identified by the claimant.13
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period July 10, 2018 through May 30, 2019.

7

Supra note 3.

8

Y.D., Docket No. 20-0097 (issued August 25, 2020); D.P., Docket No. 18-1439 (issued April 30, 2020); Amelia S.
Jefferson, 57 ECAB 183 (2005).
9

Id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

10

20 C.F.R. § 10.5(f); J.M., Docket No. 18-0763 (issued April 29, 2020).

11

Id. at § 10.5(f); see J.T., Docket No. 19-1813 (issued April 14, 2020); Cheryl L. Decavitch, 50 ECAB 397 (1999).

12

J.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

13

T.T., Docket No. 18-1054 (issued April 8, 2020).

14

D.P., supra note 8; Sandra D. Pruitt, 57 ECAB 126 (2005).

4

In his July 27, 2020 narrative report, Dr. Williams recounted his history of treatment for
appellant relating to his right knee pain. He diagnosed a degenerative medial meniscus tear and
severe osteoarthritis of the right knee. Dr. Williams opined that appellant’s conditions were caused
by the persistent and excessive walking on uneven terrain he performed as a part of his employment
duties and provided that the severity of appellant’s osteoarthritis eliminated the possibility of him
returning to his normal duties as a letter carrier, believing that his knee would not be suited for
him to walk 13 miles per day. He, however, did not provide an opinion on causal relationship
between appellant’s claimed disability and the accepted employment condition(s). 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. 15 Therefore, this evidence
of no probative value and is insufficient to establish appellant’s disability claim.
Appellant submitted multiple diagnostic studies dated from October 24, 2019 to
February 24, 2020. However, the Board has held that diagnostic studies, standing alone, lack
probative value as they do not address whether the employment injury caused any of the diagnosed
conditions or associated disability. 16 For this reason, the diagnostic studies are of no probative
value.
Appellant also submitted an October 24, 2019 medical report in which Dr. Petrey
diagnosed a muscle strain of the right lower leg after appellant stepped back and fell in a twisting
manner, injuring his right leg. However, as Dr. Petrey provided no opinion on causal relationship,
his report is of no probative value and is insufficient to establish the claim. 17
As appellant has not submitted a medical report from a physician which includes a
rationalized medical opinion explaining how his accepted employment-related medical condition
caused the claimed disability, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability from
work for the period July 10, 2018 through May 30, 2019.

15

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

16

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

17

Supra note 17.

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ORDER
IT IS HEREBY ORDERED THAT the September 15, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6