United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Providence, NJ, Employer
__________________________________________

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

Docket No. 06-2110
Issued: March 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 18, 2006 appellant, through counsel, filed a timely appeal of an April 6,
2006 merit decision of an Office of Workers’ Compensation Programs’ hearing representative
finding a 12 percent impairment of the left lower extremity for which he received a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this schedule award case.
ISSUE
The issue is whether appellant has more than a 12 percent impairment to the left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On December 28, 1998 appellant, then a 30-year-old mail carrier, filed a traumatic injury
claim. He alleged that he felt a sharp pain and swelling in his left knee on that date while
walking in the performance of duty. On February 10, 1999 Dr. Stuart J. Fischer, a Boardcertified orthopedic surgeon, performed an arthroscopic debridement on appellant’s left knee

which revealed a partial tear of the anterior cruciate ligament (ACL). He was released to
limited-duty work on February 22, 1999 and later to full-duty work on April 16, 1999. On
March 6, 1999 the Office accepted appellant’s claim for left knee sprain. The Office also
accepted his claim for a partial tear of the ACL.
By letter dated October 29, 2003, appellant’s attorney submitted an August 18, 2003
medical report from Dr. David Weiss, an osteopath, in support of his claim for a schedule award.
Dr. Weiss provided a history of appellant’s December 28, 1998 employment injury, medical
treatment and family, social and employment background. He noted appellant’s complaints of
intermittent left knee pain, stiffness and instability. On physical examination, Dr. Weiss reported
well-healed portal arthroscopy scars and mild infrapatellar effusion. He also reported flexion
and extension range of motion of 0-140/140 degrees. Patellofemoral compression produced mild
crepitance but no pain at 30 degrees. Patellar apprehension and inhibition signs were negative.
There was tenderness along the medial joint line. Dr. Weiss found prominence of the tibial
tubercle which was tender on palpation from a fracture of the tibial plateau as a child. Valgus
and varus stress testing produced firm end points. The Lachman’s and draw signs were both
negative. Manual muscle strength testing of the quadriceps and gastrocnemius was graded as 5/5
each. Quadriceps circumferencial measurements at 10 centimeters above the patella were 54.5
centimeters on the right versus 53 centimeters on the left. The gastrocnemius circumferencial
measurements were 40.5 centimeters on the left versus 41.5 centimeters on the right. Dr. Weiss
reviewed appellant’s medical records. He diagnosed post-traumatic internal derangement to the
left knee with a partial thickness ACL tear, status post arthroscopic surgery to the left knee with
debridement of the ACL tear and a history of fracture to the tibial tubercle of the left knee in
1979. Dr. Weiss opined that the December 28, 1998 employment injury caused appellant’s
subjective and objective findings. Utilizing the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides, 530, Table 17-6), he
determined that appellant had an 8 percent impairment for left thigh atrophy and an 8 percent
impairment for left calf atrophy, totaling a 15 percent impairment. Dr. Weiss further determined
that he had a three percent impairment for pain in the left knee (A.M.A., Guides, 574, Figure 181). He combined the impairment rating for atrophy with the impairment rating for pain to
determine that appellant had an 18 percent impairment of the left lower extremity. Dr. Weiss
concluded that appellant reached maximum medical improvement on August 18, 2003.
On December 3, 2003 an Office medical adviser reviewed Dr. Weiss’ August 18, 2003
report. He opined that appellant reached maximum medical improvement on August 18, 2003.
The Office medical adviser determined that appellant had a six percent impairment resulting
from 1.5 centimeters of left thigh atrophy and a 3 percent impairment resulting from 1 centimeter
of left calf atrophy (A.M.A., Guides 530, Table 17-6). He added the impairments due to atrophy
to find a total impairment of nine percent. The medical adviser then added a 3 percent
impairment of the left knee due to pain (A.M.A., Guides, 574, Figure 18-1) to the 9 percent
impairment due to atrophy and found a total left lower extremity impairment of 12 percent. He
stated that Dr. Weiss did not prorate the atrophy according to Table 17-6 on page 530 of the
A.M.A., Guides. The Office medical adviser stated that the table had a range and Dr. Weiss
picked the upper limits of the range for his thigh and calf impairments.
By decision dated December 16, 2003, the Office granted appellant a schedule award for
a 12 percent impairment of the left lower extremity based on the Office medical adviser’s

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December 3, 2003 opinion. In a December 19, 2003 letter, appellant, through counsel, requested
an oral hearing before an Office hearing representative.
By decision dated December 17, 2004, an Office hearing representative affirmed the
December 16, 2003 decision. He found that the Office medical adviser properly utilized the
A.M.A., Guides in determining that appellant had a 12 percent impairment of the left lower
extremity. On May 19, 2005 appellant, through counsel, appealed to the Board.
By order dated December 5, 2005,1 the Board remanded the case to the Office for
reconstruction and proper assemblage of the case record.
On April 6, 2006 the hearing representative reissued his decision finding that appellant
had a 12 percent impairment of the left lower extremity based on the Office medical adviser’s
December 3, 2003 opinion.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 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 of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5
ANALYSIS
The Office accepted that appellant sustained a left knee sprain and a partial tear of the
ACL of the left knee due to the December 28, 1998 employment injury. Appellant filed a claim
for a schedule award on May 22, 2003 and submitted an impairment evaluation dated August 18,
2003 from Dr. Weiss in support of his request. Dr. Weiss found full range of motion from 0-140
degrees of the left knee. He reported patellofemoral compression which produced mild
crepitance but no pain at 30 degrees. Dr. Weiss further reported tenderness along the medial
joint line and tenderness on palpation of the tibial tubercle from a childhood fracture of the tibial
plateau. He measured appellant’s quadriceps circumference as 54.5 centimeters on the right and
53 centimeters on the left and his gastrocnemius circumference as 40.5 centimeters on the left
and 41.5 centimeters on the right. Utilizing the A.M.A., Guides 530, Table 17-6, Dr. Weiss
1

Docket No. 05-1285 (issued December 5, 2005).

2

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

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

5

20 C.F.R. § 10.404.

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determined that appellant had an eight percent impairment due to left thigh atrophy and an eight
percent impairment due to left calf atrophy. He combined these ratings to determine that
appellant had a 15 percent impairment. Dr. Weiss further determined that appellant had a three
percent impairment due to pain in the left knee (A.M.A., Guides 574, Figure 18-1). He
combined the impairment rating for atrophy of the thigh and calf with the impairment rating for
pain, for a total left lower extremity impairment of 18 percent. Dr. Weiss opined that the date of
maximum medical improvement was August 18, 2003.
An Office medical adviser applied the tables and pages of the A.M.A., Guides to
Dr. Weiss’ findings. The medical adviser found a six percent impairment due to 1.5 centimeters
of left thigh atrophy and a 3 percent impairment due to 1 centimeter of left calf atrophy.
According to Table 17-6 on page 530 of the A.M.A., Guides, a 1 to 1.9 centimeter difference in
calf and thigh circumference represents a mild impairment within the range of a 3 to 8 percent
impairment of the lower extremity. As appellant had 1.5 centimeters of atrophy of the thigh, the
Office medical adviser properly assigned him an impairment rating that was in the middle of the
range from 1 to 1.9 or 6 percent. Further, as he had one centimeter of atrophy of the calf, the
Office medical adviser properly assigned him the low end of the impairment range or three
percent.6 The Office medical adviser added the six percent and three percent impairments due to
thigh and calf atrophy to find a nine percent impairment. He disagreed with Dr. Weiss’ thigh
and calf atrophy impairment ratings, stating that he did not prorate the atrophy according to
Table 17-6 on page 530 of the A.M.A., Guides, rather, he picked the upper limits of the range.
The Office medical adviser, however, concurred with Dr. Weiss’ finding that appellant had a 3
percent impairment of the left knee due to pain (A.M.A., Guides 574, Figure 18-1), to find a total
left lower extremity impairment of 12 percent. He indicated that the date of maximum medical
improvement was August 18, 2003.
The Board notes that both Dr. Weiss and the Office medical adviser failed to explain the
three percent impairment rating for pain under Chapter 18. Section 18.3b, page 571 of the
A.M.A., Guides, specifically states that examiners should not use Chapter 18 to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ
rating systems found in the other chapters.7 Moreover, neither physician addressed the crossusage chart at Table 17-2, which notes that atrophy and pain impairments may not be combined.8
The Office medical adviser properly applied the A.M.A., Guides and provided rationale
in rating a nine percent impairment of the left lower extremity under Chapter 17 for atrophy.
The Board finds that the Office medical adviser’s opinion represents the weight of the medical
evidence of record and, excluding the three percent impairment for pain, establishes that
appellant has no more than a nine percent impairment of the left lower extremity.

6

See, e.g., Lorraine McGowan, Docket No. 05-1308 (issued January 10, 2006).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); Philip A. Norulak, 55 ECAB 690 (2004).
8

See A.M.A., Guides 526, Table 17-2; see also Lorraine McGowan, supra note 6.

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On appeal, appellant’s attorney argues that a conflict in medical opinion exists between
Dr. Weiss and the Office medical adviser with regard to the extent and degree of impairment to
the left lower extremity. As discussed above, however, the Office medical adviser properly
determined that 1.5 centimeters of the thigh and 1.0 centimeter of the calf atrophy equaled a 6
percent and 3 percent impairment, respectively, rather than the 8 percent respective impairment
found by Dr. Weiss.9
CONCLUSION
The Board finds that appellant has no more than a nine percent impairment of the left
lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2006 decision of the Office of
Workers’ Compensation Programs dated May 22, 2006 is affirmed, as modified.
Issued: March 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

A.M.A., Guides 530, Table 17-6.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., claiming as widow of B.C., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Huachuca, AZ, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1419
Issued: October 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 28, 2013 appellant, through her attorney, timely filed an appeal of a March 14,
2013 nonmerit decision denying her request for reconsideration of the merits of her claim. As
more than 180 days elapsed from the date of the last merit decision of February 15, 2012 to the
filing of the current appeal on May 28, 2013, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction over the
nonmerits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that OWCP refused to review the case on the merits despite
the new legal argument advancing a point of law not previously considered, specifically, that

1

5 U.S.C. § 8101 et seq.

OWCP’s medical adviser created a conflict in opinion with the employee’s autopsy report and
the case should have been sent to a referee physician under 5 U.S.C. § 8123.
FACTUAL HISTORY
The employee, a police officer, died on August 18, 2011 at the age of 29 after he
collapsed while performing a physical agility test and was taken to the hospital. The death
certificate listed the natural cause of death as acute gastrointestinal bleeding. Appellant, the
employee’s wife, filed a claim for survivor’s benefits (Form CA-5) on August 19, 2011 alleging
that the physical agility test caused the employee’s death.
By decision dated November 7, 2011, OWCP denied the claim finding that the evidence
of record was not sufficient to establish that the employee’s death was causally related to factors
of his federal employment.
On November 14, 2011 appellant, through her attorney, requested reconsideration. She
submitted hospital records dated August 18, 2011 and an August 19, 2011 autopsy report from
Dr. Guery Flores, a Board-certified forensic pathologist, who opined that the employee died
suddenly due to cardiac arrest secondary to acute gastrointestinal bleeding. Dr. Flores stated that
the employee was “obese and was doing physical training and was also medicated with
phentermine, factors which may have been contributory to his death.”
In a November 14, 2011 report, Dr. Ellen Pickey, an OWCP medical adviser, reviewed
the medical evidence of record, along with a statement of accepted facts. She found no basis for
a causal relationship between the employee’s death and factors of his federal employment.
On December 27, 2011 Dr. Raye Bellinger, a Board-certified cardiologist, indicated that
according to the autopsy, the employee died of acute upper gastrointestinal bleeding. He opined
that “the physical agility test was incidental to [the employee’s] upper [gastrointestinal] GI
bleed.”
By decision dated February 15, 2012, OWCP denied modification of the November 7,
2011 decision.
On February 5, 2013 appellant, through counsel, requested reconsideration. Counsel
argued that Dr. Pickey created a conflict in opinion with the employee’s autopsy report and the
case should have been referred to an impartial physician under 5 U.S.C. § 8123.
By decision dated March 14, 2013, OWCP denied appellant’s request for reconsideration
of the merits, finding that she did not submit pertinent new and relevant evidence or show that
OWCP erroneously applied or interpreted a point of law not previously considered. It
acknowledged the arguments raised to support the request but noted that Dr. Pickey’s report and
autopsy report were previously reviewed. The weight of the medical evidence rested with
Dr. Pickey and thus an impartial medical examination was not necessary.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of OWCP’s decision as a
matter of right; it vests OWCP with discretionary authority to determine whether it will review
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an award for or against compensation.2 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).3
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record7 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8
ANALYSIS
The Board finds that appellant did not submit pertinent new and relevant evidence or
show that OWCP erroneously applied or interpreted a point of law not previously considered. In
support of her February 5, 2013 reconsideration request, appellant submitted a legal brief from
counsel, who argued that the opinion of Dr. Pickey created a conflict with the employee’s
autopsy report. Therefore, the case should have been sent to a referee physician under 5 U.S.C.
§ 8123. The Board finds that the submission of this argument did not require reopening
appellant’s case for merit review. In its March 14, 2013 decision, OWCP acknowledged the
arguments supporting the request and noted that it had previously reviewed OWCP’s medical
adviser’s report and the autopsy report. It explained that an independent medical examination
was not necessary as there was no conflict in the medical opinion based on the evidence of
record considered in its February 15, 2012 decision. The Board finds that appellant has not
advanced a relevant legal argument not previously considered by OWCP.
Appellant has neither submitted relevant and pertinent new evidence nor shown that
OWCP erroneously applied or interpreted a point of law not previously considered nor advanced
2

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

See Annette Louise, 54 ECAB 783, 789-90 (2003).

4

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

See A.L., supra note 4. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

8

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

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a relevant legal argument not previously considered. The Board finds that she did not meet the
regulatory requirements and is not entitled to further merit review.9 Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, counsel contends that OWCP refused to review the case on the merits despite
the new legal argument advancing a point of law not previously considered, specifically, that
Dr. Pickey created a conflict with the employee’s autopsy report and, therefore, the case should
have been sent to a referee physician under 5 U.S.C. § 8123. The Board finds that this is the
same argument made before OWCP which was previously addressed. For the reasons stated
above, the Board finds that OWCP properly, denied reconsideration.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9

See L.H., 59 ECAB 253 (2007).

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

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

Docket No. 08-1953
Issued: January 28, 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 July 7, 2008 appellant filed a timely appeal from an April 10, 2008 merit decision of
the Office of Workers’ Compensation Programs denying her traumatic injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that she sustained an injury in the
performance of duty on October 26, 2007 as alleged.
FACTUAL HISTORY
On October 26, 2007 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim alleging that on that date she sustained an injury to her lower back when she was involved
in a motor vehicle accident during the performance of her federal duties. She indicated that she
was traveling northbound when the vehicle in the right northbound lane made an illegal U-turn.
Appellant was seen at St. Lukes Emergency Department, where she was diagnosed with head
trauma and discharged the same day. She did not return to work.

On October 31, 2007 the Office requested additional factual and medical information
concerning appellant’s claim. No further evidence was submitted.
By decision dated December 7, 2007, the Office denied appellant’s claim on the grounds
that fact of injury was not established.
On January 25, 2008 appellant requested reconsideration and submitted an October 26,
2007 police report along with her personal statement of December 19, 2007, which indicated that
the motor vehicle accident occurred on October 26, 2007 at approximately 3:00 p.m. on
northbound Riverside Drive when the vehicle in the right lane cut across her in an attempt to
make an illegal U-turn at 148th street. In her statement, appellant indicated that she was driving
a postal truck on a collections route along Riverside Drive when the motor vehicle accident
occurred. She further stated that her neck and lower back were injured as a result of the motor
vehicle accident.
In a November 2, 2007 report, Dr. Stephanie Bayner, a physiatrist, noted that on
October 26, 2007 appellant was driving a post office vehicle and had a collision with another car.
She noted appellant was receiving physical therapy, acupuncture and chiropractic treatment with
improvement. An impression of rule out cervical radiculopathy/disc bulge/herniated disc;
cervicalgia; thoracalgia; and rule out lumbosacral radiculopathy/disc bulge/herniated disc was
provided. In a November 9, 2007 report, Dr. Bayner advised that appellant was totally disabled
due to her injuries.
In a December 3, 2007 report, Dr. Richard Birrer, a physiatrist, noted that appellant had
been involved in a work accident on October 26, 2007 and sustained injuries to her neck, mid
back and low back. He provided examination findings and diagnosed post-traumatic headache,
muscle spasm, possible lumbar disc bulging and possible lumbar disc herniation. Dr. Birrer
opined that appellant was totally disabled and that the October 26, 2007 injury was the cause of
appellant’s impairment and disability. In a November 5, 2007 prescription note, he prescribed
appellant a Liboderm patch.
In a December 21, 2007 medical report, Dr. Ihab Ibrahim, a physiatrist, noted that
appellant was involved in a work-related accident while driving a postal truck. He stated that she
sustained injuries to her head and back and has not worked since the accident. Dr. Ibrahim
diagnosed lumbosacral paraspinal muscle spasm and lumbar radiculopathy. He opined that the
October 26, 2007 injury resulted in appellant’s current impairment and disability.
In a January 25, 2008 medical report, Dr. Beth Massey, a family practitioner, noted
appellant was involved in a motor vehicle accident on October 26, 2007 while working for the
employing establishment. She advised that appellant sustained injuries to her neck and lower
back and noted magnetic resonance imaging (MRI) scan studies revealed disc herniations at
C3-4 and C4-5 and disc bulge at L5-S1. Dr. Massey opined that appellant was totally disabled
and had been since October 26, 2007.
In a February 11, 2008 report, Dr. Cyrus Vosough, a physiatrist, noted appellant was
involved in a work accident on October 26, 2007 and sustained injuries to her neck and low
back. He diagnosed myofascial pain syndrome, cervical disc herniation, lumbar disc bulging and

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lumbar radiculopathy. Dr. Vosough advised that appellant was totally disabled and opined that
the October 25, 2007 work injury caused her impairment and disability. In a January 14, 2008
report, he diagnosed limited truck mobility and muscle spasms at L3, L4 and L5.
Copies of November 12, 2007 sensory nerve conduction test of the bilateral upper
extremities, a December 17, 2007 MRI scan of the lumbar spine, and a December 17, 2007 MRI
scan of the cervical spine were received along with musculoskeletal testing performed on
October 31 and December 28, 2007. Also received were a series of physical therapy notes and
pain management surgical notes from November 2007 to March 2008, signed by a physical
therapist and a registered physician’s assistant.
By decision dated April 10, 2008, the Office modified its December 7, 2007 decision to
reflect that appellant had established that the employment incident occurred, but it denied the
claim on the grounds that appellant did not establish a causal relationship between a diagnosed
condition and the employment incident.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether fact of injury has been established.
Fact of injury consists of two components that must be considered in conjunction with one
another. The first component is whether the employee actually experienced the employment
incident that is alleged to have occurred. The second component of fact of injury is whether the
incident caused a personal injury, and, generally, this can be established only by medical
evidence.4
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.5 To be rationalized, the opinion must be based on a complete factual and medical
1

The record contains additionally medical evidence following the Office’s April 10, 2008 decision. The Board,
however, notes that it cannot consider this evidence for the first time on appeal as the Board’s review is limited to
the evidence in the case record at the time the Office made its final decision. 20 C.F.R. § 501.2(c).
2

5 U.S.C. §§ 8101-8193.

3

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Ellen L. Noble, 55 ECAB 530 (2004).

5

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

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background of the claimant,6 and must be one of reasonable medical certainty,7 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.
ANALYSIS
The Office has accepted that the October 26, 2007 motor vehicle accident occurred as
alleged. The issue to resolve is whether appellant has established a causal relationship between
the employment incident and a diagnosed condition. This issue must be resolved with
rationalized medical evidence.
Dr. Bayner’s November 2 and 9, 2007 reports failed to provide confirmation of any
diagnosis or an opinion as to the cause of her complaints and disability. Medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.8
Drs. Birrer and Vosough noted that appellant had been involved in a work accident on
October 26, 2007. However, there is no indication that either physician had an accurate factual
history of injury. It is well established that medical reports must be based on a complete and
accurate factual and medical background and that medical opinions based on an incomplete or
inaccurate history are of diminished probative value.9 Therefore the medical reports with an
inaccurate factual history have no probative value to establish causal relationship. Additionally
while both physicians opined the October 26, 2007 work injury resulted in appellant’s current
impairment and disability, their opinions carry little weight because no medical explanation of
how the accepted employment incident caused or aggravated the diagnosed conditions is
provided.10
Drs. Ibrahim and Massey noted a proper history of injury. Dr. Ibrahim diagnosed
lumbosacral paraspinal muscle spasm and lumbar radiculopathy. Dr. Massey diagnosed disc
herniations at C3-4 and C4-5 and disc bulge at L5-S1. While both physicians opined that the
diagnosed conditions and resultant disability were the result of the October 26, 2007 work
incident, neither physician offered a rationalized medical explanation of how the employment
event caused or aggravated the diagnosed conditions.11 Thus, these reports are insufficient to
establish appellant’s claim.

6

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

7

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

8

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

9

James R. Taylor, 56 ECAB 537 (2005).

10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).
11

Id.

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The remainder of the evidence in the record also fails to establish appellant’s claim. The
diagnostic and musculoskeletal testing along with Dr. Birrer’s November 5, 2007 prescription
note contained neither a diagnosis nor an explanation of the cause of appellant’s disability.
Additionally, while appellant also submitted physical therapy notes and pain management
surgical notes signed by a physical therapist and a registered physician’s assistant, it is well
established that physical therapists and registered physician’s assistant are not a physician as
defined under the Act. This material does not constitute probative medical evidence.12
Appellant expressed her belief that her alleged neck and back conditions resulted from
the October 26, 2007 employment incident. However, the Board has held that the mere fact that
a condition manifests itself during a period of employment does not raise an inference that there
is a causal relationship between the two.13 Neither the fact that the condition became apparent
during a period of employment, nor the belief that the condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.14 Causal
relationship must be substantiated by reasoned medical opinion evidence, which it is appellant’s
responsibility to submit.
Because appellant has not submitted adequate medical evidence, the Board finds that she
has not met her burden of proof to establish a causal relationship between her accepted
employment event and her diagnosed conditions.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on October 26, 2007 as alleged.

12

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of the Act provides
as follows: physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law. See Merton J. Sills, 39 ECAB
572, 575 (1988).
13

See Joe T. Williams, 44 ECAB 518, 521 (1993).

14

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Stroudsburg, PA, Employer
__________________________________________

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)
)
)

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

Docket No. 20-1325
Issued: May 5, 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 June 11, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Pursuant to the Board’s Rules of Procedure, an appeal is considered filed when received by the Clerk of the
Appellate Boards. 20 C.F.R. § 501.3(f). However, when the date of receipt would result in a loss of appeal rights,
the appeal will be considered to have been filed as of the date of the U.S. Postal Service postmark or other carriers
date markings. Id. at § 501.3(f)(1). The 180th day following OWCP’s December 18, 2019 decision was Monday,
June 15, 2020. Because using June 17, 2020, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is June 11, 2020, rendering the appeal timely filed. Id.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted employment incident.
FACTUAL HISTORY
On May 2, 2019 appellant, then a 33-year-old carrier, filed a notice of traumatic injury
claim (Form CA-1) alleging that on April 29, 2019 another vehicle struck her vehicle from behind,
in the performance of duty. She indicated that her “back felt sore and her right leg hurt.” On the
reverse side of the claim form the employing establishment controverted the claim, noting that
appellant waited four days to file a claim and had continued to work without apparent difficulty.5
In development letters dated May 6, 2019, OWCP requested additional factual and medical
evidence from appellant and the employing establishment. It advised appellant of the type of
factual and medical evidence needed and provided a questionnaire for her completion. OWCP
afforded both parties 30 days to respond.
OWCP subsequently received a May 3, 2019 a hospital emergency department report from
Dr. Marc Kolpon, an osteopath Board-certified in emergency medicine. Dr. Kolpon noted that
appellant was seen for right leg and lower back injuries. He explained that appellant had no
discomfort until two days following the motor vehicle accident. Dr. Kolpon related that appellant
experienced soreness in the mid-to-lower lumbar region and pain in the right knee because she
struck it on the dash during the accident. He noted that the accident occurred in a parking lot at an
unknown speed, appellant was wearing a seatbelt, and there was no airbag deployment.
Dr. Kolpon examined appellant and diagnosed musculoskeletal pain.
In a June 7, 2019 response to the questionnaire, appellant related that she made a right hand
turn when her vehicle was struck from behind. She indicated that she had sharp pain in her right
leg when it hit the steering wheel shaft and her back started hurting two days later. Along with the
completed questionnaire, appellant resubmitted May 3, 2019 medical records from Dr. Kolpon.

3

5 U.S.C. § 8101 et seq.

4
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
5
The record reflects that appellant had previously filed a traumatic injury claim (Form CA-1) on December 14,
2016 alleging that she sustained a right leg tear when she stepped into a hole while delivering mail. This claim was
assigned OWCP File No. xxxxxx097. OWCP initially denied the claim by decision dated January 25, 2017 and the
claim remains in denied status. Appellant’s claims have not been administratively combined.

2

Also on June 7, 2019, OWCP received a copy of an April 29, 2019 police report, indicating
that on April 29, 2019 at 2:28 p.m., appellant had stopped for traffic when her vehicle was rearended by another vehicle.
By decision dated June 7, 2019, OWCP denied appellant’s claim. It noted that appellant
had not returned the completed questionnaire and, therefore, she had not established that the
incident occurred as alleged. It concluded, therefore, that she had not met the requirements to
establish an injury as defined by FECA.
On June 25, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
October 18, 2019. Appellant testified that she was involved in a motor vehicle accident on
April 29, 2019. She explained that she was in a long life vehicle (LLV) pulling out of a parking
lot to make a right-hand turn when her vehicle was rear-ended. Appellant noted that she made a
police report, but did not seek treatment on the date of injury. Regarding the mechanism of injury,
she testified that “my body did jerk up towards the front and I banged my knee like on the shaft of
the driving wheel.” Appellant indicated that she sought initial treatment at a hospital a few days
after the incident and she was told that she had a pinched nerve. She confirmed that she had not
suffered any other injuries to the neck or back since the motor vehicle accident. Appellant also
indicated that she had a prior history of right knee problems and clarified that her injury in the
instant case was more in the thigh area.
In a November 20, 2019 letter, T.S., a human resource specialist, controverted the claim
and argued that appellant did not file the claim for four days and continued to work following the
injury. She also noted that appellant had a prior knee injury.
In a September 23, 2019 report, Dr. Gregory Menio, a Board-certified orthopedic surgeon,
noted that he saw appellant on November 30, 2018 for right knee pain, which she related that she
had had for approximately one year. He noted that her knee pain caused her to limp. Dr. Menio
advised that he then saw appellant for a magnetic resonance imaging (MRI) scan of the right knee
on December 6, 2016, which revealed arthritis at the patellofemoral joint with a large full thickness
cartilage defect. He advised that appellant underwent operative intervention to include Euflexxa
injections, which somewhat improved appellant’s symptoms, although her pain continued on
walking long distances. Dr. Menio noted that he recommended arthroscopy. It was delayed due
to a pregnancy, and then performed on August 15, 2018. He advised that he performed a partial
medial and lateral menisectomy and drilling of the femoral condyle, that appellant did well postsurgery, and returned to work delivering mail. Dr. Menio noted that appellant was last seen on
July 8, 2019 for persistent pain. He opined that appellant presented with right knee pain without
specific injury and that there were arthritic changes which “could be related to her work situation.”
A September 25, 2019 MRI scan of the lumbar spine, read by Dr. Francesco Priamo, a
diagnostic radiologist, revealed a right paramedian disc protrusion at L5-S1.
In an October 14, 2019 report, Dr. Allister Williams, a Board-certified orthopedic surgeon,
examined appellant and determined that appellant had a right paramedian disc protrusion at L5-S1,
low back pain, status post motor vehicle accident at work, and lumbar radiculopathy.
By decision dated December 18, 2019, OWCP’s hearing representative modified the
June 7, 2019 decision to find that the factual component of the claim was established; however,
3

the claim remained denied as the medical evidence of record was insufficient to establish causal
relationship between the diagnosed medical condition and the accepted employment incident.
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 the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,7 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.8 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.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back or right
knee condition causally related to the accepted April 29, 2019 employment incident.
OWCP initially received a May 3, 2019 report from Dr. Kolpon. Dr. Koplon noted that
appellant was seen for right leg and lower back injuries. He related appellant’s explanation that
6

Supra note 3.

7

C.D., Docket No. 20-0858 (issued November 30, 2020); R.M., Docket No. 20-0342 (issued July 30, 2020); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
8

V.P., Docket No. 20-0415 (issued July 30, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
9

20 C.F.R. § 10.115; S.A., Docket No. 20-0458 (issued July 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
10
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
11

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

4

she experienced soreness in the mid-to-lower lumbar region and pain in the right knee because she
struck it on the dash during the April 29, 2019 incident. Dr. Kolpon examined appellant and
diagnosed musculoskeletal pain. The Board has held that pain is not considered a diagnosis under
FECA, as pain merely refers to a symptom of an underlying condition.13 Furthermore, Dr. Kolpon
provided no opinion on causal relationship. The Board has also held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value
on the issue of causal relationship.14 Therefore, this report is insufficient to establish the claim.
In a September 23, 2019 report, Dr. Menio addressed appellant’s prior right knee condition
and noted that appellant had arthritis at the patellofemoral joint with a large full thickness cartilage
defect. He also noted that appellant had undergone right knee arthroscopy on August 15, 2018.
Dr. Menio indicated that he saw appellant on July 8, 2019 for right knee pain without specific
injury and opined that there were arthritic changes, which “could be related to her work situation.”
He offered no opinion as to whether appellant’s diagnosed condition was causally related to the
accepted April 29, 2109 employment incident. Accordingly, this report is of no probative value
on the issue of causal relationship and is insufficient to establish appellant’s claim.15
In an October 14, 2019 report, Dr. Williams diagnosed lumbar radiculopathy and a right
paramedian disc protrusion at L5-S1. However, he did not provide an opinion on causal
relationship. As previously explained, medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.16
This report is, therefore, also insufficient to establish appellant’s claim.
The record also contains a September 25, 2019 MRI scan. The Board has held that
diagnostic studies, standing alone, lack probative value on the issue of causal relationship, as they
do not provide an opinion as to whether the employment incident caused any of the diagnosed
conditions.17 This evidence is, therefore, insufficient to establish appellant’s claim.
As the medical evidence of record does not contain a rationalized medical opinion
establishing causal relationship between appellant’s diagnosed conditions and the accepted factors
of her federal employment, the Board finds that appellant has not met her 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.

13

T.W., Docket No. 20-0767 (issued January 13, 2021); M.V., Docket No. 18-0884 (issued December 28, 2018).
The Board has consistently held that pain is a symptom, not a compensable medical diagnosis. See P.S., Docket No.
12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
14

A.O., Docket No. 20-1395 (issued February 23, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

L.B., Docket No. 19-1907 (issued August 14, 2020).

16

B.W., Docket No. 20-1032 (issued November 17, 2020); S.J., Docket No. 19-0696 (issued August 23, 2019);
M.C., Docket No. 18-0951 (issued January 7, 2019); L.B., supra note 14; D.K., supra note 14.
17

See C.B., Docket No. 20-0464 (issued July 21, 2020).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back or right
knee condition causally related to the accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 21-1196
Issued: March 16, 2022

Case Submitted on the Record

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

JURISDICTION
On August 2, 2021 appellant, through counsel, filed a timely appeal from a June 22, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted September 18, 2020 employment incident.
FACTUAL HISTORY
On November 23, 2020 appellant, then a 40-year-old assistant rural carrier, filed a
traumatic injury claim (Form CA-1) alleging that on September 18, 2020 she sustained a lower
back injury when a chair she was sitting in suddenly dropped down while in the performance of
duty.3
In a November 11, 2020 statement, appellant indicated that on September 18, 2020 she was
assigned to answer telephones. She explained that the chair that she initially sat on was very
uncomfortable and, as she was trying to get comfortable in it, the chair suddenly moved back and
she felt a disc in her back move. Appellant noted that she switched to sit in a different chair when
the chair slowly started dropping down and she felt a disc in her back move again. She indicated
that she stopped work and sought medical treatment on the alleged date of injury.
In a November 27, 2020 letter, the employing establishment controverted appellant’s
claim. It contended that the current claim was not a new injury, but was related to appellant’s
previous back injuries sustained on June 23, 2019 and April 19, 2020.
In a November 30, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and provided a questionnaire for completion. OWCP
afforded appellant 30 days to respond.
OWCP subsequently received a September 18, 2020 emergency room report, Dr. Anitricia
Lumpkin, an osteopath, Board-certified in emergency and internal medicine, recounted that on
September 18, 2020 appellant “tweaked” her back when she sat on a low chair at work. She noted
that appellant had a history of back injury and described the June 23, 2019 and April 19, 2020
work incidents. Dr. Lumpkin reported physical examination findings of normal range of motion
and no tenderness. She indicated that a lumbar spine magnetic resonance imaging (MRI) scan
showed degenerative disc disease at L5-S1 and no suspicious osseous lesion. Dr. Lumpkin
assessed degenerative disc disease at L5-S1. Emergency room discharge instructions noted
diagnoses of back pain and lumbar degenerative disc disease.

3

OWCP assigned the present claim OWCP File No. xxxxxx425. Appellant has a previously accepted traumatic
injury claim related to a June 23, 2019 employment incident. OWCP assigned that claim OWCP File No. xxxxxx684
and accepted it for lumbar back strain. Appellant also previously filed a traumatic injury claim under OWCP File No.
xxxxxx088 for a back injury related to an April 19, 2020 employment incident. Appellant stopped work on that date
and accepted a full-time, limited-duty position on September 17, 2020. By decisions dated July 20 and November 24,
2020, and June 22, 2021, OWCP denied the claim.

2

In a September 21, 2020 after visit summary note, Dr. Shabnam Guard, Board-certified in
family medicine, noted the appellant was seen for back pain, unsteady gait, muscle weakness, and
numbness/tingling sensation of the skin.
In a September 21, 2020 return to work note, Dr. George Thomas, a family medicine
specialist, reported that appellant was seen in his office on that date and advised that she could
return to work on September 28, 2020.
OWCP also received a letter from Dr. Thomas dated July 2, 2020 who described
appellant’s June 23, 2019 and April 19, 2020 back injuries and the medical treatment that she had
received. He explained that a lumbar spine MRI scan demonstrated increased loss in disc height
in L5-S1, a mild broad-based disc bulge, and mild left foraminal narrowing. Dr. Thomas
recommended that appellant’s activities be limited to sitting and lifting up to 10 pounds.
In an epidural steroid injection procedure note dated October 1, 2020, Dr. Jacob Vella,
Board-certified in pain management and anesthesiology, noted a diagnosis of lumbar radiculitis.
An October 19, 2020 lumbar spine MRI scan report demonstrated minimal right and mild
left facet disease with minimal disc bulge at L4-5 and mild diffuse disc bulge and facet disease
without significant central foraminal canal stenosis or focal disc protrusion and a tiny old
Schmorl’s node inferior endplate of L5 with minimal diffuse posterior disc bulge at L5 -S1.
In a November 2, 2020 letter, Dr. Thomas recounted appellant’s April 19, 2020 back injury
and the medical treatment that she had received. He indicated that appellant was again seen on
September 18, 2020 and had informed him that she had injured her back again. Dr. Thomas
reported that appellant was referred to the hospital for evaluation and advised to follow-up with
physical therapy and pain management.
On December 15, 2020 OWCP received appellant’s completed development questionnaire.
Appellant indicated that she notified her supervisors, R.W. and G.T., of her injury that same day.
She also alleged that she had “agitated” her previous injury.
By decision dated January 5, 2021, OWCP accepted that the September 18, 2020 incident
occurred as alleged and that a medical condition was diagnosed ; however, it denied her claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed condition and the accepted employment incident.
On January 14, 2021 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on April 12, 2021. She testified that
she had previous problems with her back, however, her symptoms were different after the
September 18, 2020 work incident. Appellant noted that she felt something in her lower back shift
and she was unable to walk due to pain.
Appellant submitted an emergency room registration form, a triage intake form, lab results,
and a healthcare consent transfer form dated September 18, 2020.
OWCP also received a lumber spine computerized tomography scan dated September 18,
2020, which noted findings of degenerative disc disease at L5-S1.
3

A duty status report (Form CA-17) dated January 12, 2021, containing an illegible
signature, indicated that appellant could work part-time, limited-duty for 4.75 hours per day. It
described the mechanism of injury as “uncomfortable chair injured employee’s back” and noted a
diagnosis of lumbar spondylosis.
In a report dated January 27, 2021, Dr. Timothy Holt, an orthopedic surgeon, indicated that
appellant was evaluated for low back pain that radiated down his bilateral legs. He reported that
appellant sustained back injuries on June 23, 2019 and April 19, 2020 and described how the
injuries had occurred. Dr. Holt also recounted that on September 18, 2020 appellant was
answering telephones and trying to get comfortable in a chair when she felt something move in
her back. Appellant noted that she changed chairs and the chair suddenly dropped do wn. On
physical examination of appellant’s back, Dr. Holt observed positive straight leg raise, cram, and
Laseague testing bilaterally. Sensory examination was intact. Dr. Holt reported that a lumbar
spine MRI scan demonstrated degenerative disc disease at L4-5 and L5-S1. He assessed lumbar
radiculopathy, cervicalgia, lumbar spine instabilities, and intervertebral disc displacement of the
lumbar region.
In a procedure note dated February 3, 2021, Dr. Vella noted that appellant underwent a
lumbar discogram, which showed findings of lumbar pain and degenerative disc disease.
Dr. Holt also provided examination notes dated February 4 through April 21, 2021. He
reported examination findings of limited range of motion and a shuffling gait. Dr. Holt assessed
lumbar radiculopathy and other intervertebral disc degeneration of the lumbar region.
In a February 10, 2021 addendum note, Dr. Thomas described the June 23, 2019 and
April 19, 2020 back injuries and the medical treatment that appellant had received. He noted that
appellant worked for the employing establishment as an assistant rural carrier and was diagnosed
with lumbar degenerative disc disease at L4-5 and L5-S1 according to an October 19, 2020 MRI
scan and February 3, 2021 lumbar discogram. Dr. Thomas reported that “the injuries suffered as
described in the note above can cause the disc disease diagnosed by the MRI and discogram. ”
A March 15, 2021 lumbar spine MRI scan demonstrated chronically degenerated discs at
L4-5 with minimal bulge, chronically degenerated disc protruding centrally at L5 -S1, and endplate
degeneration at L5-S1.
On April 21, 2021 appellant underwent anterior lumbar interbody fusio n at L5-S1 and
discectomy. OWCP received several documents related to the surgery, including lab results, preoperative test results, an operative report, and a hospital discharge instruction sheet.
In a May 26, 2021 letter, Dr. Holt recounted that appellant was originally diagnosed with
lumbar radiculopathy at L5-S1 with disc degeneration after a June 23, 2019 work injury. He also
described that appellant “felt something twist in her lower back” when she bent down to organize
packages and climbed three flights of stairs. Dr. Holt noted that a lumbar discogram reproduced
her typical pain level at the L5-S1 level. He reported that appellant tried all conservative measures
without success and eventually underwent an anterior interbody lumbar fusion. Dr. Holt opined:
“I think that her injury is related to the September 18 th incident.” He explained that appellant “may
have been at more risk secondary to the previous injuries, but the 20 th is the straw that broke the
4

camel’s back” after a sudden jolt from a chair. Dr. Holt reported that it was “most likely” an
aggravation of the preexisting injury. He noted diagnoses of lumbar radiculopathy, other spinal
instabilities of the lumbar region, other intervertebral disc displacement in the lumbar region, and
other disc degeneration in the lumbar spine.
In a May 27, 2021 report, Dr. Holt indicated that appellant was seen for post-operation
follow-up evaluation. He recounted that appellant was walking better since the surgery , but still
had some occasional burning sensation in her lower back. On physical examination, Dr. Holt
reported limited range of motion and no clonus. Neurological examination was positive for
numbness and weakness in the bilateral arms and legs. Dr. Holt diagnosed primary arthrodesis
and recommended that appellant remain off work for another six weeks.
In a June 22, 2021 decision, OWCP’s hearing representative affirmed the January 5, 2021
decision.4
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
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.9 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

The hearing representative noted that given the injury in the present claim appellant ’s claim should be
administratively combined. The Board notes that OWCP subsequently administratively combined OWCP File Nos.
xxxxxx088, xxxxxx425, and xxxxxx684, with the latter claim designated as the master file. The Board notes that
appellant has another appeal pending under OWCP File No. xxxxxx088. That appeal will proceed under Docket No.
21-1195.
4

5

Supra note 1.

6

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

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

8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

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

5

time and place, and in the manner alleged. 10 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. 11
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence. 12 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 factor(s) identified by the employee. 13 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.14
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 18, 2020 employment incident.
Appellant received medical treatment from Dr. Holt. In reports dated January 27 through
May 26, 2021, he described that on September 18, 2020 appellant felt something move in her back
when she tried to get comfortable in a chair at work. Dr. Holt discussed appellant’s previous back
injuries and provided current examination findings. In a May 26, 2021 letter, he indicated that he
thought appellant’s injury was related to the September 18, 2020 employment incident. Dr. Holt
explained that appellant “may have been at more risk” after the previous injuries. He noted
diagnoses of lumbar radiculopathy, other spinal instabilities of the lumbar region, other
intervertebral disc displacement in the lumbar region, and other disc degeneration in the lumbar
spine. Dr. Holt concluded that it was “most likely” an aggravation of the preexisting injury. The
Board has held, however, that medical opinions that are speculative or equivocal in character are

10

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

11

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

12

See S.A., Docket No. 18-0399 (issued October 16, 2018); see also Robert G. Morris, 48 ECAB 238 (1996).

13

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345 (1989).
14

James Mack, 43 ECAB 321 (1991).

15

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

6

of limited probative value. 16 Accordingly, these reports are insufficient to establish appellant’s
claim.
In a September 18, 2020 emergency room report, Dr. Lumpkin described that appellant
“tweaked” her back at work. She reviewed appellant’s history of back injuries and provided
examination findings. Dr. Lumpkin assessed degenerative disc disease. Likewise, the
examination notes by Dr. Vella and Dr. Guard reported diagnoses of lumbar radiculopathy and
low back pain. However, these physicians did not provide an opinion on causal relationship. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 17
These reports, therefore, are insufficient to establish appellant’s claim.
Appellant was also treated by Dr. Thomas. In a July 2, 2020 letter, Dr. Thomas described
appellant’s previous June 23, 2019 and April 19, 2020 back injuries and reviewed the medical
treatment that she had received. In a November 2, 2020 letter, he indicated that he treated appellant
on September 18, 2020 because she had injured her back again. In a February 10, 2021 addendum,
Dr. Thomas reported that “the injuries suffered as described in the note above can cause th e disc
disease diagnosed by the MRI and discogram.” While he provided an opinion on causal
relationship, Dr. Thomas did not definitively relate appellant’s current lumbar condition to the
September 18, 2020 employment incident. He did not describe the accepted September 18, 2020
employment incident, nor provide any explanation of how the specific incident caused or
contributed to appellant’s current lumbar condition. The Board has held that medical opinion
evidence should reflect a correct history and of fer a medically sound explanation of how the
specific employment incident or work factors, physiologically caused injury. 18 These reports,
therefore, are insufficient to establish appellant’s claim.
OWCP also received a series of diagnostic tests. The Board has held, however, that
diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do
not address whether the employment incident caused a diagnosed condition. 19

16

J.W., Docket No. 18-0678 (issued March 3, 2020); D.B., Docket No. 18-1359 (issued May 14, 2019); Ricky S.
Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion sho uld be expressed in
terms of a reasonable degree of medical certainty).
17

V.L., Docket No. 20-0884 (issued February 12, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
18

K.J., Docket No. 21-0020 (issued October 22, 2021); L.R., Docket No. 16-0736 (issued September 2, 2016); J.R.,
Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).
19

V.Y., Docket No. 18-0610 (issued March 6, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); A.B.,
Docket No. 17-0301 (issued May 19, 2017).

7

Appellant also submitted a Form CA-17 dated January 12, 2021 containing an illegible
signature. However, this report is of no probative value since reports lacking proper identification
do not constitute probative medical evidence.20
As there is no medical evidence of record establishing that appellant’s lumbar condition
was causally related to the accepted employment incident, the Board finds that appellant has not
met her burden of proof to establish a diagnosed medical condition causally related to the accepted
September 18, 2020 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted September 18, 2020 employment incident.

20

A.W., Docket No. 21-0298 (issued August 26, 2021); C.B., Docket No. 09-2027 (issued May 12, 2010); Merton J.
Sills, 39 ECAB 572, 575 (1988).

8

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE &ACCOUNTING SERVICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 21-0856
Issued: February 4, 2022

Case Submitted on the Record

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

JURISDICTION
On May 19, 2021 appellant, through counsel, filed a timely appeal from a May 4, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 4, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted employment exposure.
FACTUAL HISTORY
On July 29, 2020 appellant, then a 64-year-old military pay technician filed an occupational
disease claim (Form CA-2) alleging that she developed legionella pneumonia due to factors of her
federal employment, including exposure to contaminated tap water in the employing establishment
restroom. She noted that she first became aware of her condition on July 11, 2017 and realized its
relation to factors of her federal employment on August 3, 2017. Appellant stopped work on
July 11, 2017.4
In a July 14, 2017 patient summary, Dr. Keyvan Ravakhah, a Board-certified internist,
noted that appellant was diagnosed with pneumonia, rectal bleeding, and legionella infection.
In an August 4, 2020 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide additional information, including
comments from a knowledgeable supervisor regarding the accuracy of her statements. It afforded
both parties 30 days to respond.
In an undated statement, appellant noted that she normally used bottled water to brush and
floss her teeth during her lunch break at work, but that she was running low on supplies as her last
day at work, July 28, 2017, approached. She indicated that she used the restroom tap water to
brush and floss. Appellant asserted that on July 7, 2017 she ingested water in the employing
establishment’s 17 th floor women’s restroom while cupping the water to rinse her mouth. She
alleged that she was informed by the emergency room doctor that she had legionella pneumonia.
Appellant indicated that she had only been to work and home and that the only changes she
experienced was using water at work to brush her teeth. She asserted that employees often used
bottled water as they did not trust the water fountains at the employing establishment. Appellant
related that she began feeling ill on July 7, 2017 and collapsed in the hallway at work on
July 11, 2017. She was hospitalized until July 14, 2017.
In a July 11, 2017 statement, appellant again noted that she was diagnosed with legionella
pneumonia in the emergency room. She contended that the employing establishment’s lack of
proper disinfection procedures failed to prevent/inhibit legionella bacteria growth. Appellant
asserted that legionella bacteria was found in the 17 th floor women’s restroom. She further noted
that she used water in that restroom around the last two weeks of June through July 7, 2017.
Appellant contended that she contracted a full body infection, which caused fever, chills, rectal
bleeding, vomiting, and diarrhea. She noted that the pneumonia particularly affected her lungs

4

A notification of personnel action Standard Form (SF)-50B indicates that appellant resigned from the employing
establishment, effective July 28, 2017.

2

due to preexisting sarcoidosis. Appellant indicated that she had not previously experienced similar
conditions.
A July 25, 2017 lab report revealed that multiple sites at the employing establishment,
including several restroom sinks, tested positive for the presence of legionella bacteria in the water.
Appellant also submitted a copy of a study detailing August 3, 2017 testing of legionella
bacteria samples at the employing establishment. The testing, completed by a private company,
revealed results that were positive for presence of legionella bacteria at multiple sites, including
the restroom sink that appellant allegedly used.
In an August 11, 2017 e-mail, Amy Anter, a registered nurse and a communicable disease
investigator, noted that the water samples from the employing establishment contained low levels
of legionella, which required no immediate action.
In an April 21, 2019 narrative report, Dr. Debra A. DeJoseph, a Board-certified internist,
reviewed appellant’s medical records, including treatment records regarding legionella. She
indicated that appellant had a preexisting medical history, including sarcoidosis, which had been
in remission since 2000. Dr. DeJoseph further noted that appellant was hospitalized on July 11,
2017 after becoming acutely dyspneic at work and was diagnosed with legionella pneumonia. She
reviewed a report addressing the legionella bacteria samples at the employing establishment and
noted that September 2017 testing of the women’s restroom sinks showed that legionella was
growing in the water line. Dr. DeJoseph opined that “the deterioration in [appellant’s] work
performance was directly impacted by the health problems from legionella, and that this poor
performance caused a downward spiral in her ability to work.” She further asserted that, “This
experience has left [appellant] permanently changed and unable to work at present. ”
In a September 1, 2020 response to OWCP’s development questionnaire, the employing
establishment controverted appellant’s claim.
By decision dated December 4, 2020, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish a medical condition
causally related to the accepted employment exposure.
On December 11, 2020 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a laboratory report that provided blood culture results.
A hearing was held on March 10, 2021. By decision dated May 4, 2021, the hearing
representative affirmed OWCP’s December 4, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
5

Supra note 2.

3

limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 9
Causal relationship is a medical issue, and the evidence required to establish causal
relationship is 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 specific employment factors identified by the
employee.11
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 12
ANALYSIS
The Board finds that this case is not in posture for decision. In her April 21, 2019 narrative
report, Dr. DeJoseph reviewed appellant’s medical records. She indicated that appellant had a
preexisting medical history, including sarcoidosis, which had been in remission since 2000.
Dr. DeJoseph further noted that appellant was hospitalized on July 11, 2017 after becoming
acutely dyspneic at work and was diagnosed with legionella pneumonia. She reviewed a report
addressing the legionella bacteria samples at the employing establishment and noted that
6

J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
7

J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

10

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
11

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J.,
59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

A.O., Docket No. 20-0038 (issued August 26, 2020); B.H., Docket No. 18-1693 (issued July 20, 2020); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

4

September 2017 testing of the women’s restroom sinks showed that legionella was growing in the
water line. Dr. DeJoseph opined that “the deterioration in [appellant’s] work performance was
directly impacted by the health problems from legionella, and that this poor performance caused a
downward spiral in her ability to work.” She further asserted that “This experience has left
[appellant] permanently changed and unable to work at present.” The Board has long held that it
is unnecessary that the evidence of record in a case be so conclusive as to suggest causal connection
beyond all possible doubt. Rather, the evidence is only that necessary to convince the adjudicator
that the conclusion drawn is rational, sound, and logical. 13 Although the medical report by
Dr. DeJoseph is insufficient to meet appellant’s burden of proof to establish her claim, it does raise
an uncontroverted inference of causal relationship between her diagnosed conditions and the
accepted employment exposure to legionella bacteria, sufficient to require OWCP to further
develop the claim. 14
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. 15 It has an obligation to see that justice is done.16
On remand, OWCP shall refer appellant to a specialist in the appropriate field of medicine,
along with the case record and a statement of accepted facts. Its referral physician shall provide a
well-rationalized medical opinion as to whether her diagnosed pneumonia, rectal bleeding, and
legionella infection were causally related to the accepted employment exposure. If the physician
opines that the diagnosed conditions are not causally related, he or she must explain with rationale
how or why the opinion differs from that of Dr. DeJoseph. After this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

B.C., Docket No. 20-0498 (issued August 27, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983).
14

See E.G., Docket No. 19-1296 (issued December 19, 2019); John J. Carlone, 41 ECAB 354 (1989).

15

Id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

16

S.M., Docket No. 19-1634 (issued August 25, 2020); see B.C., Docket No. 15-1853 (issued January 19, 2016);
John J. Carlone, supra note 14.

5

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 4, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________

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

Docket No. 12-1312
Issued: December 7, 2012

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 May 30, 2012 appellant filed a timely appeal from a March 13, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his claim for a traumatic
injury and a May 1, 2012 nonmerit decision denying his request for reconsideration. 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 and nonmerits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained an injury in the performance of duty on January 12, 2012, as alleged; and (2) whether
OWCP properly refused to reopen his case for further reconsideration of the merits pursuant to 5
U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 1, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant requests that OWCP pay his outstanding medical bills.
FACTUAL HISTORY
On January 25, 2012 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a muscle strain and head contusion as a result of
being rear-ended in an automobile while in the performance of duty on January 12, 2012.
Appellant submitted an Illinois Motorist Report and a hospital bill dated January 12, 2012
from Northwest Community Hospital in Chicago, Illinois.
In a February 8, 2012 letter, OWCP requested additional factual and medical evidence. It
afforded appellant 30 days to submit additional evidence and respond to its inquiries. Appellant
did not respond.
By decision dated March 13, 2012, OWCP accepted that the January 12, 2012 incident
occurred as alleged but denied appellant’s claim finding that he failed to submit evidence
containing a medical diagnosis in connection with the injury or events. Thus, it concluded that
he had not established fact of injury.
On April 18, 2012 appellant requested reconsideration and submitted an undated
narrative statement reiterating that he was rear-ended on January 12, 2012. He indicated that he
was taken to the hospital by ambulance and requested that OWCP pay his outstanding medical
bills.
By decision dated May 1, 2012, OWCP denied appellant’s request for reconsideration of
the merits finding that he did not submit pertinent new and relevant evidence and did not show
that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
ANALYSIS -- ISSUE 1
OWCP has accepted that the employment incident of January 12, 2012 occurred at the
time, place and in the manner alleged. The issue is whether appellant sustained an injury as a
result of the January 12, 2012 employment incident. The Board finds that he did not meet his
burden of proof to establish a condition causally related to the January 12, 2012 employment
incident.
In addition to the claim form, appellant submitted an Illinois Motorist Report and a
January 12, 2012 hospital bill from Northwest Community Hospital in Chicago, Illinois. These
documents do not constitute medical evidence and, therefore, fail to establish a medical
diagnosis in connection to the January 12, 2012 employment incident. As such, the Board finds
that appellant did not meet his burden of proof with these submissions.
As appellant has not submitted any medical evidence to support his allegation that he
sustained an injury related to the January 12, 2012 employment incident, he has failed to meet
his burden of proof to establish the medical component of fact of injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.7 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).8
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
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
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at anytime on her own motion or on application. 5 U.S.C. § 8128(a).
8

See Annette Louise, 54 ECAB 783, 789-90 (2003).

3

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.9 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.10 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.11
ANALYSIS -- ISSUE 2
In support of his April 18, 2012 reconsideration request, appellant submitted a narrative
statement. The Board notes that submission of this statement did not require reopening his case
for merit review. As OWCP denied appellant’s claim based on the lack of supportive medical
evidence and his narrative statement merely reiterates factual history of record, his statement is
not relevant and pertinent and is not sufficient to require OWCP to reopen his claim for
consideration of the merits.12
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law, nor did he advance a relevant legal argument not previously
considered by OWCP. As he did not meet any of the necessary requirements, he is not entitled
to further merit review.
OWCP, however, did not adjudicate the issue of appellant’s incurred medical expenses.
In his April 18, 2012 reconsideration request, appellant requested that OWCP pay his
outstanding medical bills related to the employment incident. Ordinarily, the employing
establishment will authorize treatment of a job-related injury by providing the employee a
properly executed Form CA-16 within four hours.13 Under section 8103 of FECA, OWCP has
broad discretionary authority to approve unauthorized medical care which it finds necessary and
reasonable in cases of emergency or other unusual circumstances, to be determined on a case-bycase basis.14 The Board finds that the circumstances of the case warrant additional development
of this issue. The case will be remanded to OWCP for further development, to be followed by
the issuance of a de novo decision on this issue.

9

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

12

See James W. Scott, 55 ECAB 606 (2004).

13

See Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (September 1995).
14

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); see also Chapter
3.300.3(a)(3), supra note 13.

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on January 12, 2012, as alleged. The Board
further finds that OWCP properly refused to reopen his case for further reconsideration of the
merits pursuant to 5 U.S.C. § 8128(a). The case will be returned to OWCP for consideration of
whether appellant’s medical expenses should be reimbursed.
ORDER
IT IS HEREBY ORDERED THAT the May 1 and March 13, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed. The case is remanded for further
development regarding the reimbursement of medical expenses.
Issued: December 7, 2012
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

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