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

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1999
Issued: February 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2013 appellant, through her attorney, filed a timely appeal from a July 31,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her back
condition was causally related to a February 19, 2012 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 29, 2012 appellant filed a traumatic injury claim alleging that on
February 19, 2012 she felt a pull in her lower back while lifting a tray out of the postal container
(postcon).2 She stopped work on February 22, 2012.
In a March 3, 2012 letter, Allison Hassett, a health and resource management specialist
for the employing establishment, controverted the claim alleging that appellant was out sick the
entire week before the alleged February 19, 2012 incident. She also noted that appellant did not
report the injury until February 28, 2012 and did not submit any medical evidence demonstrating
a causal relationship between the alleged February 19, 2012 incident and her lumbar condition.
In a February 22, 2012 initial evaluation report, Dr. Cecily Anto, a Board-certified
neurologist, stated that she examined appellant for increasing low back pain after she lifted
heavy trays weighing about 50 pounds at work on February 19, 2012. She related that over the
last two days appellant experienced severe spasms and low back pain radiating into the right hip
and anterior thigh with spasms in the right thigh muscles. Dr. Anto reviewed appellant’s history
and conducted an examination. She reported that appellant’s deep tendon reflexes were
symmetric at 2+ bilaterally in both upper and lower extremities. Cervical range of motion was
limited and painful and lumbar flexion had severe spasm of the lumbar spine. Straight leg raise
testing was not tested. Dr. Anto reported that appellant had a work-related injury with severe
lumbar spasm.
In a February 22, 2012 state workers’ compensation form, Dr. Anto noted the
February 19, 2012 work incident and stated that she had previously treated appellant for a
cervical disc herniation since 2004. Upon examination she observed pain in appellant’s right leg
and stiffness in the back and hip. Dr. Anto reported restricted range of motion in appellant’s
lumbar flexion and right lumbar paraspinal muscle spasms. She diagnosed lumbago and muscle
spasm. Dr. Anto checked “yes” that the incident described was the cause of appellant’s injury.
In February 27 and March 5, 2012 reports, Dr. Anto related appellant’s complaints of
severe low back pain since a February 19, 2012 injury and noted that she was unable to work
because she could not sit or stand comfortably. Reflexes were +2 symmetrically in bilateral
upper and lower extremities and cervical range of motion was full and not painful. Dr. Anto
reported that appellant’s lumbar range of motion was limited at 75 degrees. Straight leg raise
testing was negative at 90 degrees bilaterally. Dr. Anto stated that a magnetic resonance imaging
(MRI) scan of the lumbar spine revealed a disc herniation at L2-3, L4-5 and right sided disc
protrusion in addition to L4-5 disc bulge. She diagnosed severe right lumbar pain with spasm
and multiple lumbar spine disc herniations with radicular symptoms.
In an unsigned March 2, 2012 MRI scan report, an unknown provider observed right
foraminal/lateral disc protrusion at L2-3 resulting in mild to moderate right foraminal narrowing,
mild right L3-4 foraminal narrowing with small right foraminal disc protrusion and milder
degenerative changes.
2

The record reveals that appellant filed two previous traumatic injury claims for January 29, 2007 (File No.
xxxxxx443) and December 14, 2008 (File No. xxxxxx015) injuries.

2

By letter dated March 12, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional evidence to establish that the
February 19, 2012 incident occurred as alleged and that she sustained a diagnosed condition as a
result of the alleged incident.
In a March 12, 2012 physical therapy evaluation report, Dr. Lisa Grieco, a physical
therapist, related appellant’s complaints of lower back pain with radicular symptoms down the
right lower extremity. She conducted an examination and reported that appellant had signs and
symptoms consistent with lumbar radiculopathy and lumbosacral sprain/strain. Dr. Grieco
advised appellant to undergo physical therapy treatment approximately two to three times a
week. She submitted various physical therapy treatment notes.
In a March 21, 2012 report, Dr. Anto stated that appellant continued to have low back
pain after a February 19, 2012 work injury and had difficulty ambulating due to the pain. Upon
examination, she observed symmetrical motor strength and graded 5/5 in all extremities except
for weakness in the right lower extremity. Dr. Anto also reported tenderness and spasm of the
lumbar spine and right sacroiliac (SI) joint and gluteal muscles. Lumbar spine was flexed to 80
degrees and straight leg raise testing was negative at 90 degrees bilaterally. Dr. Anto diagnosed
multiple lumbar disc herniations with acute right sided L3-4 radiculopathy and chronic bilateral
S1 radiculopathy.
In a March 26, 2012 statement, appellant related that on February 19, 2012 she felt a pull
in her lower back when she lifted a tray of mail weighing approximately 50 to 60 pounds. She
explained that she did not report the injury right away because she thought it was just a pulled
muscle and would be fine with rest. Appellant stated that when the pain in her back increased
she sought medical treatment from Dr. Anto on February 22 and 27 and March 5 and 12, 2012.
On February 28, 2012 she called the employing establishment to inform them of her injury and
was advised to come into work to fill out a Form CA-1. Appellant reported that she filed a
previous traumatic injury claim for a February 6, 2008 incident when she fell over a rail at work.
In an April 3, 2012 electromyogram (EMG) and nerve conduction velocity (NCV) report,
Dr. Anto noted the February 19, 2012 work injury and appellant’s complaints of continued low
back pain radiating into her right lower extremity. Upon examination, she observed decreased
pinprick in the right L3-4 distribution. Dr. Anto reported that appellant had acute right-sided
L3-4 radiculopathy and that she could not rule out bilateral S1 radiculopathy.
In a decision dated April 17, 2012, OWCP denied appellant’s claim. It accepted that the
February 19, 2012 incident occurred as alleged and that she sustained a diagnosed lumbar disc
herniation and lumbar radiculopathy but denied the claim finding insufficient medical evidence
to establish that her diagnosed condition was causally related to the accepted incident.
On May 7, 2012 appellant requested a review of the written record.
In a May 7, 2012 note, Dr. Anto stated that on February 19, 2012 appellant injured her
low back when she lifted a heavy 50-pound tray at work, which caused her low back pain and
lumbar spine disc herniations and bulges at L2-3, L3-4 and L4-5.

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In progress notes dated from May 7 and July 2, 2012, Dr. Anto stated that appellant’s
intermittent low back pain continued to improve following a February 19, 2012 workers’
compensation injury and noted that she began working part-time light duty. Sensory
examination revealed normal sensation to pinprick in all extremities and decreased sensation in
the right L3-4 distribution. Reflexes are +2 symmetrically in bilateral upper and lower
extremities except for absent right Achilles. Dr. Anto observed mild tenderness over lumbar
spine and lumbar paraspinals. Cervical range of motion was full and not painful and lumbar
flexion was limited to 75 degrees. Straight leg raise testing was negative at 90 degrees
bilaterally. In the May 7, 2012 report, Dr. Anto reported that appellant had acute right L3-4 and
multiple lumbar disc herniations. She opined that both of these conditions were related to the
February 19, 2012 work injury.
In May 7 and June 5, 2012 duty status reports, Dr. Anto related that on February 19, 2012
appellant felt pain in her lower back when she was lifting trays out of a postcon. She authorized
appellant to return to light duty four hours per day.
Appellant submitted more physical therapy reports dated from April 18 to May 11, 2012.
By decision dated August 2, 2012, OWCP denied modification of the April 17, 2012
decision finding that the evidence was insufficient to establish that appellant’s back condition
was causally related to the February 19, 2012 employment incident.
In progress notes dated August 13, 2012 and January 21, 2013, Dr. Anto related that
appellant continued to have intermittent pain in her right lumbar spine after a February 19, 2012
work injury. Upon examination, she observed tenderness in the lumbar spine in the right SI
joint. Sensory examination demonstrated normal sensation to pinprick in all extremities.
Dr. Anto reported that reflexes were +2 symmetrically in bilateral upper and lower extremities.
Cervical range of motion was full but not painful. Lumbar flexion was to 90 degrees and straight
leg raise testing was negative at 90 degrees bilaterally. Dr. Anto diagnosed multiple lumbar disc
herniations and acute right L3-4 radiculopathy related to the February 19, 2012 work injury. She
recommended appellant continue working part-time light duty. Dr. Anto provided work
restrictions for appellant and submitted work restriction forms.
Appellant submitted physical therapy reports dated June 7 to August 15, 2012.
In an April 25, 2013 report, Dr. Anto stated that appellant had been a patient in her office
since November 24, 2004. She related that on February 22, 2013 appellant consulted her for
evaluation of an acute onset of low back pain after she lifted a heavy tray weighing
approximately 50 pounds at work on February 19, 2012. Dr. Anto reported that, at the time of
examination, appellant was bent over forward in the lumbar area because of severe pain and
demonstrated abnormal motor examination with right hip flexor weakness. She also observed
severe spasm of appellant’s lumbar spine with anteriorly flexed posturing. Dr. Anto described
her treatment of appellant and provided findings on examination. She reported that a March 2,
2013 MRI scan of the spine revealed disc herniation at L2-3 with right foraminal disc protrusion
and L3-4 right foraminal disc protrusion resulting in mild right foraminal narrowing at L4-5
diffuse disc bulge. Dr. Anto also noted that an April 3, 2012 EMG/NCV study of the lower

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extremities demonstrated acute denervation changes of profuse nature which was consistent with
an L3-4 radiculopathy.
Dr. Anto diagnosed acute lumbar disc herniations with right-sided radicular symptoms.
She explained that on February 19, 2012 appellant experienced acute onset of low back pain
radiating into the right lower extremity and severe flexor spasm. Dr. Anto opined that there was
a direct causal relationship between the February 19, 2012 incident when appellant felt a pull in
the low back after she lifted a tray weighing 50 pounds and the increasing radicular pains and
weakness. She explained that at the time of appellant’s initial visit appellant had severe lumbar
paraspinal muscle spasm and that her spine was in an anteriorly flexed posture. Dr. Anto
reported that there was no mention in the MRI scan report that appellant’s disc herniations were
degenerative in nature and that it most likely resulted from the incident on February 19, 2012.
She noted that she had treated appellant since 2004 for cervical radiculopathy and pointed out
that she did not complain of any low back pain until after the February 19, 2012 work incident.
Dr. Anto explained that for these reasons it was her opinion that the February 19, 2012 incident
at work was causally responsible for the lumbar disc herniations and severe acute right lumbar
radiculopathy.
In a May 6, 2013 letter, appellant’s counsel submitted a request for reconsideration. He
alleged that the medical evidence submitted by Dr. Anto established a causal relationship
between appellant’s diagnosed lumbar condition and the February 19, 2012 employment
incident. Counsel stated that Dr. Anto’s April 25, 2013 report included a complete and accurate
history, the results of objective testing and an opinion, supported by medical explanation and
rationale, regarding appellant’s work-related disability.
In July 2 and August 13, 2012 reports, Dr. Anto noted appellant’s February 19, 2012
employment incident and related her complaints of intermittent pain radiating to her right lower
extremity. She observed tenderness over the lumbar spine and right SI joint and gluteal muscles.
Sensory examination showed normal sensation to pinprick in all extremities except for decreased
in the right L3-4 distribution. Reflexes were +2 symmetrically in bilateral upper and lower
extremities. Lumbar flexion was 90 degrees. Straight leg raise testing was negative at 90
degrees bilaterally. Dr. Anto diagnosed multiple lumbar disc herniations with acute right L3-4
radiculopathy.
In a decision dated July 31, 2013, OWCP denied modification of the August 2, 2012
decision finding that the medical evidence failed to establish that appellant’s back condition was
causally related to the February 19, 2012 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
3

5 U.S.C. §§ 8101-8193.

4

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

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specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS
Appellant alleges that on February 19, 2012 she sustained an injury to her lower back
when she carried heavy mail trays at work. OWCP accepted that the February 19, 2012 incident
occurred as alleged and that she has a diagnosed back condition but denied the claim finding
insufficient medical evidence to establish that her back condition was causally related to the
accepted incident. The Board finds that this case is not in posture for decision as to whether
appellant sustained a back condition as a result of the February 19, 2012 employment incident.
An employee who claims benefits under FECA has the burden of establishing by the
weight of reliable, probative and substantial evidence that the condition for which compensation
is sought is causally related to a specific employment incident. As part of this burden, the
5

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

6

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

7

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

8

David Apgar, 57 ECAB 137 (2005).

9

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

10

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

11

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

12

James Mack, 43 ECAB 321 (1991).

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employee must present rationalized medical opinion evidence, based upon a complete and
accurate factual and medical background, establishing causal relationship.13 However, it is well
established that proceedings under FECA are not adversarial in nature and while the employee
has the burden to establish entitlement to compensation, OWCP shares responsibility in the
development of the evidence to see that justice is done.14
Appellant received medical treatment from Dr. Anto from February 22, 2012 to
August 13, 2013 for complaints of increasing low back pain radiating into the right hip and
anterior thigh hip after she lifted heavy trays at work on February 19, 2012. Dr. Anto stated that
she had previously treated appellant for cervical radiculopathy beginning in November 2004 and
that she had never complained of low back pain until after the February 19, 2012 work incident.
Upon examination, she observed mild tenderness over lumbar spine and right SI joint and severe
spasm of the lumbar spine with anteriorly flexed posturing. Lumbar range of motion was limited
to 75 degrees and straight leg raise testing was negative at 90 degrees bilaterally. In a March 5,
2012 report, Dr. Anto reported that an MRI scan of the lumbar spine revealed a disc herniation at
L2-3, L4-5 and right sided disc protrusion in addition to L4-5 disc bulge. She also noted that an
April 3, 2012 EMG/NCV study of the lower extremities demonstrated acute denervation changes
of profuse nature which was consistent with an L3-4 radiculopathy. Dr. Anto diagnosed multiple
lumbar disc herniations with acute right sided L3-4 radiculopathy. In a May 7, 2012 report, she
opined that both of these conditions were related to the February 19, 2012 work injury. In an
April 25, 2013 report, Dr. Anto again opined that there was a direct causal relationship between
the February 19, 2012 incident and appellant’s lumbar condition. She related that at the time of
appellant’s initial visit she observed severe lumbar paraspinal muscle spasm and weakness.
Dr. Anto noted that there was no mention in the MRI scan report that appellant’s disc herniations
were degenerative in nature and that it most likely resulted from the incident on
February 19, 2012. She explained that for these reasons it was her opinion that the February 19,
2012 incident at work was causally responsible for the lumbar disc herniations and severe acute
right lumbar radiculopathy.
The Board notes that while none of Dr. Anto’s reports are completely rationalized, they
are consistent in indicating that appellant sustained an employment-related injury. Dr. Anto
accurately described that on February 19, 2012 appellant felt a pull in her back when she lifted
heavy mail trays at work. She treated appellant shortly thereafter and provided findings based on
diagnostic testing and physical examination. Dr. Anto noted that appellant did not have a history
of lumbar complaints and that the MRI scan showed no evidence that appellant’s disc herniations
were degenerative in nature. She opined that it most likely resulted from the incident on
February 19, 2012. Although Dr. Anto did not provide a fully-rationalized medical opinion on
causal relationship explaining how lifting a heavy tray caused appellant’s lumbar condition, she
provided a consistent opinion based on examination findings and an accurate factual and medical
background that appellant’s current back condition was caused by the February 19, 2012
employment incident. While these reports are not sufficient to meet appellant’s burden of proof
to establish her claim, they raise an uncontroverted inference between her multiple lumbar disc
13

Supra note 5.

14

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

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herniations and L3-4 radiculopathy and accepted incident and are sufficient to require OWCP to
further develop the medical evidence and the case record.15
On remand, OWCP should prepare a statement of accepted facts and refer appellant to an
appropriate medical specialist for a detailed opinion as to whether her current lumbar condition
was causally related to the February 19, 2012 work event. Following this and any other further
development as deemed necessary, it shall issue an appropriate merit decision on appellant’s
claim.
CONCLUSION
The Board finds that this case is not in posture for a decision and requires additional
development of the medical evidence by OWCP.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: February 20, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

15

See R.O., Docket No. 13-626 (issued June 18, 2013); Jimmy A. Hammons, 51 ECAB 219 (1999); John J.
Carlone, 41 ECAB 354 (1989).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS CANTEEN SERVICE, Dublin, GA,
Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0221
Issued: July 22, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2014 appellant, through counsel, filed a timely application for review
from an August 4, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days elapsed from June 5, 2013, the date of the most recent
merit decision of OWCP, to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 20, 2012 appellant, then a 58-year-old food service worker, filed an
occupational disease claim (Form CA-2) alleging that she developed swelling and pain in her
neck and shoulder as a result of working in “main plate.” She first became aware of her
condition and of its relationship to her employment on August 4, 2012.
By letter dated September 6, 2012, OWCP advised appellant of the evidence needed to
establish her claim. It afforded her 30 days to submit additional evidence. OWCP also inquired
about appellant’s duties to the employing establishment.
In a report dated March 6, 2012, Dr. Habigaile Cribe, a Board-certified internist,
diagnosed appellant with sprain and strain of the shoulder and upper arm. Appellant also
submitted reports from Dr. Cribe dated July 31, August 9, and 23, 2012, as well as the results of
a magnetic resonance imaging (MRI) scan of the spine dated October 8, 2012.
By decision dated November 1, 2012, OWCP denied appellant’s claim, finding that she
had not established that her medical condition was caused by a traumatic event on
August 4, 2012.
On November 7, 2012 appellant requested an oral hearing before an OWCP hearing
representative.
A hearing was held on March 19, 2013. Counsel noted that appellant had filed an
occupational disease claim and contended that appellant had submitted sufficient evidence to
establish a causal relationship between duties of her federal employment and an aggravation of
her condition. The hearing representative stated that Dr. Cride’s reports did not contain an
explanation of causal relationship and that appellant had not provided a sufficient statement of
the duties alleged to cause her conditions. He notified counsel that he would keep the record
open for 30 days of the submission of additional evidence.
The employing establishment submitted a report of the ergonomics of appellant’s work
environment dated November 13, 2012, which included pushing a tray down an assembly line.
In an attached statement, it noted that it had no evidence that she worked in “main plate,” but
instead worked at a beverage station and a vegetable/soup station.
By letter dated April 16, 2013, the employing establishment stated that it concurred with
the denial of appellant’s claim because the medical evidence did not demonstrate that her
condition was related to an injury on August 4, 2012.
Appellant submitted admission notes dated February 7 and 18, 2013, which were not
signed by a physician.
In an operative report dated March 4, 2013, Dr. Peter Holliday, a Board-certified
neurosurgeon, described performing the following procedures on appellant on that date: an
application of Gardner-Wells tongs to the skull; an anterior cervical discectomy; a left-sided
foraminotomy at C4-5 and C5-6; an anterior cervical interbody fusion; demineralization of the
bone matrix at C4-5 and C5-6; and application of a titanium plate and screws. He stated a

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postoperative diagnosis of cervical spondylosis and neural foraminal stenosis producing left
cervical radiculopathy at C4-5 and C5-6.
On March 4, 2013 Dr. Larry Schwartz, a Board-certified radiologist, examined the results
of an x-ray of appellant’s cervical spine. He stated an impression of status post fusion at C4-5
and C5-6 levels with interior plates and screws.
In a diagnostic report dated March 5, 2013, Dr. Arthur E. McCain, a Board-certified
diagnostic radiologist, examined the results of an x-ray of appellant’s cervical spine. He stated a
stable appearance to enter a cervical fusion at C4-5 and C5-6.
In a note dated April 2, 2013, Dr. Holliday noted that appellant was four weeks
postsurgery and that her x-rays looked good.
By decision dated June 5, 2013, the hearing representative affirmed OWCP’s decision of
November 1, 2012. He noted that appellant had still not submitted a medical report containing a
clear and reasoned opinion on the causal relationship between duties of her federal employment
and her diagnosed conditions.
In a note dated April 30, 2013, Dr. Holliday stated that he would release appellant to
work on May 6, 2013 with permanent restrictions of no extension of the neck, no lifting above
the shoulder, and no lifting more than 20 to 25 pounds.
Appellant submitted a description of her tour of duty and a statement dated
May 18, 2013. She noted that the employing establishment had told her that there was no work
available within her restrictions and that she should apply for Social Security. Appellant also
submitted several documents related to her use of leave.
On June 4, 2014 appellant, through counsel, requested reconsideration. Counsel noted
that additional evidence had been submitted, namely her statement, the report of Dr. Holliday
dated April 30, 2013, and a description of her job duties. He argued that appellant had offered
credible medical documentation confirming the presence of an injury resulting from her work
duties and that the injuries had caused periods of disability. Counsel stated that at the very least,
she had submitted enough information to require further development of the medical evidence.
By decision dated August 4, 2014, OWCP declined appellant’s request for
reconsideration without conducting a merit review. It noted that she had not submitted any new
and relevant evidence to support reconsideration. OWCP also noted that counsel’s arguments
would depend on some degree of medical evidence of a causal relationship between her
conditions and duties of her federal employment.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
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

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evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations
provide that 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.3
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.4 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.5
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.6
ANALYSIS
OWCP issued a June 5, 2013 decision finding that appellant had not established an
occupational disease related to factors of her federal employment. On June 4, 2014 appellant
requested reconsideration of this decision.
As noted above, the Board does not have jurisdiction over the merits of the June 5, 2013
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her claim.
In her June 4, 2014 request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, or advance a new and relevant legal argument not
previously considered. Counsel’s argument contained in her reconsideration request merely
stated that she had submitted sufficient evidence to establish a causal relationship between duties
of her federal employment and her diagnosed condition. This argument had already been
considered in the hearing representative’s decision of June 5, 2013. Thus, appellant is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).
The underlying issue is whether appellant met her burden of proof to establish an
occupational disease, and specifically whether she had submitted sufficient evidence to establish
a causal relationship between duties of her federal employment and the conditions of her neck
and shoulders. A claimant may be entitled to a merit review by submitting new and relevant
evidence, however, appellant did not submit any new and relevant evidence in this case. With
her reconsideration request, she submitted a note from Dr. Holliday dated April 30, 2013, a
description of her duties, and a statement. These documents, while not previously in the record
and considered by OWCP, are irrelevant to the underlying issue of appellant’s burden of proof to
2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

4

See Daniel Deparini, 44 ECAB 657, 659 (1993).

5

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
6

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

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establish an occupational disease in the performance of duty. The note from Dr. Holliday dated
April 30, 2013, while not previously considered by OWCP, is irrelevant to the underlying issue
of causal relationship because it does not contain a rationalized opinion on the causal relationship
between appellant’s condition and duties of her federal employment. It merely stated that
Dr. Holliday would release appellant to work on May 6, 2013 with permanent restrictions of no
extension of the neck, no lifting above the shoulder, and no lifting more than 20 to 25 pounds.
Likewise, the description of appellant’s duties and her statement do not address the issue of
causal relationship.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 4, 2014 is affirmed.
Issued: July 22, 2015
Washington, DC

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

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

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

5


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

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

Docket No. 09-1249
Issued: November 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 16, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated March 16, 2009 denying her claim for a schedule
award. Under 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 sustained any permanent impairment to a scheduled
member of her body causally related to her accepted right leg condition, thereby entitling her to a
schedule award under 5 U.S.C. § 8107.
FACTUAL HISTORY
On October 21, 2006 appellant, a 52-year-old mail carrier, sustained cuts and bruises to
her head and neck and injured her right leg when her truck was struck by another vehicle. She
filed a claim for benefits, which the Office accepted for laceration of the right leg and contusion of
the face, scalp and neck.

On January 6, 2007 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her right leg.
In a report dated May 19, 2008, Dr. Harry K. Delcher, Board-certified in orthopedic
surgery and appellant’s treating physician, indicated that appellant had a 30 percent impairment
of the right leg based on atrophy and pain.
In order to determine whether appellant had any permanent impairment from her
accepted right leg condition, the Office referred appellant for an examination with Dr. Joseph C.
Tatum, Board-certified in orthopedic surgery. In a March 3, 2009 report, Dr. Tatum found that
appellant had no ratable impairment of the right leg. He stated that on examination appellant still
had discoloration about 15 centimeters above the right ankle on the lateral aspect of the leg;
however, he noted no swelling or evidence of weakness in the right leg. Dr. Tatum advised that
ligaments in the right knee were stable under stress and noted full extension of the right knee,
with flexion to 140 degrees. He concluded that appellant had completely recovered from her
October 2006 work injuries, had reached maximum medical improvement and did not require
any further treatment.
In a March 13, 2009 report, an Office medical adviser stated that despite occasional
swelling and discomfort appellant had no objective findings of any impairment to her right leg.
He found that appellant had a zero percent impairment of her right lower extremity.
By decision dated March 16, 2009, the Office denied appellant’s schedule award claim.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.2 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
(fifth edition) (the A.M.A., Guides) as the standard to be used for evaluating schedule losses.3
The claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment.4

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

Id. at § 8107(c)(19).

3

20 C.F.R. § 10.404.

4

Veronica Williams, 56 ECAB 367, 370 (2005).

2

ANALYSIS
In the instant case, the Office determined that appellant had no ratable permanent
impairment of her lower extremities causally related to her accepted right leg condition based on
the Office medical adviser’s March 13, 2009 report. The Office medical adviser adopted the
findings of Dr. Tatum who, in his March 3, 2009 report, noted no swelling or evidence of
weakness in the right leg and indicated that the ligaments in her right knee were stable under
stress. Dr. Tatum stated that appellant demonstrated full extension of the right knee, with flexion
to 140 degrees. He found that appellant had completely recovered from her October 2006 work
injuries. The Office medical adviser, relying on Dr. Tatum’s referral opinion, concluded that
appellant had no objective findings of any impairment to her right leg and determined that she
had zero percent impairment of her right lower extremity.
Appellant submitted a May 19, 2008 report from Dr. Delcher, her treating physician. He
indicated that appellant had a 30 percent impairment of the right leg based on atrophy and pain
but did not relate these findings to the applicable tables and charts of the A.M.A., Guides. The
report therefore did not contain an impairment rating which correlated with the A.M.A., Guides.
As Dr. Delcher offered a mere conclusion regarding the degree of appellant’s impairment,
without explaining the basis for his rating factors, the Office medical adviser properly found that
his opinion did not present a basis for a schedule award for the right lower extremity.5
As there is no other medical evidence establishing that appellant sustained any permanent
impairment of a scheduled member, the Office properly found that appellant was not entitled to a
schedule award due to her accepted right leg condition. The Board will affirm the March 16,
2009 decision.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment to a
scheduled member of her body causally related to her accepted right leg condition, thereby
entitling her to a schedule award under 5 U.S.C. § 8107.

5

The Board notes that a description of appellant’s impairment must be obtained from a physician, which must be
in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the March 16, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, GA, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 09-275
Issued: August 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 6, 2008 appellant filed a timely appeal from March 7 and September 16,
2008 decisions of the Office of Workers’ Compensation Programs adjudicating his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for his accepted aggravation
of a ventral hernia.
FACTUAL HISTORY
On June 11, 1998 appellant, then a 45-year-old letter carrier, filed a claim for an
occupational disease claim alleging that on January 9, 1995 he realized that he had a left foot
injury and a hernia causally related to his employment. His claim was accepted for a fractured
left foot and aggravation and acceleration of a ventral hernia. On August 21, 1998 appellant
filed a claim for a schedule award. On May 10, 1999 the Office granted a schedule award based

on 25 percent impairment of his left lower extremity. On July 17, 2003 and February 9, 2004
appellant underwent surgical repair of his ventral hernia.1 On July 25, 2007 he filed a claim for a
schedule award for his hernia condition.
Appellant submitted a January 5, 1999 rating decision from the Department of Veterans
Affairs which noted that in a prior rating decision dated July 17, 1997 he was found to be 100
percent disabled due to his military service-connected ventral hernia.
In a report dated July 27, 2007, Dr. John A. DeClue, an attending family practitioner,
stated that appellant had experienced abdominal problems since 1980. After surgery in 1994 to
repair a ventral incisional hernia, appellant returned to work with restrictions, but he required
additional surgery in 2003 and 2004. Dr. DeClue opined that appellant was totally disabled.
By letter dated December 19, 2007, the Office advised appellant that the Federal
Employees’ Compensation Act did not provide a schedule award for hernias.
By decision dated March 7, 2008, the Office denied appellant’s claim for a schedule
award for his accepted aggravation and acceleration of a ventral hernia.
Appellant requested an oral hearing which was held on July 7, 2008. He testified that he
had undergone multiple surgeries on his ventral hernia which left him in severe pain and
significantly restricted his physical activities. Appellant argued that he was entitled to a schedule
award based on section 8107(c)(21) which provides for an award for up to $3,500.00 for serious
disfigurement of the face, head or neck. He also argued that he was entitled to a schedule award
under section 8107(c)(22) which provides for permanent loss or loss of use of any other
important external or internal organ of the body as determined by the Secretary of Labor.
By decision dated September 16, 2008, the Office denied appellant’s claim for a schedule
award on the grounds that the Act did not provide a schedule award for hernias.2
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the

1

Appellant previously underwent surgery for repair of a ventral hernia in 1994.

2

Subsequent to the September 16, 2008 decision, additional evidence was associated with the case. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

5 U.S.C. § 8107.

2

American Medical Association, Guides to the Evaluation of Permanent Impairment (the A.M.A.,
Guides).4
Section 8107 of the Act specifies bodily members or functions as the upper and lower
extremities, eye or vision and loss of hearing.5 No schedule award is payable for any member,
function or organ of the body not listed in section 8107 or its implementing regulation.6 The
Secretary of Labor, through implementing regulations, added to the list of covered organs the
breast, kidney, larynx, lung, tongue, penis, testicle, ovary, uterus/cervix and vulva/vagina. The
Act does not provide for the Office to add organs to the compensation schedule on a case-bycase basis7 nor does the Board have the power to enlarge the provisions of either statute or
regulation.8
The Act provides that, for serious disfigurement of the face, head or neck likely to
handicap an individual in securing or maintaining employment, proper and equitable
compensation not to exceed $3,500.00 shall be awarded in addition to any other compensation
payable under this schedule.9
ANALYSIS
Appellant filed a claim for a schedule award based on impairment due to his accepted
aggravation and acceleration of a ventral hernia.
Appellant submitted evidence that the Department of Veterans Affairs found him to be
100 percent disabled due to his military service-connected ventral hernia. The Board has held
that entitlement to benefits under one program or statute does not establish entitlement to
benefits under the Act.10
In this case, a schedule award cannot be granted for any permanent impairment based on
appellant’s hernia condition because a hernia has not been included under the Act or regulations
as a scheduled member. Appellant argued that he was entitled to a schedule award undersection
8107(c)(22) which provides for permanent loss or loss of use of any other important external or
internal organ of the body as determined by the Secretary of Labor. However, as noted, no
schedule award is payable for any member, function or organ of the body not listed in section
8107 of the Act or its implementing regulations. A hernia is not listed in either section 8107 or
4

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

5

5 U.S.C. § 8107.

6

See J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008); Janet C. Anderson, 54 ECAB 394 (2003).

7

Janet C. Anderson, supra note 6.

8

Id.

9

5 U.S.C. § 8107(c)(21).

10

See Daniel Deparini, 44 ECAB 657, 659-60 (1991).

3

the implementing regulations which added organs to the original list in section 8107. As noted,
the Act does not provide for the Office to add organs to the compensation schedule on a case-bycase basis nor does the Board have the power to enlarge the provisions of either statute or
regulation.
Appellant argued that he was entitled to a schedule award for scarring and disfigurement
due to his hernia based on section 8107(c)(21). This section provides for an award of up to
$3,500.00 for serious disfigurement of the face, head or neck. There is no evidence in this case
that appellant has disfigurement of his face, head or neck. Section 8107(c)(21) does not provide
an award for disfigurement based on a hernia. Therefore, appellant is not entitled to a schedule
award based on section 8107(c)(21).
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for his accepted
aggravation and acceleration of a ventral hernia.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16 and March 7, 2008 are affirmed.
Issued: August 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
U.S. POSTAL SERVICE, SOUTH SUBURBAN
ILLINOIS PROCESSING & DISTRIBUTION
CENTER, Bedford Park, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0632
Issued: May 12, 2021

Case Submitted on the Record

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

On March 10, 2021 appellant filed an appeal from a September 8, 2020 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0632.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the September 8, 2020 decision was March 7, 2021. As this fell
on a Sunday, appellant had until Monday, March 8, 2021 to file the appeal.3 Appellant did not file
an appeal with the Board until March 10, 2021, more than 180 days after the September 8, 2020
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

3

Id. at § 501.3(f).

OWCP decision, therefore, the Board finds that the appeal docketed as No. 21-0632 is untimely
filed. The Board is without jurisdiction to review the appeal. Appellant has not offered a reason
to explain the failure to timely file an appeal with supporting documentation sufficient to establish
compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0632 is dismissed.
Issued: May 12, 2021
Washington, DC

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

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

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

4

Id. at § 501.6(d).

2


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

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

Docket No. 13-1178
Issued: July 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 17, 2013 appellant, through counsel, filed a timely appeal from the February 1,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 16, 2012 on the grounds that she
had no residuals of her October 24, 2005 work injury; and (2) whether appellant met her burden
of proof to establish that she had continuing residuals causally related to the October 24, 2005
work injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on October 24, 2005 appellant, then a 32-year-old letter carrier,
sustained rotator cuff tendinitis and a partial rotator cuff tear of her right shoulder due to lifting
mail out of a container. Appellant began working in a limited-duty position and received
medical benefits and compensation for periods of disability.
On May 3, 2006 Dr. Keith P. Johnson, an attending Board-certified orthopedic surgeon,
performed right shoulder surgery, including an arthroscopy, subacromial decompression with
bursectomy and slight debridement and debridement of rotator cuff tendon. On December 18,
2007 he performed additional right shoulder surgery, including arthroscopy, debridement of
rotator interval, revision subacromial decompression/bursectomy and distal clavicle excision.
These procedures were authorized by OWCP.
In a December 5, 2011 report, Dr. Leon Sultan, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, described appellant’s medical history, including the
history of her October 24, 2005 work injury and subsequent treatment. Appellant complained of
experiencing right shoulder pain for up to 14 hours a day. Dr. Sultan stated that, on examination
of the right shoulder, he observed scars of a well-healed arthroscopic puncture wound and that
there was no deltoid muscle atrophy on the right side when compared to the left side. On range
of motion testing of appellant’s right shoulder, right shoulder abduction and forward elevation
was at 175 degrees (normal being 170 to 180 degrees), internal rotation was complete and
external rotation was to 45 degrees (normal 40 to 50 degrees). Adduction was to 45 degrees
(normal 45 to 50 degrees) and posterior extension was to 40 degrees (normal 40 to 45 degrees).
Dr. Sultan noted that appellant complained of right shoulder pain at the endpoint of motion
testing, but he detected no reactionary muscle spasm or any resistance to range of motion testing.
Equal range of motion findings were noted on the opposite side and the right shoulder
impingement, Hawkin’s and drop arm tests were normal. Dr. Sultan indicated that sensory
testing of the right upper extremity was intact, that there was a firm grip on the right side and that
pinch mechanism was well preserved. He concluded that there were no objective positive
examination findings with respect to appellant’s right shoulder and that the examination did not
confirm that she was suffering from any disabling residuals of the accepted conditions.
Dr. Sultan stated, “Today’s objective examination in regards to this woman’s right shoulder does
not confirm any current disability in regards to the employment injury of October 24, 2005 nor is
there any orthopedic disability not related to the employment injury of October 24, 2005.” He
advised that there were no physical limitations on appellant’s work as a letter carrier with respect
to her October 24, 2005 work injury. Dr. Sultan stated that she did not require any further
treatment for her right shoulder condition.2
In a January 16, 2012 report, Dr. Johnson noted that appellant presented for an
examination on that date.3 He stated that she had tightness of her right shoulder both when
raising it maximally overhead and behind her back. When appellant rotated her right arm
2

Dr. Sultan indicated that appellant could occasionally handle 50 to 100 pounds. In a December 5, 2011 work
restrictions form, he stated that she did not have any work restrictions related to her right shoulder condition.
3

Dr. Johnson indicated that he last saw appellant in 2008.

2

outwardly at times she felt a sharp catching sensation and pain, although the pain was not strong
and went away. The clinical appearance of the right shoulder was benign and forward elevation
of the right shoulder was to 160 to 170 degrees versus full motion on the left. Appellant’s
external rotation was symmetric at 60 degrees and her internal rotation was approximately one or
two vertebral levels less, right versus left. She had discomfort at the end range of forward
elevation and internal rotation. There was discomfort to palpation over the biceps tendon
proximally, but appellant was nontender over the acromioclavicular joints. Dr. Johnson
diagnosed right shoulder impingement, mild right shoulder posterior capsular tightness, proximal
biceps tendinitis/tendinosis and status arthscopic surgery times two. He discussed appellant’s
May 3, 2006 and December 18, 2007 surgeries due to the October 24, 2005 work injury and
stated:
“[Appellant] had partial improvement with these operations but was left with endrange loss of motion to forward elevation and internal rotation, and has had
continued subjective complaints of pain. She has never had follow-up imaging
tests performed. May consider follow-up [magnetic resonance imaging] and/or
examination under ultrasound and may also consider repeat trial of pain injections
with anesthetic and plus/minus cortisone. At present, however, I do not see the
patient again as a potential operative candidate. Previously given limitations to
avoid pulling and overhead lifting, I would recommend continuing, these are
indefinite recommendations.”
In a February 9, 2012 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits on the grounds that she ceased to have residuals of
her October 24, 2005 work injury. It found that the December 5, 2011 report of Dr. Sultan
established that she ceased to have residuals of her October 24, 2005 work injury. OWCP noted
that the January 16, 2012 report of Dr. Johnson was not well rationalized. Appellant was advised
that she had 30 days from the date of the letter to submit evidence and argument contesting the
proposed termination action.
In a March 16, 2012 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective March 16, 2012 on the grounds that she had no residuals of her
October 24, 2005 work injury. It found that the weight of the medical evidence regarding
continuing work-related residuals rested with the December 5, 2011 opinion of Dr. Sultan.
Appellant submitted a follow-up letter from Dr. Johnson dated January 16, 2012.
Dr. Johnson summarized some of the findings of his January 16, 2012 examination which were
contained in his previously submitted report and indicated that she had the same findings in
2008. He stated:
“Within a reasonable probability of medical certainty, I do feel that [appellant’s]
injury and surgery has left her with a permanent functional deficit, in the right
shoulder, I had previously stated that returning to work that involves lifting and
pulling especially overhead is likely to be poorly tolerated and only give
additional symptoms. I continue to feel that this is true. [Appellant] may perform
work for which this is not a requirement.”

3

In a July 22, 2012 decision, OWCP denied modification of its March 16, 2012
termination of appellant’s wage-loss compensation and medical benefits. It found that the
January 16, 2012 follow-up report of Dr. Johnson was not well rationalized.
In an August 27, 2012 note, Dr. Johnson discussed the right shoulder surgeries he
performed on May 3, 2006 and December 18, 2007. He stated that both of these surgical
procedures involved removal of damaged tissue which could not be replaced. Dr. Johnson
stated, “Given that fact, high-demand activities on the shoulder with respect to pulling and
lifting, especially overhead, may be poorly tolerated and these functional limitations would be
permanent.”
In a February 1, 2013 decision, OWCP denied modification of its July 22, 2012 decision,
noting that it had properly terminated appellant’s wage-loss compensation and medical benefits
effective March 16, 2012 and that she had not shown that she had work-related residuals after
that date.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.4 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.6
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”7
ANALYSIS
OWCP accepted that on August 4, 2005 appellant sustained rotator cuff tendinitis and a
partial rotator cuff tear of her right shoulder due to lifting mail out of a container. On May 3,
2006 Dr. Johnson, an attending Board-certified orthopedic surgeon, performed right shoulder
surgery, including an arthroscopy, subacromial decompression with bursectomy and slight
debridement and debridement of rotator cuff tendon. On December 18, 2007 he performed
additional right shoulder surgery, including arthroscopy, debridement of rotator interval, revision
subacromial decompression/bursectomy and distal clavicle excision. These procedures were
authorized by OWCP.

4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

5 U.S.C. § 8123(a).

4

OWCP terminated appellant’s wage-loss compensation and medical
March 16, 2012 on the grounds that she had no residuals of her October 24,
after that date. It found that the weight of the medical evidence regarding
related residuals rested with the December 5, 2011 opinion of Dr. Sultan,
orthopedic surgeon serving as an OWCP referral physician.

benefits effective
2005 work injury
continuing worka Board-certified

The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 16, 2012. There is a conflict in
medical opinion evidence regarding the residuals of appellant’s October 24, 2005 work injury.
In a December 5, 2011 report, Dr. Sultan stated that, on range of motion testing of
appellant’s right shoulder, right shoulder abduction and forward elevation was at 175 degrees
(normal being 170 to 180 degrees), internal rotation was complete and external rotation was to
45 degrees (normal 40 to 50 degrees). Adduction was to 45 degrees (normal 45 to 50 degrees)
and posterior extension was to 40 degrees (normal 40 to 45 degrees). Dr. Sultan indicated that
appellant complained of right shoulder pain at the endpoint of motion testing, but noted that he
detected no reactionary muscle spasm or any resistance to range of motion testing. He stated that
there were no objective positive examination findings with respect to her right shoulder and that
the examination did not confirm that she was suffering from any disabling residuals of the
accepted conditions. Dr. Sultan indicated that there were no physical limitations on appellant’s
work as a letter carrier with respect to her October 24, 2005 work injury and noted that she did
not require any further treatment for her right shoulder condition.
Dr. Johnson, the physician who performed the authorized right shoulder surgeries of
May 3, 2006 and December 18, 2007, stated in a January 16, 2012 report that appellant had
continuing limitations and disability due to these work-related surgeries. On examination, on
January 16, 2012 appellant experienced a sharp catching sensation and pain when she rotated her
right arm outwardly. Dr. Johnson indicated that forward elevation of her right shoulder was to
160 to 170 degrees, versus full motion on the left and that appellant had discomfort at the end
range of forward elevation and internal rotation. He diagnosed right shoulder impingement, mild
right shoulder posterior capsular tightness, proximal biceps tendinitis/tendinosis and status
arthscopic surgery times two. Dr. Johnson discussed appellant’s May 3, 2006 and December 18,
2007 surgeries and stated, “[Appellant] had partial improvement with these operations but was
left with end-range loss of motion to forward elevation and internal rotation and has had
continued subjective complaints of pain.”8
The Board finds a conflict in medical opinion between Dr. Sultan, the second opinion
physician and Dr. Johnson, the treating physician, as to appellant’s residuals due to her
October 24, 2005 work injury. Therefore, OWCP did not meet its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits effective March 16, 2012.

8

Appellant later submitted January 16 and August 27, 2012 documents in which Dr. Johnson provided a similar
opinion on appellant’s continuing work-related residuals.

5

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 16, 2012.9
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 10, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

In view of the Board’s disposition of the first issue, the second issue is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 20-0531
Issued: May 7, 2021

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 January 10, 2020 appellant filed a timely appeal from a December 13, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 13, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On June 17, 2019 appellant, then a 64-year-old Director of Workers’ Compensation, filed
an occupational disease claim (Form CA-2) alleging that his major depression, post-traumatic
stress disorder, and anxiety were caused and/or aggravated by factors of his employment. He
alleged that K.C., his manager, created a toxic, hostile work environment, and arbitrarily demoted
him on February 5, 2019. Appellant noted that he first became aware of his condition on
February 6, 2019 and first realized its relation to his federal employment on March 27, 2019. He
worked intermittently from March 12, 2019 forward.
In March 10 and May 13, 2019 employee disclosure forms and in June 5 and July 15, 2019
letters, appellant indicated that he was filing a Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act) reprisal action against K.C. He
indicated that K.C. had retaliated against him since February 5, 2019, when he was tangentially
named as a potential witness against K.C. in a No FEAR Act case brought by B.S., a coworker.
Appellant explained that the No FEAR Act complaints brought by B.S. were cited as evidence in
her OWCP claim. He alleged that K.C. had wrongly, and without due process, demoted him and
removed his supervisory authority and title, which he had held for over 10 years. Appellant alleged
that this had a chilling effect on his ability to provide testimony and information for the Office of
Special Counsel (OSC) and OWCP claims brought by B.S. He indicated that D.F., K.C.’s
supervisor, stated that he was still a supervisor over the workers’ compensation office and that
K.C. had overstepped his authority. During this time, appellant noted that his father was in hospice
care and since passed away. He alleged that on March 8, 2019 at 3:47 p.m. he was subjected to an
additional act of retaliation and intimidation when K.C. told him that he would no longer be in a
supervisory position. Appellant indicated that he was shocked and alleged that this was an adverse
action associated with his whistleblower-protected cooperation. He indicated that he sought urgent
medical care after this matter. Appellant indicated that the retaliation and intimidation continued
with no intervention and that he was afraid to talk to the OSC or anyone else related to this matter.
He further alleged, in his June 5 and July 15, 2019 letters, that T.B., Acting Executive Director of
the Office of Human Capital Management (OHCM), and her staff, further perpetuated the cover
up of his demotion by stonewalling his numerous efforts to informally resolve the matter and
failing to investigate and make a ruling on the matter. Appellant alleged that T.B. rewrote the
OHCM Organizational Chart to demote him and thereafter ignored, circumvented, and pigeonholed him. He also alleged that collusion by K.C. and P.A. resulted in his removal as a supervisor
and humiliation in front of his peers. Appellant further alleged that K.C. and P.A. deliberately
committed Health Insurance Portability and Accountability Act and Privacy Act violations by
broadcasting his protected disability to his staff and had participated in the falsification/destruction
of official federal records.
OWCP received: one page of a position description which listed appellant as Director of
Workers’ Compensation; a March 1, 2019 Fellow Recertification Approval; a May 10, 2019 letter
from A.B., Medical Center Director; a May 2019 certificate of appreciation; copies of appellant’s

2

WebTA timesheet from February 5, 2019; a September 12, 2017 organizational flow chart of
Office of the Chief Human Capital Officer; material from B.S.’ whistleblower case along with a
comment from B.S. that appellant had been assisting her with her case and had become a target
and subjected to retaliation; a copy of a news article; and a copy of appellant’s Equal Employment
Opportunity (EEO) complaints against K.C.
A March 27, 2019 letter from Ophelia Opoku-Acheampong, LGSW, a licensed graduate
social worker, indicated that appellant had been receiving treatment from a hospital intensive
outpatient program (IOP) since March 22, 2019 and was scheduled to attend treatment nine hours
a week for four weeks.
In a May 20, 2019 letter, Dr. Richard Mullin, a Board-certified psychiatrist, indicated that
appellant has been his patient since March 2019. He noted that appellant reported that he had been
dealing with a lot of stress at work which he described as a hostile work environment. Dr. Mullin
diagnosed major depressive disorder, recurrent, and moderate, since at least 1997. He noted that
appellant received treatment through the IOP program from March 21 through April 18, 2019.
In an August 13, 2019 development letter, OWCP advised appellant that the evidence of
record was insufficient to establish his claim. It requested that he submit additional factual and
medical evidence in support of his claim. OWCP provided a questionnaire for appellant to
complete. It also noted that the medical evidence did not substantiate that the diagnosis of major
depressive disorder was caused or aggravated by employment factors and requested a narrative
medical report from an attending psychiatrist or clinical psychologist. Appellant was afforded 30
days to provide the requested information. By separate development letter of even date, OWCP
also requested that the employing establishment provide comments from a knowledgeable
supervisor regarding the accuracy of appellant’s statement relative to this claim. The employing
establishment was also afforded 30 days to respond.
On August 27, 2019 appellant responded to OWCP’s questionnaire. He submitted:
performance appraisals of other individuals; a December 15, 2017 recruitment request form; a job
analysis worksheet for tasks of a workers’ compensation program analyst; position description of
program analyst; job analysis worksheet for competencies; an obituary notice of his father, an
August 26, 2019 letter from Dr. Mullin, a stress/diathesis model of depression, an October 1, 2018
letter from the employing establishment’s Associate Deputy Assistant Secretary for Budget; a
June 4, 2019 letter from appellant’s EEO counselor, a list of role and responsibilities of the EEO
counselor, appellant’s notice of rights and responsibilities for EEO claim signed June 4, 2019;
EEO settlement goals; a copy of appellant’s claim dated July 9, 2019; appellant’s June 7, 2019
complaint of possible prohibited personnel practice or other prohibited activity; copies of
appellant’s time and attendance and leave requests forms; an alternative dispute resolution list of
goals for settlement; an August 1, 2019 witness statement from B.S.; appellant’s notes from a role
clarity meeting with B.W. on February 11, 2016; August 2019 e-mails regarding appellant’s
position description; job analysis worksheet for tasks; requests for personnel action; and a
September 4, 2019 letter from the employing establishment.
By decision dated December 13, 2019, OWCP found that appellant had established that he
was a federal civilian employee who filed a timely claim and that “the evidence supports that an
incident [appellant] claimed occurred as described.” It denied his emotional condition claim,

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however, finding that the medical component of fact of injury had not been met as there was no
medical evidence from a psychiatrist or licensed psychologist diagnosing an emotional condition.
OWCP further found that, even if medical documentation containing a diagnosis was submitted,
there were no accepted event(s) that were factors of employment. It noted that accepted events
that were not factors of employment were: appellant’s allegation K.C. created a toxic work
environment on February 5, 2019 when he was demoted, and K.C. has retailed against appellant
since he was tangentially named as a witness against K.C. in B.S.’ whistleblower case.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.4
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) factual evidence identifying employment factors or incidents alleged to have
caused or contributed to his or her condition; (2) medical evidence establishing that he or she has
an emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing
that the identified compensable employment factors are causally related to his or her emotional
condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.7
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.8 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely

3

Supra note 1.

4

M.H., Docket No. 19-0930 (issued June 17, 2020); Gary J. Watling, 52 ECAB 357 (2001).

5

R.B., Docket No. 19-0343 (issued February 14, 2020).

6

28 ECAB 125 (1976).

7

M.A., Docket No. 19-1017 (issued December 4, 2019); Robert W. Johns, 51 ECAB 137 (1999).

8

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838 (1987).

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affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.10
ANALYSIS
The Board finds that the case is not in posture for decision.
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.11 Its regulations at 20 C.F.R. § 10.126
provide that the decision of the Director of OWCP shall contain findings of fact and a statement
of reasons.12 Additionally, OWCP’s procedures provide that the reasoning behind OWCP’s
evaluation should be clear enough for the reader to understand the precise defect of the claim and
the kind of evidence which would overcome the defect.13
In its December 13, 2019 decision, OWCP did not sufficiently explain whether any
accepted factors of employment were factually established or whether they constituted
compensable factors of employment. It summarily denied appellant’s emotional condition claim
and did not discharge its responsibility to set forth findings of fact and a clear statement of reasons
explaining its disposition so that appellant could understand the basis for the decision, as well as
the precise defect and the evidence needed to overcome the denial of his emotional condition
claim.14 OWCP should have explained whether the alleged employment events are factually
established and whether they constitute compensable employment factors.15
The case must therefore be remanded to OWCP for OWCP to review the evidence of record
and make findings of fact and provide a statement of reasons for its decision, pursuant to the

9

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470 (1993).

10

See O.R., Docket No. 20-0743 (issued January 28, 2021); D.M., Docket No. 20-0314 (issued June 30, 2020); I.J.,
59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).
11

5 U.S.C. § 8124(a).

12

20 C.F.R. § 10.126.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

14
See C.A., Docket No. 20-1297 (issued March 18, 2021); J.S., Docket No. 18-0513 (issued March 1, 2019); K.J.,
Docket No. 14-1874 (issued February 26, 2015). See also J.J., Docket No. 11-1958 (issued June 27, 2012).

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.” See A.R., Docket No. 11-1949 (issued April 16, 2012).
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standards set forth in section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126. After any further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: May 7, 2021
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

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

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

Docket No. 17-0996
Issued: August 16, 2017

Case Submitted on the Record

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

JURISDICTION
On April 6, 2017 appellant, through counsel, filed a timely appeal from a February 3,
2017 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.
ISSUE
The issue is whether appellant has established an injury causally related to an accepted
November 5, 2014 employment incident.
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.

FACTUAL HISTORY
On February 3, 2015 appellant, then a 61-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 5, 2014 he sustained a right shoulder injury when
he picked up a tray of mail and felt a pop in his shoulder. His supervisor noted on the reverse
side of the claim form that appellant had not stopped work.
By letter dated February 5, 2015, an employing establishment customer service
supervisor wrote that the employing establishment did not contest that an incident occurred on
November 5, 2014. The supervisor indicated that appellant had continued to case mail, even
though an employing establishment manager had advised him not to do any overhead casing.
In a report dated February 6, 2015, Dr. Daniel Rueff, a Board-certified orthopedic
surgeon, indicated that appellant was treated for right shoulder pain.3 He provided a history that
in November appellant had lifted a box and felt an acute pop in his right shoulder. Dr. Rueff
noted that appellant had a history of a left shoulder rotator cuff repair.4 He indicated that
appellant had experienced biceps pain, which had improved, but appellant still had right shoulder
pain. Dr. Rueff reported that, for the right shoulder, appellant had full range of motion and
strength, with x-rays showing no fracture or dislocation, and moderate acromioclavicular (AC)
joint arthritis. He diagnosed right shoulder long head biceps rupture, and right shoulder rotator
cuff tendinitis. Dr. Rueff wrote that appellant seemed to be having little trouble with the biceps
rupture, but the rotator cuff tendinitis was a bigger issue.
In a March 16, 2015 report, Dr. Rueff related that appellant had bilateral shoulder pain.
He provided examination results. Dr. Rueff wrote that, due to his shoulder problems, appellant
likely needed work restrictions and therefore a functional capacity evaluation would be
scheduled. In an April 27, 2015 report, Dr. Rueff provided results on examination for both
shoulders. He indicated that appellant would likely need permanent work restrictions.
The record contains a magnetic resonance imaging (MRI) scan report dated
January 25, 2016. Dr. John Rothpletz, a radiologist, diagnosed a right shoulder rotator cuff tear.
The report also found the long head biceps tendon and the glenoid labrum were torn. By report
dated January 29, 2016, Dr. Rueff indicated that appellant wanted to proceed with right shoulder
surgery.5 OWCP also received physical therapy notes.
On February 25, 2016 appellant submitted a recurrence of disability claim (Form CA-2a).
On the claim form, he reported the date of recurrence as September 8, 2105, and he stopped work
on September 15, 2015. Appellant wrote that his pain increased during the summer of 2015 and
he could not continue working.

3

The report indicated that Dr. Rueff was the medical provider, but the report did not contain a signature.

4

Appellant had a prior claim for a left shoulder injury on November 1, 2013 under OWCP File No. xxxxxx874.

5

In a May 31, 2016 report, Dr. Rueff indicated that appellant was unsure whether he wanted to proceed with
surgery.

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By letter dated March 7, 2016, OWCP indicated that the initial claim appeared to be a
minor injury, and therefore no decision on the merits of the claim had been issued. It afforded
appellant 30 days to submit additional evidence in support of his claim.
Appellant submitted a report dated March 21, 2016 from Dr. Rueff. The attending
physician wrote that appellant injured his right shoulder on November 5, 2014 when he lifted a
heavy tray of mail. Dr. Rueff reported that appellant had pain over his biceps as well as his
shoulder. He indicated that appellant received physical therapy and a cortisone injection, but his
pain persisted. The results of the January 25, 2016 MRI scan were noted. Dr. Rueff concluded,
“The patient did note an acute injury at work in which his symptoms began. I do think that there
is a high likelihood of probability that his rotator cuff tear was due to his work injury.”
By decision dated April 11, 2016, OWCP denied appellant’s claim for compensation. It
accepted that the incident occurred as alleged, but found that the medical evidence was
insufficient to establish the claim as he had not established causal relationship between the
diagnosed condition and the accepted employment incident.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on April 22, 2016. A hearing was held on December 14, 2016. Appellant related that he
underwent left shoulder surgery in January 2015.
By decision dated February 3, 2017, the hearing representative affirmed the April 11,
2016 OWCP decision. The hearing representative found that the medical evidence of record was
insufficient to establish the claim. As to the February 6, 2015 report from Dr. Rueff, the hearing
representative considered the content of the report, but found that unsigned medical reports
cannot be considered as probative medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim including the fact that individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.7 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or on
occupational disease.8
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
6

Supra note 2.

7

Joe D. Cameron, 41 ECAB 153 (1989), Elaine Pendleton, 40 ECAB 1143 (1989).

8

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

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actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.9
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence that is based on a
complete factual and medical background, of reasonable medical certainty and supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10 Neither
the fact that appellant’s condition became apparent during a period of employment nor, her belief
that the condition was caused by her employment is sufficient to establish causal relationship.11
ANALYSIS
Appellant filed a traumatic injury claim alleging that he was injured on November 5,
2014 when he lifted a tray of mail and felt a pop in his right shoulder. OWCP has accepted that
the incident occurred as alleged. The issue is whether the medical evidence is sufficient to
establish a diagnosed condition casually related to the November 5, 2014 employment incident.
The Board has reviewed the medical evidence of record and finds that it is insufficient to
meet appellant’s burden of proof.
In the February 6, 2015 report, Dr. Rueff diagnosed a biceps rupture and right rotator cuff
tendinitis.12 He did not discuss diagnostic testing, other than to note x-rays showing some AC
joint arthritis. Dr. Rueff did not provide a rationalized medical opinion on causal relationship
with the November 5, 2014 employment incident. He provided only a brief description of the
incident, noting lifting of a box and feeling pain. There was no discussion of the mechanism of
injury or other explanation as to the relationship between a diagnosed condition and the
November 5, 2014 employment incident.13 A medical opinion should reflect a correct history
and offer a medically sound explanation by the physician of how the specific employment
incident physiologically caused or aggravated the diagnosed conditions.14 Dr. Rueff referred to
9

See John J. Carlone, 41 ECAB 354, 357 (1989).

10

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

11

R.B., Docket No. 16-0885 (issued November 25, 2016).

12

Dr. Rueff treated appellant on February 6, 2015. The hearing representative noted that the report dated
February 6, 2015 was not signed by Dr. Rueff, but this was not a situation of a report lacking proper identification,
such as unsigned treatment notes where it is unclear whether a physician wrote or reviewed the notes. The report
identified Dr. Rueff as the provider, and in his March 21, 2016 report, he confirmed that he initially treated appellant
on February 6, 2015. See G.C., Docket No. 17-0675 (issued June 15, 2017).
13

E.R., Docket No. 16-1634 (issued May 25, 2017); T.H., 59 ECAB 388 (2008).

14

See T.G., Docket No. 14-0751 (issued October 20, 2014).

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the need for permanent work restrictions in an April 27, 2015 report. However, he referred to the
left shoulder as well as the right shoulder, and he did not provide an opinion on causal
relationship between a right shoulder condition and the November 5, 2014 incident.
In a March 21, 2016 report, Dr. Rueff opined that there was high likelihood the rotator
cuff tear was due to a work injury, but this opinion is not supported with medical rationale. The
explanation noted was that appellant had an acute injury in which his symptoms began. The
occurrence of symptoms at work does not in itself establish a causal relationship with
employment.15 Dr. Rueff did not provide a well-rationalized report that explained causal
relationship with respect to the findings on a January 25, 2016 MRI scan and the November 5,
2014 employment incident. To be of probative value the medical opinion must be based on a
complete history and must provide a rationalized explanation as to how the specific work
incident contributed to a diagnosed condition.16
The diagnoses of right rotator cuff tear and long head biceps tear were noted in an MRI
scan report by Dr. Rothpletz. Dr. Rothpletz however offered no opinion regarding the cause of
the diagnosed conditions. The Board has held that diagnostic testing, is of limited probative
value as it fails to provide a physician’s opinion on the causal relationship between appellant’s
work incident and his diagnosed condition. For this reason, this evidence is insufficient to meet
appellant’s burden of proof.17
On appeal, counsel asserts that there is sufficient evidence to establish the claim. For the
reasons discussed above, 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 established an injury causally related to the
accepted November 5, 2014 employment incident.

15

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

16

Supra note 10.

17

See G.C., Docket 17-0675 (issued June 15, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2017 is affirmed.
Issued: August 16, 2017
Washington, DC

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

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

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

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