United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hudson, MI, Employer
__________________________________________

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

Docket No. 20-0787
Issued: September 16, 2021

Case Submitted on the Record

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

JURISDICTION
On February 26, 2020 appellant, through counsel, filed a timely appeal from a
December 19, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 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 December 19, 2019 decision, appellant submitted additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a right shoulder injury while in the performance of duty on May 7, 2019, as alleged.
FACTUAL HISTORY
On May 14, 2019 appellant, then a 56-year-old rural carrier associate (RCA), filed a
traumatic injury claim (Form CA-1) alleging that at 3:30 p.m. on May 7, 2019 she sustained an
injury to her right shoulder while in the performance of duty. She explained that she was hit by a
set of double doors when another employee pushed a cart through to enter a room. Following the
incident, appellant encountered extreme pain in her right shoulder and arm that permeated to her
neck. The reverse side of the claim form notes appellant’s duty stations as: Hudson Post Office;
Pittsford Post Office; Waldron Post Office; and Clayton Post Office. The form further indicates
that appellant’s regular work hours were 8:00 a.m. to 4:00 p.m.; however, with regard to
appellant’s work schedule there were no guaranteed hours as her schedule varied. Additiona lly,
appellant’s supervisor indicated on the reverse side of the claim form that she was not in the
performance of duty when the injury occurred as she was off the clock and entered the building to
review her work schedule without looking through the window to confirm clearance. Appellant
stopped work on May 13, 2019.
In a May 13, 2019 statement, appellant explained that on May 7, 2019 she came into the
Hudson Post Office to get her new schedule. As she was walking out the double doors K.B.,
appellant’s coworker, came through the doors with a loaded cart and rammed the door into her
shoulder. Appellant immediately grabbed her shoulder and stated that she could not respond to
K.B.’s apology because the impact took her breath away. She identified K.W., another coworker,
as a witness to the incident. In a separate statement of even date, appellant reiterated that on May 8,
2019 K.B. came through the double doors with a cart and hit her right shoulder with the door. 4
She noted that she had pain in her right arm and right shoulder blade down to her fingers.
In a May 13, 2019 medical note, Dr. Eric Smith, Board-certified in emergency medicine,
diagnosed calcific tendinitis of the right shoulder and prescribed a medication to treat appellant ’s
condition. In a separate medical note of even date, he requested that she remain off work for the
remainder of the week.
In a May 14, 2019 statement, K.W. explained that he did not personally witness the alleged
incident within the week of May 6 to 10, 2019, but he did hear a commotion in the foyer. He heard
K.B. apologize to appellant for hitting her with the door. Appellant did not immediately respond,
but eventually told K.B. to go ahead and go through the doors. He then left the building.
In a May 14, 2019 duty status report (Form CA-17), Dr. Howard Merritt, Board-certified
in emergency medicine, diagnosed a right shoulder contusion and underlying calcific tendinitis
caused when a swinging door hit appellant’s shoulder. He opined that she was not capable of
performing her regular work duties and advised that she not resume work.

Appellant’s statement identified May 8, 2019 as the date of injury and spelled K.B.’s name with a “C,” however
both of these appear to be typographical errors.
4

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E.J., appellant’s supervisor, indicated in a May 14, 2019 statement that when appellant
reported to work on May 13, 2019 she informed her of the alleged May 7, 2019 incident in which
she entered the Hudson Post Office around 3:30 p.m. to review her work schedule and her shoulder
was hit when K.B. came through the swinging doors. E.J. indicated that appellant was off the
clock at the time she came to review her schedule. Appellant explained to E.J. that she did not
immediately report the incident because her shoulder did not start hurting until May 13, 2019. She
initially stated that she did not want to seek medical attention, but later called her supervisor and
changed her mind. E.J. noted that appellant stopped her route and visited the emergency room
where a magnetic resonance imaging (MRI) scan was performed and indicated that no further
damage of her right shoulder was found.
Appellant also submitted an undated occupational injury/illness status report with an
illegible signature diagnosing right shoulder pain caused when a door opened and hit her right
shoulder.
In a development letter dated May 15, 2019, 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 factual questionnaire for her completion. In a separate development letter
dated May 16, 2019, OWCP requested that the employing establishment provide additional
information regarding appellant’s occupational disease claim, including comments from a
knowledgeable supervisor regarding the accuracy of appellant’s statements. It afforded both
parties 30 days to respond.
In response, appellant submitted a May 21, 2019 statement in which she insisted that she
was required to go into the office 5 to review her schedule and explained that she did not call to
review her schedule because the schedule often changes with no communication. She clarified
that the employment incident occurred on May 7 and not May 8, 2019 and described the immediate
effects of her injury as extreme pain on impact that eventually settled down with movement.
Appellant continued to submit medical evidence. In a May 16, 2019 diagnostic report, she
underwent an x-ray of her right shoulder which found calcific tendinitis of the right shoulder. The
report noted no acute fracture or dislocation and ruled out a small rotator cuff tear.
In a May 16, 2019 progress note, Dr. Riccardo Giovannone, a Board-certified orthopedic
surgeon, reviewed the history of appellant’s injury in which someone came through the double
doors at work with a cart and jerked her arm back and diagnosed bilateral shoulder pain. In a
medical note of even date, he diagnosed calcific tendinitis of the right shoulder and acute pain of
the right shoulder and referred appellant to physical therapy. In a separate May 16, 2019 medical
note, Dr. Giovannone recommended that appellant remain out of work until after being reevaluated
on June 15, 2019.
Appellant submitted physical therapy notes dated from May 21 to June 13, 2019 in which
Marilyn Rendel, a physical therapist, provided notes pertaining to appellant’s treatment for her

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The record indicates that Hudson Post Office is the main branch covering the Clayton, Pittsford, and Waldron
branches. Appellant was scheduled to work from one of the smaller branches on May 7, 2019. She was injured when
checking her work schedule at the Hudson Post Office (main branch) that afternoon.

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calcific tendinitis of the right shoulder, acute pain of the right shoulder and stiffness of the right
shoulder.
In a June 5, 2019 statement, appellant explained that she reported to the Hudson office
every week for over a year in order to check her schedule for changes, make copies of her schedule,
and report her time worked to her supervisors. She asserted that she has called multiple times to
see if her schedule could be texted or e-mailed to her, but it had never been done before. Appellant
indicated that the schedules are also posted in other offices, but the updates are never
communicated or posted in those offices. She provided examples of times her schedule changed
without notice and described the communication in the Hudson office as extremely poor and
therefore, she often went in to the Hudson office to check the schedule herself. Appellant noted
that she has come into the office while she was off the clock for several years, with management
knowing, to check for new schedules and changes to her existing schedules and asserted that she
had never been told to not do so. In a separate statement of even date, she again detailed the events
of the alleged May 7, 2019 employment incident.
In a June 6, 2019 statement, G.O., appellant’s postmaster, asserted that appellant was not
required to come into the office to review her schedule on May 7, 2019 and explained the rules by
which the schedules are normally posted. She controverted appellant’s claim stating that appellant
changed her explanation of the alleged employment incident three times and provided that upon
investigation she could not duplicate the door hitting her in the shoulder the way appellant
explained. G.O. asked appellant why she would use her right shoulder to open the door when she
had a preexisting condition of calcific tendinitis and appellant could provide no explanation. On
June 5, 2019 appellant came into the office and informed another supervisor that she had been
thinking it over and reasoned that she must have been using her extended right arm to open the
door when it was pushed back on to her by the other carrier. G.O. detailed a May 13, 2019
conversation appellant had with another supervisor where she stated that she had already been
receiving shots for her calcific tendinitis for the past year and that she could not afford a $2,000.00
deductible to get surgery on her shoulder. She also provided that she did not sign off on a
Form CA-1 because appellant was not on the clock when her injury occurred.
In a June 10, 2019 statement, F.B., an RCA at the Pittsford Post Office, stated that at no
point during orientation did a supervisor or postmaster state that carriers could not come into the
office while they were off the clock for safety reasons. He provided that he had gone into the post
office several times to take care of paperwork and for other reasons.
In another June 10, 2019 statement, P.K., appellant’s coworker, stated that she had
witnessed employees come into the Hudson Post Office while they were off the clock and that she
herself had never been told not to do so.
In a June 12, 2019 statement, B.B., an employee at the Pittsford Post Office, asserted that
in his 21 years of working at that post office no one had ever told him not to come in on his day
off until appellant’s alleged incident occurred. He indicated that he would start letting the rural
carriers know to call in and noted that there was a lack of communication in the Hudson Post
Office.
In a separate June 12, 2019 statement, L.T., a clerk at the Pittsford Post Office, noted that
it was common for rural carriers to periodically check the schedule at the Hudson office as it was
often updated. The statement noted that in order for the rural carriers to stay on top of their work
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it was sometimes necessary for them to stop by in the Hudson office before or after their shift so
they could better plan for their next day of work. During the week of May 6, 2019 the schedules
were changed several times and it was confusing as there was a lack of communication from the
Hudson office.
In a June 13, 2019 statement, S.J., a clerk of the Hudson Post Office, indicated that work
schedules are posted in all four offices at the close of business every Wednesday. She claimed
that she had texted pictures of the schedules to carriers in the past so that they would not have to
come all the way into the Hudson office to view it. S.J. also asserted that she was told by
management that it was the employees’ responsibility to come in and check the schedules
themselves. She agreed that a lack of communication does occur frequently in the Hudson office
and reasoned that there were instances where management has changed the schedule and she did
not receive a communication about it.
In a June 14, 2019 Form CA-17, Dr. Giovannone diagnosed a small rotator cuff tear of the
right shoulder and calcific tendinitis due to the alleged May 7, 2019 employment incident and
provided work restrictions for appellant to follow. In a medical note of even date, he opined that
appellant could return to work on June 17, 2019 with no repetitive use of her upper extremity.
In a June 20, 2019 statement, G.O., appellant’s postmaster, claimed that on May 7, 2019
appellant finished her shift at 2:50 p.m. and was definitely off the clock at 3:30 p.m. when her
alleged injury occurred and attached a time-keeping record in confirming. She controverted
appellant’s statement, contending that she was not required to come into the office to copy her
schedule and did so at her own preference. G.O. reviewed the post office scheduling procedure in
which new schedules for the week are posted in each office every Wednesday. She asserted that
management was not required to text or e-mail schedules to employees. G.O. explained that
appellant’s position as an RCA meant that her schedule was flexible and would be changed on
occasion when a regular carrier is sick or requests leave from work. She claimed that when
schedule changes occur she or a supervisor will personally call an RCA to inform them of the
change and stated that she had not received a complaint from any other RCA about difficulties in
obtaining the schedule or a lack of communication. G.O. challenged appellant’s actions reasoning
that her current schedule had been posted since May 1, 2019 and had not been changed and,
therefore, asserted that she could have checked her schedule at any point. She also attached e mails dated April 30 and May 5, 2019 demonstrating that she provided the schedules for the
following weeks to the other post offices in advance.
In a June 26, 2019 medical note, Dr. Giovannone provided his updated suggestions for
appellant’s work restrictions.
By decision dated June 28, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that her injury arose during the course of
employment and within the scope of compensable work factors. It explained that she was off the
clock when the May 7, 2019 employment incident occurred.
OWCP continued to receive evidence. Appellant submitted a May 22, 2019 physical
therapy report from Ms. Rendel detailing her continued treatment for her calcific tendinitis of the
right shoulder, acute pain of the right shoulder and stiffness of the right shoulder.

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In a June 14, 2019 progress note, Dr. Giovannone provided an update on appellant’s right
shoulder as it related to her calcific tendinitis and recent reinjury. She informed him that an
injection she received on May 16, 2019 helped along with physical therapy. Dr. Giovannone
diagnosed calcific tendinitis and bilateral shoulder pain.
In a June 25, 2019 e-mail, G.O. clarified the structure of the RCA’s duties as it pertained
to their work assignments to one of three remote offices. She controverted appellant’s injury
reasoning that it did not occur at the employing establishment because she was at a remote post
office and she was off the clock. G.O. stated that appellant was not required to come into the
Hudson office at all because her schedule had not been updated.
On an August 23, 2019 appeal request form received by OWCP on September 25, 2019
appellant requested reconsideration of OWCP’s June 28, 2019 decision.
In a May 1, 2019 medical report, Dr. Giovannone evaluated appellant for intermittent pain
she experienced in her shoulders over the years, especially in the right shoulder. He referred to an
April 30, 2019 x-ray of her right and left shoulders and diagnosed bilateral shoulders calcific
tendinitis.
In a July 11, 2019 medical note, Dr. Giovannone requested that appellant be excused from
work until she is reevaluated on July 17, 2019. In a July 17, 2019 progress note, he noted that
appellant was not working because the employing establishment could not comply with her work
restrictions. Appellant informed Dr. Giovannone that she still experienced pain in her right
shoulder every once and a while. Dr. Giovannone diagnosed calcific tendinitis of the right
shoulder and right rotator cuff tendinitis. In a medical note of even date, he suggested that
appellant return to work beginning July 22, 2019 with no restrictions on a trial basis.
In three medical notes dated July 23, 2019, Dr. Giovannone recounted the May 7, 2019
injury in which appellant injured her right shoulder when a door impacted it and caused trauma
and immobility. He stated that she was off work from May 13 to July 17, 2019 and was released
to work with no restrictions after her shoulder showed full range of motion.
By decision dated December 19, 2019, OWCP denied modification of its June 28, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

6

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

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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
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”9 The phrase
“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of “arising out of and in the
course of employment.”10 The phrase “in the course of employment” is recognized as relating to
the work situation, and more particularly, relating to elements of time, place, and circumstance.
To arise in the course of employment, an injury must occur at a time when the employee may
reasonably be stated to be engaged in the master’s business, at a place where the employee may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something incidental
thereto.11 In deciding whether an injury is covered by FECA, the test is whether, under all the
circumstances presented, causal relationship exists between the employment itself, or the
conditions under which it is required to be performed, and the resultant injury. 12
Injuries arising on the employing establishment’s premises may be approved if the claimant
was engaged in activity reasonably incidental to his or her employment. 13 The course of
employment for employees having a fixed time and place of work includes a reasonable interval
before and after official working hours while the employee is on the premises engaged in
preparatory or incidental acts.14
ANALYSIS
The Board finds that appellant has established that an incident occurred in the performance
of duty on May 7, 2019, as alleged.
As previously noted, to arise in the course of employment, an injury must occur at a time
when the employee may reasonably be stated to be engaged in the master’s business, at a place
where the employee may reasonably be expected to be in connection with the employment, and
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

5 U.S.C. § 8102(a).

10

See M.T., Docket No. 17-1695 (issued May 15, 2018); S.F., Docket No. 09-2172 (issued August 23, 2010);
Charles Crawford, 40 ECAB 474, 476-77 (1989).
11

See M.T., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

12

J.N., Docket No. 19-0045 (issued June 3, 2019); M.W., Docket No. 15-0474 (issued September 20, 2016); Mark
Love, 52 ECAB 490 (2001).
13

A.P., Docket No. 18-0886 (issued November 16, 2018); S.M., Docket No. 16-0875 (issued December 12, 2017);
J.O., Docket No. 16-0636 (issued October 18, 2016); T.L., 59 ECAB 537 (2008). See also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4a(2) (August 1992).
14

See J.K., Docket No. 17-0756 (issued July 11, 2018).

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while she was reasonably fulfilling the duties of her employment or engaged in doing something
incidental thereto.15
Herein, the record reflects that on May 7, 2019 appellant’s shift at a branch post office
ended at 2:50 p.m. and she entered the Hudson Post Office at 3:30 p.m. in order to check her
schedule for the following day. She asserted in statements dated May 21 and June 5, 2019 that she
had been coming into the main (Hudson) post office after hours with management’s knowledge in
order to check her schedule for the past year. Appellant explained that she had requested multiple
times that any updates to her schedule be e-mailed or texted to her, but she had never received
them and also that the Hudson Post Office often changed the schedules without communicating
the changes to its employees. Appellant also contended that she had never been told not to come
to the main (Hudson) post office on days when she was not scheduled to work there.
Appellant also submitted multiple statements from coworkers supporting her allegations.
The Board finds that on May 7, 2019 when appellant arrived at the Hudson Post Office
after her work shift, she was engaged in a preparatory and/or incidental act, and was thus in the
performance of duty. As stated above, the Board has held that the course of employment for
employees having a fixed time and place of work includes a reasonable interval before and after
official working hours while the employee is on the premises engaged in preparatory or incidental
acts.16 Here, appellant arrived to check her schedule only 40 minutes after the end of her shift in
order to review her work schedule for her next shift. Additionally, she submitted multiple
statements demonstrating that it was important for employees to come in and check their schedules
in person in order to stay on top of their work due to a lack of communication from the Hudson
Post Office and the frequency with which work schedules are updated. The Board thus finds that
appellant has established that she was in the performance of duty at the time of the May 7, 2019
employment injury.
As appellant has established that the May 7, 2019 employment incident factually occurred,
the question becomes whether this accepted employment incident caused an injury.17 The Board
will, therefore, set aside OWCP’s December 19, 2019 decision and remand the case to OWCP for
consideration of the medical evidence. Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met her
burden of proof to establish an injury causally related to the accepted employment incident.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that an incident
occurred in the performance of duty on May 7, 2019, as alleged. The Board further finds that this
case is not in posture for decision with regard to whether she sustained an injury causally relate d
to the accepted May 7, 2019 employment incident.

15

Supra note 11.

16

Supra note 14.

17

M.L., Docket No., 19-0361 (issued October 24, 2019); Willie J. Clements, 43 ECAB 244 (1991).

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ORDER
IT IS HEREBY ORDERED THAT the December 19, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 16, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 17-0611
Issued: June 2, 2017

Case Submitted on the Record

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

JURISDICTION
On January 18, 2017 appellant filed a timely appeal from August 17 and December 15,
2016 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish neck and back
injuries causally related to a July 1, 2016 employment incident.
On appeal, appellant contends that he sustained work-related neck and back injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 1, 2016 appellant, then a 53-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he experienced neck and back pain as a result of a motor vehicle
accident while delivering mail on that day. He stopped work on the date of the alleged injury
and returned to work on July 5, 2016.
On July 7, 2016 the employing establishment submitted witness statements dated
July 1, 2016 describing the alleged incident. Appellant related that his vehicle was stopped when
it was hit on the front end by a passing car. A customer related that another driver tried to pass
him and ran his vehicle off the road causing him to hit appellant’s vehicle. A supervisor noted
that he was informed by appellant that he was sideswiped by a customer and that a police officer
cited the customer for passing in a nonpassing zone. The employing establishment also
submitted a description of appellant’s city carrier position and other administrative information.
By letter dated July 15, 2016, OWCP informed appellant of the deficiencies in his claim
and requested that he submit medical evidence, including a rationalized medical report from his
physician, which explained how the reported work incident caused or aggravated a medical
condition.
In a partial medical report dated July 11, 2016, Dr. Matthew M. Richardson, an attending
Board-certified physiatrist specializing in pain medicine, noted a history that appellant had been
previously treated for an industrial injury involving his neck and back. He indicated that there
was evidence of disc pathology in his neck and back that was treated with epidural steroid
injections, rehabilitation, and medication. Dr. Richardson provided a history of the July 1, 2016
incident and noted appellant’s complaints, including his primary complaint of cervical spine
pain. He assessed facet arthropathy without myelopathy or radiculopathy, lumbar and cervical
regions, and facet arthropathy, thoracic region. Dr. Richardson noted that appellant continued to
work despite his discomfort.
A July 29, 2016 letter from Dr. Richardson’s office indicated that appellant was seen that
date by Dr. Richardson and that he could return to work on August 1, 2016.
By decision dated August 17, 2016, OWCP denied appellant’s traumatic injury claim as
the medical evidence of record did not contain a medical diagnosis in connection with the
accepted July 1, 2016 work incident.
OWCP received a complete version of Dr. Richardson’s July 11, 2016 report, which
noted that appellant’s back, neck, and right and left lower extremities were aching and throbbing.
Appellant’s pain level was 9 out of 10. He had no associated numbness, weakness, and catching
or giving out. Dr. Richardson noted a history of his social and medical background and reported
findings on physical examination. He reiterated his assessment of lumbar and cervical facet
arthropathy without myelopathy or radiculopathy and thoracic facet arthropathy.
In a July 29, 2016 follow-up report, Dr. Richardson noted appellant’s complaint of back,
neck, and mid-back pain and history of his medical treatment. He listed findings on physical
examination. Dr. Richardson indicated that appellant had a previous injury with six percent

2

whole person impairment rating. Appellant now had symptoms on the left versus the right. He
also had a history of L4-L5 disc protrusion with high intensity zones on L4-L5 and L5-S1. At a
minimum, appellant had at least an exacerbation and aggravation of a preexisting condition and
likely an additional component as he now had left-sided symptoms instead of his past right-sided
symptoms. In addition, he had new interscapular thoracic spine pain.
On September 15, 2016 appellant requested reconsideration.
By decision dated December 15, 2016, OWCP denied appellant’s traumatic injury claim.
It modified the August 17, 2016 decision to reflect that the medical evidence submitted did not
contain rationalized medical opinion evidence sufficient to establish causal relationship between
appellant’s diagnosed conditions and the July 1, 2016 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.3
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.4
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon a complete factual and
medical background, showing causal relationship between the claimed condition and the
identified factors.7 The belief of the claimant that a condition was caused or aggravated by the
employment incident is insufficient to establish a causal relationship.8

2

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

3

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

4

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

5

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

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
7

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury caused by the July 1, 2016 employment incident. Appellant has failed to submit medical
evidence sufficient to establish neck and back conditions causally related to the accepted
employment incident.
Appellant submitted reports from Dr. Richardson. In his July 11 and 29, 2016 reports,
Dr. Richardson noted the history of the July 1, 2016 work incident and offered diagnoses that
included lumbar, cervical, and thoracic facet arthropathy. He advised that appellant had stiffness
after the incident and increased back pain and symptoms. Dr. Richardson noted that appellant
had a previous injury with a prior six percent whole person impairment rating and currently had
at least an exacerbation and aggravation of a preexisting condition and likely an additional
component because he had left-sided symptoms rather than his previous right-sided symptoms.
Although he referenced the July 1, 2016 work incident, Dr. Richardson did not clearly explain
how or why this incident caused or aggravated the diagnosed medical conditions.9 The need for
medical rationale, or reasoning, is particularly important where the evidence indicates that
appellant had a preexisting condition.10 The Board finds that the evidence from Dr. Richardson
is insufficient to establish appellant’s claim.
The July 29, 2016 letter from Dr. Richardson’s office, noting appellant’s disability status,
has no probative medical value as the author cannot be identified as a physician.11
The Board finds that appellant has failed to submit rationalized probative medical
evidence to establish that he sustained neck and back injuries causally related to the July 1, 2016
employment incident. Thus, appellant has not met his burden of proof.
On appeal, appellant contends that he sustained work-related neck and back injuries. For
the reasons stated above, the Board finds that the weight of the medical evidence does not
establish neck and back conditions causally related to the accepted July 1, 2016 work 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 failed to meet his burden of proof to establish neck
and back injuries causally related to a July 1, 2016 employment incident.

9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
10

E.D., Docket No 16-1854 (issued March 3, 2017).

11

See Merton J. Sills, 39 ECAB 572 (1988).

4

ORDER
IT IS HEREBY ORDERED THAT the December 15 and August 17, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 2, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND POST
OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0359
Issued: March 1, 2022

Case Submitted on the Record

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

On January 12, 2022 appellant filed a timely appeal from a December 13, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0359.
In a letter dated February 15, 2022, appellant requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that appellant’s request for the
withdrawal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the withdrawal of the appeal
is granted. The appeal docketed as No. 22-0359 is dismissed.
Issued: March 1, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hampton, VA, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1719
Issued: February 6, 2018

Case Submitted on the Record

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

JURISDICTION
On August 3, 2017 appellant, through counsel, filed a timely appeal of a February 14,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a left groin or hip
condition causally related to the accepted April 4, 2014 employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before Board.3 The facts and circumstances as set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 4, 2014 appellant, then a 50-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date he strained his left groin while walking. He did not
indicate on the claim form whether he stopped work.
In support of his claim appellant submitted an April 4, 2014 duty status report (Form CA17) by Carl D. Wright, a physician assistant. Mr. Wright indicated that appellant sustained a
groin strain on that date and required work restrictions.
In a May 19, 2014 report by Dr. James E. Dowd, a Board-certified orthopedic surgeon, it
was noted that appellant was a mail carrier and that about seven weeks prior he had an event
where he had sudden, significant pain in his groin and leg. He also noted that on May 1, 2014
appellant was unable to walk. Dr. Dowd indicated that appellant had a magnetic resonance
imaging (MRI) scan and was diagnosed with significant hip arthritis. He noted that appellant
continued to have significant pain in his hip, joint, and groin, and listed his impression as
femoroscetabular impingement with secondary degeneration inflammation.
In a May 21, 2014 note, Tanya Fuhrman, a physician assistant, reported that appellant
had received a left hip joint injection.
By decision dated May 21, 2014, OWCP denied appellant’s claim. It found that he had
not established that the event occurred as alleged. OWCP further found that appellant did not
submit medical evidence sufficient to establish a diagnosed medical condition in connection with
the alleged event.
On June 11, 2014 Dr. Dowd noted that appellant returned for treatment of his left hip
arthritis issues. He diagnosed progressive left hip arthritis and noted that appellant was headed
towards a hip replacement.
On July 16, 2014 appellant requested reconsideration. In support thereof, he submitted a
May 5, 2014 MRI scan wherein Dr. Srineh Alle, a Board-certified radiologist, listed impressions
as advanced osteoarthritic changes involving the left hip with mild joint effusion and
degenerative labral tear, mild osteoarthritic changes involving the right hip with small
degenerative labral tear broadening of the head/neck junction bilaterally, and no evidence of hip
fracture or avascular necrosis.
Appellant also submitted a May 19, 2014 duty status report wherein Dr. Dowd indicated
that appellant had hip pain and arthritis and was placed on restrictions.

3

Docket No. 15-1688 (issued November 25, 2015).

2

In a May 21, 2014 note, Ms. Fuhrman noted that appellant underwent additional
treatment and was able to return to work on May 22, 2014.
By decision dated October 28, 2014, OWCP denied modification of the May 28, 2014
decision.
On November 2, 2014 appellant requested reconsideration of OWCP’s October 28, 2014
decision. In his letter, he explained that he was a letter carrier and was on his feet all day casing
mail and walking 7 to 10 miles a day six days a week while carrying a heavy satchel and
delivering mail. Appellant also noted that while in his vehicle there was a lot of in and out, up
and down, and twisting and turning. He stated that he had worked for the employing
establishment for 27 years. Appellant contended that the physical nature of his job took a serious
toll on his body as evidenced by the medical evidence.
By decision dated January 28, 2015, OWCP denied modification of the October 28, 2014
decision.
On March 9, 2015 appellant again requested reconsideration. He stated that, while at
work and delivering mail on uneven terrain, he stepped off a customer’s steps and while he was
starting to walk to the next house, he felt a groin pull, pop, and pain.
By decision dated June 4, 2015, OWCP determined that appellant had now met the
criteria for establishing that an incident occurred in the performance of his employment duties,
but found that the case should remain denied as appellant failed to submit a well-rationalized
medical narrative that discussed the causal relationship between his diagnosed condition of left
hip arthritis and the accepted employment incident of April 4, 2014. Appellant appealed to the
Board on August 5, 2015.
On November 25, 2015 the Board affirmed the June 4, 2015 decision. The Board
determined that appellant had failed to establish a causal relationship between the accepted
employment incident and a medical diagnosis.4
On January 18, 2016 appellant, through counsel, requested reconsideration. He asserted
that he had established a causal connection between his medical diagnoses including hip arthritis,
and the accepted employment incident. In support thereof, appellant submitted Dr. Dowd’s
medical reports dated from May 19 through August 24, 2014. In these reports, Dr. Dowd
discussed appellant’s recovery from his July 1, 2014 left total hip replacement. He indicated that
appellant had a rough postoperative course, noting that appellant was diagnosed with a
pulmonary embolism and six blood clots. Appellant also had a flare-up of his Crohn’s disease,
and suffered from abdominal pain and a collapsed lung. Dr. Dowd also noted that appellant
recently underwent a repeat ultrasound for the blood clots and was diagnosed with a blocked
artery on his right lower extremity.

4

Id.

3

By decision dated April 7, 2016, OWCP determined that the evidence of record was
insufficient to modify the prior decision, noting that the evidence was repetitious and that
appellant had not submitted any new evidence addressing causal relationship.
On November 16, 2016 appellant, through counsel, requested reconsideration. Counsel
argued that Dr. Dowd was informed of the work incident, made a diagnosis, and explained
causation. She argued that Dr. Dowd’s reports were of sufficient weight to establish the claim
and, as there was no contrary medical evidence, these reports should have at least established a
prima facie case, requiring further development of the medical evidence. Counsel contended
that work factors need not be the sole cause of an injury. She argued that the decision denying
appellant’s claim should be reversed. In support of the reconsideration request, counsel
submitted a May 5, 2014 report by Dr. Heather Moseley, a Board-certified family practitioner,
wherein she diagnosed severe osteoarthritis of the left hip.
By decision dated February 14, 2017, OWCP denied modification of the November 25,
2015 decision. It explained that the evidence of record continued to lack a physician’s
rationalized opinion which established a causal relationship been a diagnosis and the accepted
April 4, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is whether the employee
actually experienced the employment incident or exposure which is alleged to have occurred.6 In
order to meet his or her burden of proof to establish the fact that he or she sustained an injury in
the performance of duty, an employee must submit sufficient evidence to establish that he or she
actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.7

5

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

7

Linda S. Jackson, 49 ECAB 486 (1998).

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The second component of fact of injury is whether the employment incident caused a
personal injury and generally can be established only by medical evidence.8 The medical
evidence required to establish causal relationship is usually rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has failed to establish that his diagnosed hip conditions are
causally related to the accepted April 4, 2014 employment incident. The medical evidence of
record contains no reasoned medical explanation of how the specific employment incident of
April 4, 2014 caused or aggravated a groin or hip condition.10
Dr. Dowd noted that about seven weeks before appellant’s May 19, 2014 evaluation he
had an event where he had sudden significant pain in his groin and leg and that, by May 1, 2014,
he was unable to walk. He noted that a left hip MRI scan showed significant hip arthritis and
that appellant continued to have significant pain in his hip, joint, and groin. Dr. Dowd listed his
impression as femoroscetabular impingement with secondary degeneration inflammation. On
June 11, 2014 he noted that appellant had progressive left hip arthritis. Dr. Dowd indicated that
on July 1, 2014 appellant underwent a left total hip replacement. He noted that appellant had a
rough postoperative course. However, at no time did Dr. Dowd discuss how appellant’s
accepted employment incident of April 4, 2014 caused appellant’s diagnosed left hip conditions.
The mere recitation of patient history does not suffice for purposes of establishing causal
relationship between a diagnosed condition and the employment incident.11 Without explaining
physiologically how the accepted walking incident on April 4, 2014 caused or contributed to the
diagnosed conditions, Dr. Dowd’s reports are of limited probative value.12
Similarly, Dr. Moseley diagnosed severe osteoarthritis of the left hip, but gave no opinion
on causal relationship. The Board has found that medical evidence that does not offer any
opinion regarding the cause of the employee’s condition is of limited value on the issue of causal
relationship.13
8

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

9

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

10

A.C., Docket No. 16-0452 (issued October 27, 2017).

11

See J.G., Docket No. 17-1382 (issued October 18, 2017).

12

See A.B., Docket No. 16-1163 (issued September 8, 2017).

13

L.L., Docket No. 17-0908 (issued September 11, 2017).

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The remaining evidence is also insufficient to establish causal relationship. Dr. Alle
interpreted a May 5, 2014 MRI scan as showing advanced osteoarthritic changes involving the
left hip with mild joint effusion and degenerative labral tear broadening of the head/neck
junction. This diagnostic study is of limited probative value. Although Dr. Alle’s report
established a medical diagnosis, it did not address any relationship between these diagnoses and
appellant’s accepted injury of April 4, 2014.14 Diagnostic studies are of limited probative value
as they do not address whether the employment incident caused any of the diagnosed
conditions.15
Finally, appellant submitted reports from physician assistants. However, physician
assistants are not considered physicians under FECA, and therefore, their respective reports will
not suffice for purposes of establishing entitlement to FECA benefits.16
Because the medical reports submitted by appellant failed to address how the April 4,
2014 employment incident caused or aggravated a left shoulder condition, these reports are of
limited probative value and are insufficient to establish that the April 4, 2014 employment
incident caused or aggravated appellant’s diagnosed conditions.17
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.18 Appellant’s honest belief that the April 4, 2014
employment incident caused his medical conditions is not in question, but that belief, however
sincerely held, does not constitute the medical evidence to establish causal relationship.19
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 failed to meet his burden of proof to establish a left groin
or hip condition causally related to the accepted April 4, 2014 employment incident.

14

See G.M., Docket No. 14-2057 (issued May 12, 2015).

15

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

16

5 U.S.C. § 8101(2) (this subsection defines physicians as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law).
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under the FECA); Sean O’Connell, 56 ECAB 195 (2004)
(reports by physician assistants are not considered medical evidence as they are not considered physicians under the
FECA).
17

See Linda I. Sprague, 48 ECAB 386 (19797).

18

D.D., 57 ECAB 734 (2006).

19

H.H., Docket No. 16-0897 (issued September 21, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 14, 2017 is affirmed.
Issued: February 6, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Santa Ana, CA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-586
Issued: December 14, 2009

Case Submitted on the Record

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

JURISDICTION
On December 29, 2008 appellant filed a timely appeal from June 6 and December 11,
2008 merit decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 4, 2008 on the grounds that he had no continuing workrelated disability.
On appeal appellant contends that the position offered was not specific as to the amount
of standing and sitting required.
FACTUAL HISTORY
On March 7, 2007 appellant, then a 44-year-old special agent/criminal investigator, filed
a Form CA-1, traumatic injury claim, alleging that he injured his right upper extremity while

performing handgun qualifications. He stopped work that day. On April 26, 2007 the Office
accepted that appellant sustained a cervical strain and right shoulder strain. Appellant received
appropriate continuation of pay and compensation.1
Appellant came under the care of Dr. Gary E. Brazina, a Board-certified orthopedic
surgeon. In a March 14, 2007 report, Dr. Brazina noted the history of injury and a past medical
history of employment-related injuries to the right shoulder and neck in 2002 and 2004. He
provided findings on examination, diagnosed cervical sprain/strain, cervical radicular syndrome,
rule-out herniated disc, cervical spondylosis and right shoulder sprain. Dr. Brazina advised that
appellant was totally disabled.2 A May 23, 2007 cervical magnetic resonance imaging (MRI)
scan demonstrated a disc protrusion that compromised the C6 root at C5-6.3 In an August 8,
2007 report, Dr. Brazina diagnosed herniated nucleus pulposus of the cervical spine, cervical
degenerative joint disease, right shoulder sprain and cervical radicular syndrome.
On September 5, 2007 appellant filed a Form CA-2, occupational disease claim. He
stated that during his 20 years as a special agent he had been exposed to countless situations that
produced pain and traumatic impact on his right shoulder and neck, including physical and
firearms training, difficult arrests, being hit by a car in November 2002, a motor vehicle accident
in 2004 and the March 6, 2007 injury. In an October 3, 2007 form report, Dr. Brazina diagnosed
herniated cervical disc and advised that appellant was totally disabled.
On October 4, 2007 appellant was referred to Dr. Bunsri T. Sophon, a Board-certified
orthopedic surgeon, for a second opinion evaluation.4 By report dated October 16, 2004,
Dr. Sophon reviewed the statement of accepted facts and medical record and appellant’s past
medical history. He noted complaints of neck and right shoulder pain, radiating into the right
arm with thumb numbness. Dr. Sophon provided findings on physical examination including
decreased cervical spine and right shoulder range of motion and diminished right hand grip.
Upper extremity motor strength was normal. Sensory examination revealed diminished
sensation on the right thumb. Dr. Sophon diagnosed C5-6 disc extrusion with right C6 nerve
root radiculopathy and right shoulder strain. He advised that the conditions were employment
related and that appellant could return to light duty. In an attached work capacity evaluation,
Dr. Sophon advised that appellant could work eight hours daily with restrictions of two hours
reaching, pushing, pulling and lifting, no reaching above the shoulder and a 20-pound weight
restriction. In a supplementary report dated October 29, 2007, he provided further explanation as
to why appellant’s cervical condition was employment related. In an attached work capacity
1

Appellant has additional claims for injuries incurred on November 19, 2002 and June 24, 2004, accepted for soft
tissue injuries.
2

Appellant also submitted reports from Dr. David Velasquez, a chiropractor, and a June 24, 2004 report in which
Dr. Brazina described an employment-related motor vehicle accident that occurred that day. He diagnosed cervical
and thoracic sprain/strain and contusion of the left elbow.
3

In June 2007 appellant was referred for a second opinion evaluation. Due to a misunderstanding, he was not
examined. On September 4, 2007 the Office proposed a suspension of compensation for failure to attend the second
opinion evaluation. The decision was not finalized.
4

Dr. Sophon is also known as Dr. Bunsri Thanasophon.

2

evaluation, Dr. Sophon further restricted appellant, stating that he could sit, stand and walk for
six hours in an eight-hour day.
On November 29, 2007 appellant’s claim was accepted for cervical disc displacement
and cervical radiculopathy on the right. He was placed on the periodic rolls.
In January 2008, appellant was referred for vocational rehabilitation. In a January 6,
2008 report, Dr. David Velasquez, a chiropractor, noted appellant’s complaints of right shoulder
and neck pain and that he constantly dropped objects. He diagnosed cervical radiculopathy at
C6, cervical disc extrusion at C5-6, cervical myelopathy and double crush syndrome of the right
upper extremity secondary to cervical radiculopathy and ulnar neuropathy. Dr. Velasquez listed
restrictions to appellant’s activity of 5 to 10 pounds lifting or carrying with his right arm, 20
pounds with the left; no right arm pushing and up to 20 pounds pushing on the left; no reaching
or working overhead; pulling limited to 5 to 10 pounds on the right and 10 to 20 pounds on the
left for up to 15 minutes, sitting, standing, keyboard use and driving limited to up to 60 minutes,
after which appellant should lie down for 60 minutes, walking limited to 30 minutes, after which
he should lie down and reading seated limited to 30 minutes, 60 minutes while lying down. A
notation affixed to Dr. Velasquez’s report stated, “I concur” with an initialed signature.5
On February 21, 2008 the employing establishment offered appellant a modified position
as a duty agent. The position was described as desk duty, with no reaching above the shoulder or
lifting, pushing or pulling over 20 pounds.6 A conference was held on February 28, 2008
concerning the offered position with appellant, his attorney, two representatives from the
employing establishment, and an Office claims examiner. The offered position was discussed.
The employing establishment advised that appellant would retain the same pay and would work
behind bulletproof glass. While the position was temporary, it could be extended. The position
was further described as requiring loading a ream of paper into the printer and fax machine,
pulling on doors to assure they were locked and keyboard work. Appellant did not accept the
offered position because he wanted to have surgery before he returned to work. By letter dated
March 3, 2008, counsel contended that Dr. Velasquez’s January 6, 2008 report was cosigned by
Dr. Brazina and that he rejected the offered position based on the recommendation of his
physicians.
A second conference was held on March 6, 2008 with an injury compensation specialist
from the employing establishment, appellant’s vocational rehabilitation counselor and a senior
Office claims examiner. The job offer was modified to reflect duty of 0830 to 1700 with a half
hour for lunch. The position was at appellant’s current grade and step. It was ascertained that
the employing establishment would continue to pay appellant an average of 2 hours overtime
daily or 25 percent of salary, and therefore he would be required to work 10 hours daily and that
5

Although the identity of the signee is not readily apparent, when compared with signatures contained in the case
record, it appears to be that of Dr. Brazina.
6

The duties were specifically described as checking the general mailbox for messages on the receptionist and
duty telephone; check fax and printer for traffic and distribute accordingly; notify next agent of significant ongoing
operations; and notify of unscheduled changes in duty roster. In the evening appellant was to additionally perform a
security check, including checking rooms, safes and turning off coffee pots.

3

there were no plans to terminate him. On April 2, 2008 the employing establishment offered
appellant the modified-duty agent position with duty hours of 0830 to 1700 daily. On April 14,
2008 appellant declined the offered position, stating that it was outside the restrictions of
Dr. Velasquez, as cosigned by Dr. Brazina, and that the offered position was vague regarding the
number of hours required to perform each assigned duty.
On April 30, 2008 the Office notified appellant that, under the provisions of the Act,
section 8101 et seq., to deny compensation for wage loss for his claim it proposed the weight of
the medical evidence, as characterized by Dr. Sophon’s report, established that he could perform
the light-duty position.
On May 14, 2008 appellant, through his attorney, disagreed with the proposed
termination and submitted April 30, 2008 reports in which Dr. Ian Armstrong and Dr. Martin
Krell, Board-certified neurosurgeons, reviewed the history of injury. Appellant reported that his
right shoulder was injured in 2002 when an accused criminal ran into him with a car.
Drs. Armstrong and Krell noted complaints or right-sided neck pain radiating into the arm,
associated with numbness and tingling and provided findings on neurological examination.
Traumatic right C5-6 disc extrusion due to the March 6, 2007 employment injury, right upper
extremity radiculopathy and a 2002 right shoulder injury were diagnosed, and an anterior C5-6
discectomy and fusion were recommended. Drs. Armstrong and Krell concluded that appellant
was temporarily totally disabled. In a May 15, 2008 report, Dr. Brazina advised that he
concurred with the restrictions provided by Dr. Velazquez on January 6, 2008. He reiterated the
diagnoses and advised that appellant’s cervical degenerative disc disease and acute herniation at
C5-6 were caused by his employment. A May 16, 2008 MRI scan of the cervical spine
demonstrated a reduction in size of the disc extrusion at C5-6 and that the protrusion resulted in
severe right foraminal stenosis and a moderate degree of foraminal stenosis on the left.
By decision dated June 6, 2008, the Office terminated wage-loss compensation, effective
June 4, 2008.
On June 12, 2008 the Office referred appellant for a second opinion evaluation. In a
June 4, 2008 report, received by the Office on June 13, 2008, Dr. Armstrong reviewed
appellant’s MRI scans, provided findings on examination and diagnosed traumatic C5-6 disc
extrusion caused by the March 6, 2007 employment injury and objective right upper extremity
radiculopathy. He advised that appellant was totally disabled. A June 19, 2008 upper extremity
nerve conduction study (NCS) was normal. Electromyography (EMG) demonstrated right active
C6 denervation or clinical radiculopathy by electrodiagnostic criteria. By reports dated July 9,
2008, Dr. Armstrong noted the positive EMG test findings and that appellant was now
complaining of right lower extremity weakness and low back pain. He recommended an MRI
scan of the lumbar spine and advised that appellant required urgent cervical spine surgery and
was totally disabled.
On July 30, 2008 Dr. Sophon reviewed the medical record and appellant’s complaint of
constant sharp pain in his neck and right shoulder, radiating into the right arm and hand, made
worse with prolonged sitting, standing, walking, bending and lifting. He provided findings on
physical examination including decreased cervical spine and right shoulder range of motion and
diminished grip strength on the right. Motor strength was within normal limits and sensation
4

was diminished on the lateral aspect of the right arm and hand. Dr. Sophon diagnosed C5-6 disc
extrusion with right C6 nerve root radiculopathy and right shoulder strain. He reviewed the
offered limited-duty position and advised that the description did not specify the physical
requirements of the position in standing, walking or sitting. Dr. Sophon advised that appellant
could perform the described duties if the physical requirements did not exceed the work
restrictions he reported in an attached work capacity evaluation, in which he advised that
appellant could work eight hours a day with permanent restrictions of six hours sitting, walking,
standing; two hours reaching, pushing, pulling and lifting 20 pounds, and no reaching above the
shoulder. On August 28, 2008 Dr. Armstrong performed anterior cervical discectomy at C5-6
with lateral decompression and foraminotomy. Appellant received wage-loss compensation
effective August 29, 2008 and was returned to the periodic rolls.
On September 8, 2008 appellant, through his attorney, requested reconsideration of the
June 6, 2008 decision, arguing that the offered modified-duty position was not sufficiently
defined, as supported by Dr. Sophon’s August 13, 2008 report, and that he was in agreement that
cervical surgery was necessary based on objective findings of diminished sensation in the right
upper extremity, weakness of handgrip, restriction of motion of the cervical spine and right
shoulder, an abnormal MRI scan, and an abnormal EMG study. Counsel contended that the
Office could not terminate appellant’s compensation without first determining that the light-duty
position was suitable, noting that the Office had, in fact, found the position not suitable because
it was not a permanent position. He argued that the offered position did not provide the specific,
physical requirements of the tasks listed and that, at a minimum, a conflict in medical evidence
existed regarding appellant’s work restrictions.
Dr. Armstrong submitted reports describing appellant’s postoperative condition and
advising that he could not work. On October 8, 2008 he noted that appellant had subjective
lumbar radiculopathy of the right lower extremity and recommended lumbar MRI scan and lower
extremity EMG and NCS. A November 20, 2008 MRI scan of the lumbar spine demonstrated
Grade 1 anterolisthesis at L5-S1 with bilateral pars defects resulting in a moderate to severe
degree of foraminal stenosis.
By decision dated December 11, 2008, the Office noted that temporary light-duty
assignments do not require an analysis of suitability and denied modification of the June 6, 2008
decision.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8

7

Jaja K. Asaramo, 55 ECAB 200 (2004).

8

Id.

5

ANALYSIS
The Board finds that the Office did not meet its burden of proof to terminate his
compensation benefits effective June 4, 2008. The Office did not follow proper procedures to
determine that the modified job offered to appellant was suitable. Office procedures at Chapter
2.814 provide guidance for the development of claims pertaining to offers of modified
employment by the employing establishment and the acceptance or rejection of such offers.9 On
review of a job offer prepared by the employing establishment, the Office may propose to
terminate a recipient’s wage-loss compensation under section 8106 of the Federal Employees’
Compensation Act.10 The April 30, 2008 notice given in this case, however, failed to do so. In
order to properly terminate appellant’s compensation under section 8106 of the Act, the Office
must provide appellant notice of its finding that an offered position is suitable and give him 30
days to either accept or provide reasons for declining the position.11 The April 30, 2008 notice
merely stated that the evidence established that appellant was capable of performing light duty
and that light duty was available. Appellant responded on May 14, 2008, objecting to the
proposed termination and submitting additional medical evidence in which Drs. Armstrong,
Krell and Brazina advised that he remained totally disabled. Under Office procedures, if the
Office deemed this refusal unacceptable, appellant should have been provided an additional 15
days to accept the offered position.12 Instead, on June 6, 2008 the Office terminated
compensation without citation to any statutory authority for this action. Section 8106 is a
penalty provision which will be narrowly construed on appeal.13 Appellant’s entitlement to
wage-loss compensation has been significantly impaired without the proper procedural due
process notice or protections issued under section 8106. The notice and termination decision in
this case appear as aberrations to established Office procedures and the well-defined precedent of
the Board.14

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (July 1997)
10

5 U.S.C. § 8106. Section 8106(c)(2) of the Act provides in pertinent part, “A partially disabled employee who
... refuses or neglects to work after suitable work is offered … is not entitled to compensation.” 5 U.S.C. § 8106.
To prevail under this provision, the Office must show that the work offered was suitable and must inform the
employee of the consequences of refusal to accept such employment. An employee who refuses or neglects to work
after suitable work has been offered has the burden of showing that such refusal to work was justified. Janice S.
Hodges, 52 ECAB 379 (2001). Section 8106(c) will be narrowly construed as it serves as a penalty provision which
may bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of employment.
Gloria G. Godfrey, 52 ECAB 486 (2001).
11

Federal (FECA) Procedure Manual, supra note 9; see Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on
recon., 43 ECAB 818 (1992).
12

Federal (FECA) Procedural Manual, supra note 9 at Chapter 2.814.4(d)(1).

13

J.F., 60 ECAB ___ (Docket No. 08-439, issued October 24, 2008).

14

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.414.4; Maggie L. Moore, supra note 11.

6

CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation effective June 4, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions Office of Workers’ Compensation
Programs dated December 11 and June 6, 2008 be reversed.
Issued: December 14, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.R., Appellant
and
U.S. POSTAL SERVICE, EAST CLEVELAND
FACILITY, East Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1149
Issued: December 27, 2007

Case Submitted on the Record

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

JURISDICTION
On March 22, 2007 appellant, through counsel, filed a timely appeal from a February 27,
2007 decision of the Office of Workers’ Compensation Programs’ hearing representative
affirming the denial of his recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501(d)(3),
the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability
beginning January 4, 2006.
FACTUAL HISTORY
On June 21, 2005 appellant, then a 34-year-old letter carrier, sustained a lumbar strain
while bending down to pick up a letter which had blown under a postal vehicle. The Office
accepted the claim for a lumbar strain and paid compensation for the period June 21 to 24, 2005.
Appellant was released to work with restrictions on June 30, 2005.

In a report dated January 4, 2006, Dr. Daniel Breitenbach, a treating physician, diagnosed
lumbosacral strain with spasm. He reported that appellant stated that “he coughed last night and
threw his back and it spasmed over the spot that he has been injured.” In an accompanying
disability report, Dr. Breitenbach diagnosed lumbar strain and stated that appellant was totally
disabled for the period January 4 to 9, 2006.
In reports dated January 16 and 23, 2006, Dr. Breitenbach diagnosed lumbosacral strain
with spasm. Appellant reported pain in his back. In accompanying disability reports dated
January 16 and 23, 2006, Dr. Breitenbach diagnosed lumbar strain and stated that appellant was
totally disabled for the period January 16 to February 6, 2006.
On February 6, 2006 appellant filed a claim for compensation (Form CA-7) for the period
January 21 to February 3, 2006.
On February 6, 2006 Dr. Breitenbach noted that appellant continued to have complaints
of pain in his lower back and diagnosed lumbar strain with spasm. He concluded that appellant
was totally disabled for the period February 6 to 27, 2006 on an accompanying disability form.
In a February 10, 2006 letter, the Office noted that it had received his claim for lost
wages and informed him that the evidence was insufficient to support his claim. The Office
advised him of the medical and factual evidence required to support his claim for lost wages.
Appellant was also informed of the evidence required if he had been working in a light-duty job
at the time of his work stoppage.
In a January 19, 2006 report, Dr. Jerome B. Yokiel, an examining Board-certified
anesthesiologist, noted that appellant was referred due to his “chronic low back pain with
radiation to the buttock which he has had since [June] 21, [20]05” and that he has had back
problems since a 2003 injury. Dr. Yokiel diagnosed lumbar sprain. A physical examination
revealed lumbosacral tenderness, no lumbosacral triggers or spasms and increased pain with
lumbosacral range of motion and straight leg raising.
In a February 15, 2006 report, Dr. Breitenbach noted that he had been treating appellant
for a lumbosacral sprain which had occurred about five months previously. He stated that
appellant saw him on January 4, 2006 due to complaints “of increased pain in his back as a result
of him coughing on the previous night, January 3, 2006, and had thrown his back into spasm.”
Appellant reported a pain rating of 8 out of 10. Dr. Breitenbach related that since January 3,
2006 appellant has been disabled from working due to his being “unable to carry mail due to the
palpable paralumbar muscle spasm that he has had since that time.” A March 13, 2006 chart
note by Dr. Breitenbach diagnosed lumbosacral strain with spasm.
By decision dated March 22, 2006, the Office denied appellant’s claim for a recurrence of
disability. It found that the medical evidence submitted by appellant supported that his disability
beginning January 3, 2006 was due to an intervening event, appellant’s coughing which he stated
aggravated his condition. The Office also found the record was devoid of any medical opinion
explaining how appellant’s condition had worsened such that he was totally disabled from
performing his light-duty job.

2

The Office subsequently received appellant’s claim for compensation (Form CA-7) for
the period February 25 to March 17, 2006.
On March 27, 2006 Dr. Juna Tsao, a treating Board-certified family medicine
practitioner, diagnosed lumbosacral strain with spasm. He noted that appellant continued to have
complaints of pain in the lower back “causing a band and it does shoot down into his left buttock
at times.” A physical examination revealed “some minimal tenderness to palpitation of the
paralumbar musculature.” Under the “plan” portion of the report, the physician recommended
medication and physical therapy continue and that appellant remain off work. In a March 27,
2006 duty status report (Form CA-17), Dr. Tsao diagnosed lumbosacral strain and indicated that
appellant was totally disabled from working.
By letter dated April 4, 2006, appellant’s counsel requested an oral hearing before an
Office hearing representative which was held on January 22, 2007.
On April 10, 2006 Dr. Breitenbach noted that appellant had been hospitalized the
previous week with pneumonia. Appellant continued to have “some spasms in his back and
tightness that radiate into his buttock.” Dr. Breitenbach diagnosed lumbosacral strain with
spasm and recommended appellant continue with his physical therapy and medication. In an
April 10, 2006 duty status report (Form CA-17), Dr. Breitenbach diagnosed lumbosacral strain
and concluded that appellant was totally disabled from working.
Dr. Breitenbach, in May 1, 2006 chart notes, diagnosed lumbosacral strain with spasm
and recommended that appellant continue with his medication and physical therapy. In a May 1,
2006 duty status report (Form CA-17), Dr. Breitenbach diagnosed lumbosacral strain and
concluded that appellant was totally disabled from working.
In chart notes dated May 12 and 19 and June 5, 2006, Dr. Breitenbach diagnosed
lumbosacral strain with spasm and recommended appellant continue with his medication and
physical therapy. In a May 12, 2006 duty status report, Dr. Breitenbach released appellant to
return to work effective May 15, 2006 for four hours per day with restrictions.
In a May 31, 2006 report, Dr. Breitenbach noted that appellant had returned to work with
restrictions for four hours per day on May 15, 2006. He opined that appellant continued to
require physical therapy due to the continued “palpable muscle spasm in his lower back.”
On April 26, 2006 the Office referred appellant for a second opinion evaluation to
determine whether he continued to have residuals of his accepted lumbar strain and whether his
current disability was due to his accepted employment injury. In a June 3, 2006 report, Dr. Alan
Wilde, a second opinion Board-certified orthopedic surgeon, diagnosed a lumbar strain which he
opined had resolved. In support of this conclusion, he noted that he “expected a lumbar strain to
have resolved within a period of six to eight weeks” and that “disc bulges are common in the
general population.” Dr. Wilde also concluded that appellant was capable of working eight
hours per day with no lifting more than 30 pounds. He opined that the January 3, 2006 coughing
episode did not cause or aggravate his accepted lumbar strain. Dr. Wilde noted that it was “not
uncommon for a patient to experience periodic back spasms even several times a year with such
minimal activity as coughing or sneezing.”

3

On June 19, 2006 appellant filed a claim for compensation for lost wages for the periods
May 15 to 26, 2006 and May 27 to June 9, 2006. Appellant submitted a time analysis form for
the period May 15 to June 9, 2006 claiming 71.94 hours.
In a June 19, 2006 chart note, Dr. Breitenbach diagnosed lumbosacral strain with spasm.
He noted that a recent magnetic resonance imaging (MRI) scan revealed “a L5-S1 dis[c]
desiccation with left posterior lateral protrusion” which caused “only mild dorsal displacement of
the traversing left S1 nerve root.”
Dr. Breitenbach, in chart notes dated July 17, August 9 and September 6, 2006,
diagnosed lumbosacral strain. In a July 21, 2006 duty status report, he released appellant to
work eight hours per day with restrictions.
In an August 10, 2006 addendum, Dr. Wilde responded to the Office’s request regarding
appellant’s condition and restrictions. He stated that the restriction on lifting he noted in his
prior report was a preventative measure and that continued physical therapy was not needed.
In an August 26, 2006 progress note, Dr. Yokiel diagnosed lumbar strain and noted that
appellant continued to have low back pain complaints.
By decision dated February 27, 2007, the Office hearing representative affirmed the
denial of appellant’s recurrence claim.1 He found that the coughing incident on January 3, 2006
was an intervening incident and, thus, insufficient to establish a recurrence of disability.
LEGAL PRECEDENT
Section 10.5(x) of the Office regulations defines recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness, without an intervening injury or
new exposure to the work environment that caused the illness.2 If the disability results from new
exposure to work factors, the legal chain of causation from the accepted injury is broken, and an
appropriate new claim should be filed.3 This term also means an inability to work that takes
place when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn, (except when such

1

The Board notes that, following the February 27, 2007 hearing representative’s decision, the Office received
additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c);
Donald R. Gervasi, 57 ECAB ___ (Docket No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB
373 (2003).
2

20 C.F.R. § 10.5(x). See R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.b(a)(1) (May 1997);
Donald T. Pippin, 54 ECAB 631 (2003).

4

withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.4
This burden of proof requires that a claimant furnish medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to the employment injury and supports that conclusion
with medical reasoning.5 Where no such rationale is present, the medical evidence is of
diminished probative value.6
ANALYSIS
The Office accepted that appellant sustained a lumbar sprain resulting from bending
down to pick up a letter on June 21, 2005. He was released to limited duty working eight hours
as of June 30, 2006. Appellant filed claims for wage-loss compensation which the Office treated
as a claim for a recurrence of disability beginning January 3, 2006 due to his accepted June 21,
2005 injury. Appellant thus, has the burden of providing rationalized medical evidence to
establish the causal relationship asserted.7
The Board finds the medical opinion evidence insufficient to show that appellant’s
recurrence of disability was causally related to his accepted June 21, 2005 employment injury.
The record contains no rationalized medical opinion evidence addressing the alleged recurrence
and appellant’s accepted lumbar strain. Dr. Wilde, a second opinion Board-certified orthopedic
surgeon, opined that appellant’s lumbar strain had resolved. He also concluded that the coughing
incident did not cause or aggravate appellant’s accepted lumbar condition. Dr. Tsao’s March 27,
2006 duty status report does not mention the alleged recurrence of appellant’s disability or
contain any medical rationale. Similarly, the February 10, 2006 report and April 26, 2006
progress notes by Dr. Yokiel diagnose a lumbar strain, but do not mention appellant’s alleged
recurrence of disability or contain any medical rationale. In a report dated January 4, 2006,
Dr. Breitenbach diagnosed lumbosacral strain with spasm, which he attributed to appellant’s
coughing the night before.8 In an accompanying disability report, he diagnosed lumbar strain
and stated that appellant was totally disabled for the period January 4 to 9, 2006. The patient
progress notes from Dr. Breitenbach, dated January 4 to September 6, 2006, do not discuss the
alleged injury beyond noting the injury date of June 21, 2005. Dr. Breitenbach diagnosed a
lumbosacral strain, but failed to explain how appellant’s condition was causally related to the
4

J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006); see also Terry R. Hedman, 38 ECAB
222 (1986).
5

Ronald A. Eldridge, 53 ECAB 218, 221 (2001).

6

Mary A. Ceglia, 55 ECAB 626 (2004).

7

Ricky S. Storms, 52 ECAB 349 (2001).

8

The Board notes that appellant’s coughing would not, by itself, exclude the possibility that his disability on and
after January 4, 2006 was due to a natural, progressive worsening of his accepted employment injury. See Mary A.
Wright, 48 ECAB 240, 243 (1996). However, the medical evidence is insufficient to establish a causal relationship
between the claimed total disability and the accepted employment injury.

5

accepted employment injury. None of his reports contain any medical rationale for his opinion
that appellant was totally disabled due to his employment injury. The Board has long held that
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.9 Thus, the Board finds
that, in the absence of relevant medical evidence, appellant has not met his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on or after January 4, 2006 causally related to his June 21, 2005 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 27, 2007 is affirmed.
Issued: December 27, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

6