United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1604
Issued: December 18, 2014

Case Submitted on the Record

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

JURISDICTION
On July 15, 2014 appellant, through counsel, filed a timely appeal from a May 8, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established left knee and lumbar conditions causally
related to an accepted right knee injury.
FACTUAL HISTORY
OWCP accepted that on November 16, 2009 appellant, then a 59-year-old computer
assistant, sustained a torn right medial meniscus when he tripped on a rotted restroom floor.
1

5 U.S.C. § 8101 et seq.

Appellant did not stop work at the time of injury. He submitted treatment records regarding a
1985 right knee injury and June 1, 2001 injuries to the left hand and left leg. Appellant
underwent a right knee arthroscopy on June 16, 1989 to repair a lateral meniscal tear.2 OWCP
accepted a February 1, 2005 lumbar strain under File No. xxxxxx498. Imaging studies from
February 21, 2003 to March 24, 2009 showed degenerative disc disease with osteophytes and
mild disc bulging throughout the thoracic and lumbar spine.
Dr. Rana T. Pathi, an attending Board-certified orthopedic surgeon, provided reports
from January 19 to May 7, 2010, noting ongoing right knee symptoms and a normal left knee.
On April 15, 2010 he diagnosed “lumbar syndrome.” Dr. Pathi requested that OWCP authorize
an evaluation of appellant’s left knee and lumbar spine.
On March 2, 2010 appellant filed a claim for recurrence of disability (Form CA-2a)
asserting that, when he stood up at work on February 5, 2010, he experienced a sharp pain in his
right knee radiating upward into the lumbar spine, then downward into his left knee. In a May 4,
2010 letter, OWCP advised appellant of the type of evidence needed to establish his claim for
left knee and low back injuries, including a statement from his attending physician explaining
how and why the accepted right knee injury would cause the claimed conditions. Appellant was
afforded 30 days to submit such evidence.
Dr. Pathi performed right knee arthroscopy on May 11, 2010, with partial medial and
lateral meniscectomies, abrasion of chondromalacia, lysis of adhesions, and thermal shrinkage of
a partial tear of the anterior cruciate ligament. In a May 26, 2010 report, he diagnosed multilevel
lumbar and thoracic degenerative disease. Dr. Pathi submitted periodic reports through
February 2, 2011 diagnosing continued right knee symptoms, left knee pain, and low back pain.3
In reports from March 14 to November 14, 2011, he stated that appellant experienced left knee
and lumbar pain following the May 11, 2010 right knee surgery as he was overcompensating for
a weakened right knee.4
In a February 7, 2012 letter, counsel requested that OWCP expand appellant’s claim to
include a left knee condition. He provided a July 14, 2012 magnetic resonance imaging (MRI)
2

A May 5, 2009 electromyography (EMG) study showed bilateral peripheral polyneuropathy of the lower
extremities.
3

April 29 and June 14 and 18, 2010 imaging studies showed degenerative osteophytes and disc bulges throughout
the thoracic and lumbar spine.
4

Appellant claimed compensation for total disability from May 11 to December 2, 2010. In an August 17, 2011
letter, OWCP advised him of the additional medical evidence needed to establish his claim for compensation,
including a report from his attending physician explaining how and why the accepted right knee injury continued to
disable him for work. Appellant remained off work through May 2013 and continuing. On October 19, 2011 he
claimed a schedule award. Appellant submitted a September 22, 2011 report from Dr. Jacob E. Tauber, an attending
Board-certified orthopedic surgeon, who found a 48 percent impairment of the right lower extremity due to primary
and patellofemoral arthritis, according to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment. In a November 14, 2011 report, Dr. Pathi offered a 20 percent impairment of
the right lower extremity. An OWCP medical adviser reviewed the record and calculated a 12 percent impairment
of the right lower extremity, explaining that appellant’s physicians misapplied the A.M.A., Guides. By decision
dated January 30, 2012, OWCP granted appellant a schedule award for a 12 percent impairment of the right leg.

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scan of the left knee showing severe chondromalacia and degenerative changes. The July 16,
2012 lumbar imaging studies showed osteophytes at L3-4 and mild disc space narrowing at
L5-S1.
On January 30, 2013 OWCP obtained a second opinion from Dr. Ronny G. Ghazal, a
Board-certified orthopedic surgeon, who reviewed the medical record and a statement of
accepted facts. On examination, he found full motion of both knees with no instability,
arthroscopic portal scars on both knees, a normal neurologic examination of both lower
extremities, a full range of motion in the lumbar spine, and no lumbar spasm or tenderness.
Dr. Ghazal diagnosed bilateral patellofemoral compression syndrome, a partial tear of the right
anterior cruciate ligament, status postarthroscopy of the left knee, status postmultiple
arthroscopies of the right knee, chronic mechanical low back pain superimposed on underlying
spinal stenosis, and diffuse degenerative changes of the lumbar and thoracic spine. He explained
that, while it was possible that overcompensation following right knee surgery caused a
temporary increase in left knee and lumbar symptoms, this did not result in organic changes to
the left knee or lumbar spine. Dr. Ghazal found that appellant did not require additional
treatment. He noted that appellant continued to have residuals of the accepted right knee injury.
In an April 11, 2013 addendum report, Dr. Ghazal emphasized that appellant’s left knee and
lumbar symptoms did not indicate any organic change in his degenerative disc disease or left
knee arthritis. He explained that appellant had been symptomatic for many years prior to the
accepted right knee injury. The left knee and lumbar conditions remained unrelated to the
accepted right knee injury.
In a March 13, 2014 letter, counsel again requested that OWCP expand the claim to
include a left knee and lumbar conditions. He submitted June 3 and 14, 2013 reports from
Dr. Pathi opining that overcompensating due to the right knee injury aggravated appellant’s
preexisting left knee and low back symptoms. Dr. Tauber stated on August 29, 2013 that
appellant’s left knee condition was possibly caused by appellant’s “extensive duties over the
years,” then aggravated after the right knee surgery.
In an April 8, 2014 letter, OWCP advised counsel and appellant of the type of additional
evidence needed to establish his claim for a left knee and lumbar conditions, including a report
from appellant’s attending physician explaining how and why the accepted right knee injury
would cause the claimed conditions. It afforded appellant 30 days to submit such evidence.
Appellant provided an April 16, 2014 report from Dr. Tauber, opining that appellant’s
work duties, including prolonged standing and working in awkward positions, caused a
cumulative left knee condition.
By decision dated May 8, 2014, OWCP denied appellant’s claim for left knee and lumbar
conditions on the grounds that causal relationship was not established. It accorded the weight of
the medical evidence to Dr. Ghazal, who explained clearly that appellant’s left knee and low
back symptoms were unrelated to work factors. OWCP noted that Dr. Ghazal’s report
outweighed Dr. Tauber’s inference that appellant’s left knee symptoms were due to cumulative
trauma.

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LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.5
When an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury.6 To establish a causal relationship between the condition
claimed, as well as any attendant disability and the employment event or incident, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a causal relationship.7 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.8
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
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
Neither the fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.10
ANALYSIS
OWCP accepted that appellant sustained a torn right medial meniscus. On March 2, 2010
appellant filed a claim for his left knee and lumbar symptoms on and after a February 5, 2010
work incident. Counsel submitted February 7, 2012 and March 13, 2014 letters requesting that
OWCP expand the claim to include a left knee, and lumbar conditions.
In support of his claim, appellant submitted reports from Dr. Pathi, an attending Boardcertified orthopedic surgeon, who performed right knee arthroscopy on May 11, 2010. However,
he found no abnormalities of the left knee in reports from January 19 to May 7, 2010. Dr. Pathi
diagnosed lumbar syndrome on April 15, 2010, but did not specify a cause. He first proposed a
5

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

6

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

7

Jennifer Atkerson, 55 ECAB 317 (2004).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000).

10

Ernest St. Pierre, 51 ECAB 623 (2000).

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cause for these symptoms on March 14, 2011, when he opined that overcompensation following
the May 11, 2010 surgery aggravated preexisting left knee and lumbar symptoms. Dr. Pathi
reiterated this opinion on June 3 and 14, 2013. However, he did not explain the medical reasons
that the accepted right knee injury would cause or aggravate a left knee or lumbar condition.
This lack of rationale is particularly problematic considering appellant’s complex medical
history, including a June 16, 1989 right knee arthroscopy, a February 1, 2005 lumbar strain, and
degenerative disc disease from 2003 onward. Dr. Pathi’s opinion is therefore insufficient to meet
appellant’s burden of proof.11
Appellant also provided reports from Dr. Tauber, an attending Board-certified orthopedic
surgeon, dated from September 22, 2011 to April 16, 2014. Dr. Tauber diagnosed degenerative
arthritis of the left knee. He attributed the condition variously to the accepted right knee injury
and to cumulative trauma due to his “extensive duties over the years.” The equivocal nature of
this opinion diminishes its probative value.12 Although imaging studies document both lumbar
degenerative disc disease and degenerative arthritis of the left knee, Dr. Tauber did not explain a
medical connection between the study and the accepted injuries.
The Board finds that OWCP properly accorded the weight of the medical evidence to
Dr. Ghazal, a Board-certified orthopedic surgeon and second opinion physician. Dr. Ghazal
based his opinion on a thorough clinical examination, a review of the medical record, and on the
statement of accepted facts. He explained that appellant’s left knee and lumbar symptoms did
not signal an organic change in preexisting degenerative disc disease or degenerative arthritis.
Also, appellant’s left knee and lumbar spine were symptomatic for many years prior to the
accepted right knee injury. Dr. Ghazal noted that appellant did not require treatment of the left
knee or lumbar spine as there were no physical changes caused by the right knee injury, he did
not require additional treatment.
OWCP advised appellant on May 4, 2010 and April 8, 2014 of the necessity of
submitting a statement from his attending physician explaining the medical reasoning for
supporting a causal relationship between the accepted right knee injury and conditions of the left
knee and lumbar spine. However, appellant did not submit such evidence. Therefore, OWCP’s
May 8, 2014 decision was proper under the law and circumstances of this case.
On appeal, counsel asserts that OWCP should have expanded the claim to accept left
knee and lumbar conditions, based on the opinions of Dr. Pathi and Dr. Tauber. As set forth
above, neither Dr. Pathi nor Dr. Tauber explained how and why the accepted right knee injury
would cause or aggravate a left knee or lumbar condition. Alternatively, counsel argues that
there is a conflict of medical opinion between Dr. Ghazal and appellant’s physicians regarding
the etiology of the lumbar and left knee conditions. The Board notes that Dr. Ghazal presented
extensive medical rationale, based on the complete medical record and a statement of accepted
facts, explaining why appellant’s preexisting left knee and lumbar conditions were not altered or
accelerated by the accepted right knee injury. Dr. Ghazal’s opinion is of superior probative
quality to those of Dr. Pathi and Dr. Tauber, who did not explain why they believed the right
11

Deborah L. Beatty, 54 ECAB 340 (2003).

12

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

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knee injury caused or aggravated appellant’s left knee or lumbar conditions. Therefore, there is
no conflict of medical opinion.
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 did not establish that he sustained left knee or lumbar
spine conditions causally related to an accepted right knee injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2014 is affirmed.
Issued: December 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, 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,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 18-0581
Issued: October 3, 2018

Case Submitted on the Record

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

JURISDICTION
On January 25, 2018 appellant, through counsel, filed a timely appeal from a November 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.

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 his burden of proof to establish a lumbar condition
causally related to the accepted October 15, 2014 employment incident.
FACTUAL HISTORY
On October 17, 2014 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, while at work on October 15, 2014, he sustained a back injury
when lifting a caster and felt pain in his lower back and legs. He notified his supervisor, stopped
work, and received initial medical care on the date of injury. In support of his claim, appellant
submitted Brooklyn Hospital Center discharge instructions documenting treatment on
October 15, 2014.
In an October 27, 2014 attending physician’s report (Form CA-20), Dr. Alexandre
De Moura, a Board-certified orthopedic surgeon, reported that appellant experienced low back and
neck pain after lifting a heavy object on October 15, 2014. He diagnosed low back pain, lumbar
radiculitis, and cervicalgia. Dr. De Moura checked the box marked “yes” to indicate that the
condition was caused or aggravated by the employment activity, noting that appellant’s history,
clinical examination, and symptoms were consistent with the employment incident described.
By development letter dated November 6, 2014, OWCP informed appellant that the
evidence of record was insufficient to establish his traumatic injury claim. Appellant was advised
of the type of medical and factual evidence needed to establish his claim and was provided a
questionnaire for completion. OWCP afforded him 30 days to submit the necessary evidence.
In an October 23, 2014 medical report, Dr. De Moura reported that appellant sustained an
employment injury on October 15, 2014 when he was lifting a heavy object which “jerked him,”
causing him to develop symptomology. He provided findings on physical examination,
recommended physical therapy, and restricted appellant from returning to work.
In a November 6, 2014 medical report, Dr. Joseph Cardinale, Board-certified in pain
medicine, reported that appellant’s injury occurred on October 15, 2014 while at work as a letter
carrier when he was lifting casters of mail. He reported no preexisting conditions or pertinent past
medical history. Dr. Cardinale diagnosed lumbago, lumbar herniated nucleus pulposus, lumbar
radiculopathy, and cervicalgia, restricting appellant from returning to work. He explained that the
incident described by appellant was the competent medical cause of the injury, his complaints were
“consistent with the injury, and the history of injury was consistent with his objective findings.”
In a December 3, 2014 medical report, Dr. Andrew Tarleton, a Board-certified orthopedic
surgeon, reported that appellant was injured on October 15, 2014 while working as a letter carrier
when he was lifting a caster and felt a pinch on his right side and felt pain and nausea. Appellant
complained of pain in the neck, lower back, and legs. He reported that Dr. Cardinale had ordered
magnetic resonance imaging (MRI) scans which were not yet completed. Dr. Tarleton noted that
appellant had MRI scans of the lumbar and cervical spine from 2009. The 2009 cervical spine
study showed diffuse hydration loss and posterior disc bulges impressing on the thecal sac from
C2-3 through C6-7. Dr. Tarleton reported that the lumbar spine MRI scan revealed multilevel disc

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issues as well. He stated that appellant was not working and this problem had been present for
two months. Dr. Tarleton also noted that he had this problem before, having started in May 2009.
He reviewed x-rays of the cervical and lumbar spine and provided findings on physical
examination. Dr. Tarleton diagnosed lumbago, lumbar herniated nucleus pulposus, lumbar
radiculopathy, and cervicalgia.
By decision dated December 9, 2014, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the October 15, 2014 employment incident
occurred as alleged. It noted that he failed to respond to the questionnaire that was sent with the
November 6, 2014 development letter.
On December 30, 2014 appellant requested an oral hearing before an OWCP hearing
representative.
In a December 7, 2014 diagnostic report, Dr. Linda Harkavy, a Board-certified radiologist,
reported that a lumbar spine MRI scan revealed L2-3 mild disc bulging and minimal osteophyte
with encroachment upon the thecal sac and the right lateral recess, L4-5 disc degeneration with a
shallow desiccated disc herniation with encroachment upon the thecal sac and mild recess
narrowing, and L5-S1 disc degeneration with a small desiccated disc herniation favoring the left
with narrowing of the left lateral recess and neural foramen with mild encroachment upon both
foraminal nerve roots.
In medical reports dated December 10, 2014 to April 29, 2015, Dr. Tarleton noted
appellant’s complaints of back and leg pain and provided findings on physical examination. He
reported that a lumbar MRI scan revealed L2-3 mild disc bulging and disc degeneration at L4-5
and L5-S1. Appellant was not yet approved for a cervical spine MRI scan. Dr. Tarleton diagnosed
lumbago, lumbar herniated nucleus pulposus, lumbar radiculopathy, and cervicalgia. He opined
that with regard to workers’ compensation, lifting a caster could certainly hurt the lower back and
lead to disc disease, muscle issues, or an exacerbation of any underlying condition in the lumbar
spine that could result in persistent pain, especially if the caster is overweight. A December 10,
2014 Form CA-20 was also submitted.
A hearing was held on April 16, 2015, during which appellant testified in support of his
claim. He reported that he was taken to the hospital via ambulance immediately following his
injury. Appellant submitted a safety hazard report explaining that the canisters they were required
to lift were past the required weight limits. He further reported that he had a lifting injury six years
prior, but it was nothing like what had occurred after this work injury. Appellant also reported
that he was in a car accident seven years prior which resulted in one week of missed work and
temporary light duty. In support of his claim, appellant submitted witness statements from
coworkers attesting to the circumstances surrounding the October 15, 2014 incident.
By decision dated July 6, 2015, an OWCP hearing representative affirmed the December 9,
2014 decision as modified, finding that appellant had established that the October 15, 2014
employment incident occurred as alleged, but that the evidence of record was insufficient to
establish that his diagnosed condition was causally related to the accepted October 15, 2014
employment incident.

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On October 9, 2015 appellant requested reconsideration of the July 6, 2015 decision. He
argued that Dr. Tarleton’s reports, diagnostic testing, and witness statements established his
traumatic injury claim.
In a July 30, 2015 diagnostic report, Dr. Adam Landskowsky, a Board-certified diagnostic
radiologist, reported that an x-ray of appellant’s lumbar spine revealed L3-4 and L4-5 grade 1
degenerative anterolisthesis and L3 to S1 degenerative spondylosis with facet arthrosis. He
reported that an x-ray of the cervical spine revealed straightening of the normal cervical lordosis,
multilevel facet arthrosis, and C5-6 and C6-7 degenerative disc disease.
A partial medical report dated August 12, 2015 was also submitted from Dr. Tarleton.
Dr. Tarleton diagnosed cervicalgia, lumbago, and lumbar radiculopathy. He opined that lifting a
caster can certainly hurt the lower back and lead to disc disease, muscle issues, or an exacerbation
of any underlying condition in the lumbar spine that could result in persistent pain, especially if
the caster is overweight. Dr. Tarleton reported that in this case, lifting the caster coincided
chronologically with the onset of symptoms and therefore, “it appeared” that the overweight caster
was responsible.
By decision dated November 14, 2017, OWCP denied modification of the July 6, 2015
decision, finding that the evidence of record was insufficient to establish that appellant’s diagnosed
lumbar condition was causally related to the accepted October 15, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on 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 that the employee actually experienced the
employment incident which is alleged to have occurred.6 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.

3

Supra note 2.

4

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

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

6

Elaine Pendleton, supra note 4.

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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 supporting such causal relationship.7 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.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of 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.8
ANALYSIS
The Board finds that appellant has not submitted sufficient medical evidence to establish
that his lumbar condition is causally related to the accepted October 15, 2014 employment
incident.
On the date of injury, appellant sought emergency medical treatment for complaints of low
back pain at Brooklyn Hospital Center. However, these notes do not provide findings and an
opinion regarding the cause of appellant’s condition. As such, this report is insufficient to establish
his traumatic injury claim.9
In an October 23, 2014 medical report and October 27, 2014 Form CA-20, Dr. De Moura
described the October 15, 2014 employment incident and diagnosed low back pain, lumbar
radiculitis, and cervicalgia. On the Form CA-20, he checked the box marked “yes” when asked if
the condition was caused or aggravated by the employment activity. The Board, however, has
held that a report that addresses causal relationship with a checkmark, without medical rationale
explaining how the work condition caused the alleged injury, is of diminished probative value and
insufficient to establish causal relationship.10 Moreover, his statement that causation is supported
by appellant’s history, clinical examination, and symptoms fail to provide a sufficient explanation
as to the mechanism of injury pertaining to this traumatic injury claim.11 As such, his opinion is
of diminished probative value.12
Dr. Cardinale’s November 6, 2014 report is also insufficient to establish appellant’s claim.
While the physician provided a diagnosis, he failed to discuss appellant’s medical history and only
repeated his assertions pertaining to the employment incident. Such generalized statements do not
establish causal relationship because they merely repeat appellant’s allegations and are
7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

9

J.P., Docket No. 14-0087 (issued March 14, 2014).

10

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

11

S.W., Docket No. 08-2538 (issued May 21, 2009).

12

Id.

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unsupported by adequate medical rationale explaining how this physical activity actually caused
the diagnosed conditions.13
Dr. Tarleton noted that causation was established because appellant’s complaints were
“consistent with the injury and the history of injury was consistent with objective findings.” His
statement on causation is vague without discussion of the objective evidence that supported his
conclusion. As Dr. Tarleton’s failed to provide sufficient explanation as to the mechanism of
injury explaining how lifting a heavy caster would cause his lumbar injuries, his opinion is of
diminished probative value.14 In medical reports dated December 3, 2014 to August 12, 2015,
Dr. Tarleton described the October 15, 2014 employment incident and diagnosed work-related
lumbago, lumbar herniated nucleus pulposus, lumbar radiculopathy, and cervicalgia. The Board
finds that the opinion of Dr. Tarleton is insufficiently rationalized.
Dr. Tarleton discussed previous diagnostic testing and noted that appellant’s conditions
began in May 2009. He reported that a 2009 cervical spine MRI scan revealed diffuse hydration
loss and posterior disc bulges impressing on the thecal sac from C2-3 through C6-7. Dr. Tarleton
further noted that a 2009 lumbar spine MRI scan also revealed multilevel disc issues. The Board
notes that the previous diagnostic studies revealed a preexisting injury given that appellant’s
current lumbar MRI scan showed L2-3 mild disc bulging and disc degeneration at L4-5 and L5-S1.
Dr. Tarleton failed to discuss whether appellant’s preexisting injury had progressed beyond what
might be expected from the natural progression of that condition.15 It is unclear whether
appellant’s multilevel degenerative disc issues and radiculopathy were caused or aggravated by
the October 15, 2014 employment incident, a result of a preexisting condition, or due to
degenerative changes. Moreover, appellant reported prior nonoccupational lumbar-related
injuries. However, Dr. Tarleton failed to adequately discuss his medical history when assessing
the cause of his condition. A well-rationalized opinion is particularly warranted when there is a
history of a preexisting condition.16
Dr. Tarleton further failed to provide a sufficient explanation as to the mechanism of injury
pertaining to this traumatic injury claim. While he had some understanding of the October 14,
2015 employment incident, noting that appellant was lifting a heavy caster, he failed to provide
sufficient detail regarding the circumstances surrounding the incident pertaining to the weight and
size of the caster and the specific movements involved which would result in appellant’s injury.
Dr. Tarleton reported that lifting a caster can certainly hurt the lower back and lead to disc disease,
muscle issues, or an exacerbation of any underlying condition in the lumbar spine that could result
in persistent pain, especially if the caster is overweight. His statement that lifting a caster could
cause injury is vague and couched in speculative terms without a definitive statement that the
incident in this claim caused appellant’s injury. Dr. Tarleton further noted that lifting the caster
coincided chronologically with the onset of symptoms and therefore, it appeared that the
overweight caster was responsible. The Board has held that an opinion that a condition is causally
13

K.W., Docket No. 10-0098 (issued September 10, 2010).

14

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

15

R.E., Docket No. 14-0868 (issued September 24, 2014).

16

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

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related because the employee was asymptomatic before the injury, without adequate rationale, is
insufficient to establish causal relationship.17 Dr. Tarleton’s statement is vague and generalized
without sufficient detail explaining how the October 15, 2014 incident caused appellant’s injury.
Without explaining how, physiologically, the movements involved in the employment incident
caused or contributed to appellant’s lumbar injuries, Dr. Tarleton’s opinion on causal relationship
is of limited probative value.18
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s lumbar injury and the October 15, 2014 employment incident.
Dr. Harkavy’s and Dr. Landskowsky’s reports simply interpret diagnostic studies with no firm
medical diagnosis or opinion on the cause of appellant’s injury.19 The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value.20 Any medical opinion evidence appellant may submit to support his claim should
reflect a correct history and offer a medically sound explanation by the physician of how the
specific employment incident, in particular physiologically, caused or aggravated his lumbar
injury.21
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relationship.22 Appellant’s honest belief that his accepted
employment incident caused his lumbar injury, however sincerely held, does not constitute
medical evidence necessary to establish causal relationship.23 In the instant case, the record lacks
rationalized medical evidence establishing causal relationship between the October 14, 2015
employment incident and his diagnosed lumbar injuries. Thus, appellant has not met his burden
of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted October 15, 2014 employment incident.
17

M.R., Docket No. 14-0011 (issued August 27, 2014).

18

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
19

It is not possible to establish the cause of a medical condition if the physician has not stated a firm medical
diagnosis. T.G., Docket No. 13-0076 (issued March 22, 2013).
20

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

21

Id.

22

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

23

See J.S., Docket No. 17-0967 (issued August 23, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERAL REVENUE SERVICE,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 21-0667
Issued: March 3, 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 March 15, 2021 appellant filed a timely appeal from an October 1, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish that an injury
occurred in the performance of duty on May 20, 2020, as alleged.
FACTUAL HISTORY

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the October 1, 2020 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

On June 1, 2020 appellant, then a 55-year-old internal revenue agent, filed a traumatic
injury claim (Form CA-1) alleging that on May 20, 2020 she fractured her left upper extremity
while in the performance of duty. She further explained that, while working from home, she
tripped and fell while trying to kick a toy to her cat. On the reverse side of the claim form B.D.,
an employing establishment supervisor, indicated that appellant was in telework status and that the
incident occurred during scheduled work hours, but controverted the claim, contending that
appellant was not in the performance of duty. Appellant stopped work on the date of injury and
returned to work with restrictions on June 8, 2020.
In a June 3, 2020 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
afforded her 30 days to submit the necessary evidence.
In a statement dated June 8, 2020, appellant indicated that at the time of her injury, she was
walking to her home office when she noticed a cat toy in her path. While trying to kick it toward
her cat, her right foot skidded on the floor and she fell, landing on her left arm and face. Appellant
indicated that she believed she was in the performance of duty at the time of the injury, because
she was ordered to work from home until further notice due to the closing of federal buildings due
to COVID-19.
In a report dated May 21, 2020, Dr. Russell M. LaFrance, a Board-certified orthopedic
surgeon, diagnosed appellant with a left proximal humerus fracture including the greater tuberosity
with endosteal scalloping in the humeral head. He noted a history that she fell while kicking a cat
toy across her wood floor.
By decision dated July 8, 2020, OWCP denied appellant’s claim, finding that she had not
established that her injury was sustained in the performance of duty. It found that she was injured
while working from home and engaged in an act for personal comfort and convenience. OWCP
further noted that the personal comfort doctrine did not apply to employees working at home and
that only activities directly related to official duties were covered. It further found that the activity
appellant was engaged in at the time of her injury was not directed to the actual performance of
the duties of her federal employment. Consequently, OWCP concluded that the requirements had
not been met to establish an injury or medical condition as defined by FECA.
On August 6, 2020 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. In support of her request, she submitted a second
statement reiterating that she believed she was in the performance of duty when she was injured,
because she was instructed to work from home effective March 23, 2020. Appellant also explained
that, due to the sensitive nature of her work materials involving taxpayer information, she utilized
a confined space in her home as an office, and when she finishes her coffee in the morning, she
takes the cup downstairs to her kitchen so that it does not take up necessary office space. She
related that on May 20, 2020 she was returning to her home office from the kitchen and tried to
kick a toy to her cat, missed, and went flying onto the ground in front of her stairs.
By decision dated October 1, 2020, OWCP’s hearing representative affirmed OWCP’s
denial of the claim.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
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.”6 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.”7 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 employment or engaged in doing something incide ntal
thereto.8 This alone is insufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requireme nt being that the
employment caused the injury. 9
Its procedures provide that ordinarily, the protections of FECA 10 do not extend to the
employee’s home, but there is an exception when the injury is sustained while the employee is
performing official duties. In situations of this sort, the critical problem is to ascertain whether at
the time of injury the employee was in fact doing something for the benefit of the employer.11
3

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

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

5 U.S.C. § 8102(a).

7

See D.L., Docket No. 19-0276 (issued April 20, 2020); 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).
8

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

9

See M.T., id.; Eugene G. Chin, 39 ECAB 598, 602 (1988).

10

Supra note 1.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
see also M.T., Docket No. 16-0927 (issued February 13, 2017); S.F., Docket No. 09-2172 (issued August 23, 2010).

3

In determining whether an injury occurs in a place where the employee may reasona bly be
or constitutes a deviation from the course of employment, the Board will focus on the nature of
the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment. 12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on May 20, 2020, as alleged.
As noted above, for employees performing official duties at home, OWCP has provided
that employees must be directly engaged in the performance of their duties to be covered under
FECA.13 Appellant alleged that she was injured when she kicked a toy to her cat. Her actions
constitute a deviation from the course of employment. At the time of the slip and fall, appellant
was not engaged in an activity essential to her employment or reasonably incidental to the duties
that she was hired to perform. 14 The Board thus finds that the injury she sustained did not occur
in the performance of her federal employment duties.
For these reasons, the Board finds that appellant has not met her burden of proof to establish
an injury in the performance of duty on May 20, 2020, as alleged.
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 an injury, in the
performance of duty on May 20, 2020, as alleged.

12

See A.S., Docket No. 17-1880 (issued December 12, 2018); T.C., Docket No. 16-1070 (January 24, 2017).

13

Supra note 1

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 09-254
Issued: August 13, 2009

Case Submitted on the Record

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

JURISDICTION
On November 4, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 30, 2008 denying an additional schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has more than 25 percent right upper extremity permanent
impairment.
FACTUAL HISTORY
On February 4, 2002 the Office advised appellant that it accepted a right shoulder strain
in the performance of duty on December 30, 2001. It also accepted a right shoulder
impingement syndrome and adhesive capsulitis. By decision dated February 24, 2004, the Office
issued a schedule award for 25 percent permanent impairment to the right arm. The period of the
award was 78 weeks from December 10, 2003.

In a claim for compensation (Form CA-7) dated July 27, 2007, appellant requested an
additional schedule award. In a report dated October 16, 2007, Dr. J. Carvel Jackson, an
osteopath, opined that appellant had 18 percent permanent impairment of the right arm, based on
passive range of motion.
By decision dated February 7, 2008, the Office denied the claim for an additional
schedule award. Appellant requested reconsideration and submitted additional evidence. By
report dated March 4, 2008, Dr. Jackson again opined that appellant had 18 percent right arm
impairment based on loss of range of motion. In a report dated March 11, 2008, Dr. William
Brainard, an orthopedic surgeon, stated that appellant had “dysesthesias which were not
addressed at that time and some further weakness, and I think a maximum of 5 percent added
disability would put him at the 30 percent level.”
In a report dated July 16, 2008, Dr. Brainard provided range of motion results for the
right shoulder from a July 16, 2007 functional capacity evaluation. He opined that the loss of
range of motion resulted in 18 percent permanent impairment. Dr. Brainard also found that
appellant had 15 percent impairment for weakness, pain and discomfort. He did not cite to a
specific table or figure in the American Medical Association, Guides to the Evaluation of
Permanent Impairment for this impairment.
The Office referred appellant to Dr. Jon Abbott, an orthopedic surgeon, for a second
opinion examination. In a report dated September 19, 2008, Dr. Abbott provided a history,
review of medical records and results on examination. For range of motion in the right shoulder,
he reported 90 degrees of flexion, 50 degrees of extension, 90 degrees of abduction, 45 degrees
adduction, 70 degrees internal rotation and 45 degrees external rotation. Dr. Abbott opined that
appellant had 11 percent right arm impairment for loss of range of motion, based on 6 percent for
loss of flexion, 4 percent abduction and 1 percent internal rotation. He also noted that appellant
did have a partial excision of the distal clavicle, and he awarded five percent under Table 16-27.
In addition, Dr. Abbott noted that appellant “had no complaints of loss of sensation during my
examination nor obvious findings of weakness in a radicular pattern. I feel the patient’s
weakness can he attributed to his loss of range of motion and pain. He is noted to have pain with
range of motion of the shoulder and I do not feel that a formal strength assessment can he
performed in the presence of pain.” He noted that the A.M.A., Guides provided for up to 3
percent for pain impairment, but this would not increase the impairment to more than 25 percent.
Dr. Abbott concluded that appellant did not have more than 25 percent permanent impairment to
the right arm.
By decision dated October 30, 2008, the Office denied modification of the February 7,
2008 decision. It found that Dr. Abbott represented the weight of the evidence.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member

2

or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2
ANALYSIS
In the present case, appellant had received a schedule award for 25 percent right arm
permanent impairment on February 24, 2004. He seeks an additional award for the right arm.
The reports submitted by appellant from Dr. Jackson and Dr. Brainard do not establish an
impairment greater than 25 percent. Dr. Jackson reported 18 percent impairment based on loss
of range of motion, and found no additional impairment. Dr. Brainard, relying on range of
motion results in a functional capacity evaluation dated July 16, 2007, also found appellant had
18 percent impairment for loss of range of motion. He then added an additional 15 percent for
weakness, pain and discomfort. Dr. Brainard did not cite any specific table or figure under the
A.M.A., Guides. It is not clear how the 15 percent impairment was calculated. If Dr. Brainard
was intending to find impairment based on peripheral nerve disorders, the impairment must be
calculated in accord with the methods described in section 16.5 of the A.M.A., Guides, which
require identification of the nerves involved and grading of the impairment.3 The Board finds
Dr. Brainard’s reports are of little probative value to the issue presented.4
The Office referred appellant to Dr. Abbott for a second opinion examination. While
appellant argues his September 19, 2008 report is based on an incomplete history, Dr. Abbott
provided an accurate history and reviewed the relevant medical evidence of record. Appellant
also argued that Dr. Abbott provided inadequate range of motion results. However, Dr. Abbott
provided his measured range of motion for the right shoulder and appellant has provided no
evidence that the measurements were inaccurate. In this regard, the Board notes that Dr. Abbott
found six percent impairment for 90 degrees flexion, four percent impairment for 90 degrees
abduction, and one percent for 70 degrees internal rotation. Dr. Abbott did not report a ratable
impairment for external rotation. Based on a reported 45 degrees of external rotation, this would
be an additional 1 percent under Figure 16-46, or a total of 12 percent for loss of range of
motion.5
Dr. Abbott also provided an additional five percent for a partial distal clavicle resection
arthroplasty under Table 16-27. This table was intended for a total shoulder distal clavicle
resection and provides 10 percent arm impairment.6 While there is no indication that this table
1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

A.M.A., Guides 480-97.

4

See Richard A. Neidert, 57 ECAB 474 (2006).

5

A.M.A., Guides 479, Figure 16-46.

6

Id. at 506, Table 16-27.

3

provides for five percent impairment under the circumstances of this case, any error is to the
benefit of appellant. In addition, Dr. Abbott referred to Chapter 18 of the AM.A., Guides, which
provides up to a three percent additional arm impairment and is appropriate if the condition
cannot adequately be rated under other chapters.7 Dr. Abbott did not find a peripheral nerve
impairment and he explained that an impairment for weakness was incorporated in the
impairments for loss of range of motion and pain. The impairments for range of motion, partial
distal clavicle resection and pain do not result in arm impairment greater than 25 percent.8 The
Board finds Dr. Abbott’s report does not establish that appellant has more than the 25 percent
permanent impairment previously received.
On appeal, appellant argues that Dr. Abbott’s report if of diminished probative value
because the statement of accepted facts did not include all relevant information regarding his
prior surgeries, work history and accepted conditions. Dr. Abbott, however, was asked to
provide an opinion as to the degree of permanent impairment in the right arm, and he provided a
history demonstrating an understanding of the relevant factual and medical history. As noted
above, the Board finds Dr. Abbott’s report represents the weight of the medical evidence
concerning the current impairment of appellant’s right arm. Appellant also argues that, if the
Board finds Dr. Abbott’s report to be of probative value, then a conflict exists with Dr. Brainard.
As the Board notes above, Dr. Brainard’s report is of diminished probative value as it did not
explain any impairment over 18 percent pursuant to the A.M.A., Guides and therefore is not
sufficient to create a conflict under 5 U.S.C. § 8123(a).9
CONCLUSION
The Board finds the evidence does not establish more than 25 percent right arm
permanent impairment.

7

Id. at 570, 574, Figure 18-1.

8

A range of motion impairment would be combined (using the Combined Values Chart) with an impairment
under Table 16-27, rather than added. A.M.A, Guides 505. Even if Dr. Abbot had found appellant was entitled to
10 percent arm impairment under Table 16-27, this would combine with 12 percent loss of range of motion for 21
percent impairment, with the additional 3 percent for pain totaling 24 percent arm impairment.
9

To create a conflict, the physician’s reports must be of virtually equal weight and rationale. See John D.
Johnson, 55 ECAB 465 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 30, 2008 is affirmed.
Issued: August 13, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Hines, IL, Employer
__________________________________________

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

Docket No. 14-1124
Issued: November 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 15, 2014 appellant, through counsel, filed a timely appeal from a March 24,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim for compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury or medical condition on October 17, 2012.
FACTUAL HISTORY
On November 1, 2012 appellant, then a 60-year-old dental assistant, filed an occupational
disease claim indicating weakness of her right arm and hand every time she worked with a left1

5 U.S.C. § 8101 et seq.

handed dentist. She explained that she was used to working with her right hand and she had to
stand up and find the right position to place her suction if the dentist was working on the right
side of the patient. Appellant first became aware of her condition and that it was caused or
aggravated by her employment on October 17, 2012. No additional evidence was submitted.
In a November 19, 2012 letter, OWCP advised appellant of the deficiencies in her claim
and provided her the opportunity to submit additional evidence. Appellant was requested to
submit within 30 days a response to the questionnaire regarding the factual aspects of her claim
and a comprehensive medical report from a physician supported by a medical explanation as to
how work factors caused or aggravated her condition.
In response, OWCP received a December 13, 2002 claim for compensation and a
December 12, 2012 request for physical therapy and work restrictions for appellant’s right arm
from Dr. Keith L. Komnick, a Board-certified orthopedic surgeon. In a January 9, 2013 report,
Dr. Paul Papierski, a Board-certified hand surgeon, indicated that appellant was off work from
January 9 to 10, 2013 and may return to medium work January 10 to February 13, 2013. He also
indicated that appellant had a follow-up appointment to schedule surgery.
By decision dated January 29, 2013, OWCP denied the claim on the grounds that
appellant had not established the medical component of fact of injury as the medical evidence
submitted failed to contain a diagnosis in connection with the event or a well-rationalized
opinion based on objective findings of whether and how any condition diagnosed was
attributable to identified work activities.
In a December 30, 2013 letter, appellant, through her attorney, requested reconsideration.
Physical therapy notes dated January 9, 2013 to March 12, 2014 were submitted along with
November 25 and a December 4, 2013 report from an occupational therapist and requests for
authorization of hand therapy.
In another January 9, 2013 report, Dr. Papierski provided a history of right wrist and
forearm pain, much worse since October 2011. He noted that appellant has worked as a dental
assistant for many years and works with patients as well as cleaning various kinds of equipment.
Dr. Papierski opined that appellant had right de Quervain’s tenosynovitis most likely related to
her job activities. Treatment options were discussed and appellant agreed to surgery. In a
November 1, 2013 report, Dr. Papierski noted that appellant was previously scheduled for
surgery but was apparently denied on the causation question from workers’ compensation. He
continued to opine that appellant has right de Quervain’s tenosynovitis with failed conservative
treatment. Appellant consented to surgical treatment. Dr. Papierski further diagnosed thumb
arthritis and stated treatment would be discussed postoperatively. He also provided reports with
work restrictions. On November 20, 2013 Dr. Papierski performed surgical release of right
de Quervains. He provided postsurgical reports on appellant’s status, additionally diagnosing
right middle trigger finger acquired. Dr. Papierski opined that she could resume work on
December 2, 2013 with a splint.

2

In a December 3, 2013 report, Dr. David Grosburg2 noted that appellant’s right wrist
became swollen on October 17, 2012, she was assisting with a spinal cord patient before that,
and injured her wrist because of the position of the patient. He opined that appellant injured her
wrist by work activity and diagnosed cellulitis.
By decision dated March 24, 2014, OWCP modified its prior decision to reflect that the
fact of injury had been established but denied the claim on the grounds that causal relationship
had not been established.
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To 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.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 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.8 Neither the mere fact that a disease or condition
2

Dr. Grosburg’s credentials are not of record.

3

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

4

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

5

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

James Mack, 43 ECAB 321, 329 (1991).

3

manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9
ANALYSIS
OWCP denied appellant’s claim on the grounds there was insufficient medical evidence
to establish that her diagnosed right hand conditions were caused or aggravated by either an
incident with a spinal patient on October 17, 2012 or by her work activities of assisting a lefthanded dentist. The Board affirms the decision.
Appellant alleged on her claim form that she experiences weakness of her right arm and
hand every time she works with a left-handed dentist. She attributed her condition to positioning
her suction when the left-handed dentist works on the patient’s left side of the mouth. Despite
OWCP’s request for further factual information, appellant did not provide further detail of the
duties she was required to perform and how often this occurred and if it only occurs while
working with a left-handed dentist. While Dr. Papierski provided a history of right wrist and
forearm pain, much worse since October 2011 and noted that appellant has worked as a dental
assistant for many years and cleans various kinds of equipment, he does not appear to be aware
of appellant’s complaints of experiencing right arm and hand pain every time she works with a
left-handed dentist. Thus, while he opined that appellant had right de Quervain’s tenosynovitis
most likely related to her general job activities, his opinion is not based on an accurate factual
background and is equivocal in nature.10 Furthermore, Dr. Papierski’s report lacks adequate
medical rationale as to how appellant’s work with a left-handed dentist or her work as a dental
assistant could result in the diagnosed condition of right de Quervain’s tenosynovitis.11 Thus,
Dr. Papierski’s reports are of little probative value in establishing appellant’s claim.
Dr. Grosburg noted in his December 3, 2013 report that appellant’s right wrist became
swollen on October 17, 2012 while assisting a spinal cord patient and diagnosed cellulitis.
However, there is no statement from appellant with regard to that event and, even if accepted as
factual, Dr. Grosburg provides no explanation in detail of how appellant’s condition
physiologically resulted from appellant’s assistance of a spinal cord patient.

9

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

10

D.F., Docket No. 09-1080 (issued December 7, 2009); Michael R. Shaffer, 55 ECAB 386 (2004).

11

See I.J., supra note 6; Victor J. Woodhams, supra note 7.

4

The physical therapy reports and reports from an occupational therapist are also
insufficient to establish appellant’s claim. Physical therapists and occupational therapists are not
a physician and a physical therapist’s or occupational therapist’s opinion regarding diagnosis or
causal relationship is of no probative value.12
The Board finds that the medical evidence does not establish that appellant sustained a
medical condition causally related to her federal employment. An award of compensation may
not be based on surmise, conjecture or speculation. Neither the fact that appellant’s condition
became apparent during a period of employment nor the belief that her condition was caused,
precipitated or aggravated by her employment, is sufficient to establish causal relationship.13
Causal relationships must be established by rationalized medical opinion evidence. As noted, the
medical evidence is insufficient to establish appellant’s claim. Consequently, OWCP properly
found that appellant did not meet her burden of proof in establishing her claim.
On appeal, appellant’s attorney argued that the decision is contrary to fact and law. As
noted above, the medical evidence does not establish that appellant’s diagnosed conditions are
causally related to the accepted October 17, 2012 event of assisting a spinal cord patient,
working with a left handed dentist, or the dental assistance duties. Reports from appellant’s
physicians failed to provide sufficient medical rationale based on a complete factual background
explaining the reasons why her diagnosed conditions were caused or aggravated by particular
employment duties. The need for such rationale is particularly important in view of the fact
appellant provided a vague description of her work activities and how long and often she was
required to perform them.
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.

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 physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as
follows: (2) 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

Supra note 9.

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a medical condition causally related to her employment or the accepted October 17,
2012 incident.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lancaster, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Nina B. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1200
Issued: December 16, 2011

Oral Argument October 5, 2011

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2011 appellant, through her attorney, filed a timely appeal from an
October 18, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied her claim.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue on appeal is whether appellant has met her burden of proof to establish that she
developed a right shoulder condition on July 14, 2005 while in the performance of duty.

1

The 180th day following the October 18, 2010 OWCP decision was April 16, 2011. As this fell on a Saturday,
the period for filing the appeal ran to the next business day, Monday, April 18, 2011 rendering the appeal timely.
20 C.F.R. § 501.3(f)(2).
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 17, 2008 appellant, then a 63-year-old clerk, filed a claim for traumatic injury
alleging that on July 14, 2008 she was pushing and pulling all purpose containers and felt a pop
in her shoulder. At the time of the incident she was on light duty for a nonwork-related hip
condition. Appellant stopped work on July 18, 2008.
Appellant was treated by Dr. Michael E. Brown, a Board-certified family practitioner, on
July 17, 2008, who noted that she sustained an injury to her right shoulder on July 14, 2008
while working. Dr. Brown diagnosed avulsion fracture of the right shoulder and noted that she
was disabled from July 17 to 23, 2008. On July 23, 2008 appellant came under the treatment of
Dr. William H. Ulmer, an osteopath and Board-certified orthopedist, for right shoulder pain.
Appellant reported sustaining a shoulder injury on July 14, 2008 when she was pushing heavy
carts at work and felt a “pop” in her right shoulder. Dr. Ulmer noted findings upon physical
examination of diffuse right shoulder girdle atrophy, mild scapular winging and limited range of
motion with crepitation. He noted x-rays of the right shoulder revealed osteopenia and
acromioclavicular osteoarthrosis. In reports dated August 4 to September 9, 2008, Dr. Ulmer
diagnosed rotator cuff tendinitis with partial interstitial tear. A July 31, 2008 magnetic resonance
imaging (MRI) scan of the right shoulder revealed supraspinatus and subscapularis tendinitis
with minimal interstitial partial tear, biceps tendinitis with degeneration and suspected fraying or
tear of the glenoid labrum moderate subdeltoid bursitis and moderate acromioclavicular joint
arthrosis.
In a letter dated September 8, 2008, OWCP advised appellant of the type of factual
evidence needed to establish her claim and requested that she submit such evidence.
In a statement dated October 3, 2008, appellant noted that on July 14, 2008 her work area
was jammed with all-purpose containers and it was difficult to maneuver around the containers.
She indicated that she started to move the containers and heard a “pop” in her shoulder but
continued to work. Appellant reported increased pain and sought medical treatment. In a
September 9, 2008 attending physician’s report, Dr. Ulmer diagnosed tendinitis, calcifying
shoulder and mild interstitial tearing. He noted with a checkmark “yes” that appellant’s
condition was caused by an employment activity and returned her to restricted duty on
August 4, 2008.
In a decision dated October 10, 2008, OWCP denied appellant’s claim on the grounds
that the medical evidence was not sufficient to establish that her condition was caused by the
factors of employment as required by FECA.3
On November 5, 2008 appellant requested an oral hearing which was held on
May 27, 2009. She submitted reports from Dr. Ulmer dated October 20, 2008 to April 16, 2009,
who noted that she was progressing well with physical therapy. Dr. Ulmer diagnosed rotator
cuff tendinitis with moderate interstitial tearing and continued appellant’s work restrictions. He
noted that she experienced an exacerbation of symptoms in November 2008 while lifting mail
during the holiday season and diagnosed chronic rotator cuff tendinosis with moderate interstitial
3

Id.

2

tearing of the right shoulder, acute exacerbation. On December 8, 2008 Dr. Ulmer performed a
subacromial cortisone injection. In reports dated January 14 and April 16, 2009, he noted
appellant’s continued right shoulder symptoms but noted that she experienced marked
improvement with physical therapy. Dr. Ulmer opined that based on his evaluations over the last
several months her injury was work related and secondary to her repetitive lifting, pushing and
pulling duties performed at work. In a June 10, 2009 report, he noted that the physical
examination was essentially unchanged and diagnosed chronic rotator cuff tendinosis with
interstitial tearing of the rotator cuff, right shoulder.
By decision dated August 13, 2009, an OWCP hearing representative affirmed the denial
of appellant’s claim.
On October 29, 2009 appellant requested reconsideration. She submitted an August 20,
2009 report from Dr. Brown who treated her on July 17, 2008 for right shoulder pain which
began on July 14, 2008 while moving heavy mail bins at work. Dr. Brown opined that to a
reasonable certainty appellant’s injury was new and it occurred acutely on July 14, 2008 while
working at the employing establishment. He noted that this injury was not a reaggravation of an
old injury or a result of repetitive motions, rather, her injury was caused by moving heavy mail
bins. Also submitted was a September 10, 2009 report, from Dr. Ulmer who noted treating
appellant since July 23, 2008 for a right shoulder injury. Appellant reported that her injury
occurred at work on July 14, 2008. She noted that there was a lot of clutter, heavy equipment
and mail bins around her workstation and she attempted to move them out of the way and felt a
“pop” in her shoulder. Appellant noted continuing to work; however, her symptoms worsened
and she sought treatment at the emergency room on July 17, 2008. Dr. Ulmer noted an MRI
scan revealed a partial rotator cuff tear which was treated conservatively with injections and
physical therapy. He noted that appellant reported a history of a prior right shoulder injury;
however, this injury was resolved with no residual symptoms until her injury on July 14, 2008.
Dr. Ulmer opined that to a reasonable degree of medical certainty her movement of the heavy
mail bins were the cause of her current symptoms and were not an aggravation of a prior injury
or due to repetitive motions. On October 13, 2009 appellant was treated by Dr. Michael B.
Furman, a Board-certified orthopedist, for axial neck pain and right upper limb pain, who noted
that she had a work-related right shoulder injury on July 23, 2008 Dr. Furman diagnosed
myalgia and myositis, joint pain right shoulder and neck pain cervicalgia.
In a decision dated November 7, 2009, OWCP denied modification of the prior decision.
On September 20, 2010 appellant again requested reconsideration. She submitted reports
from Dr. Ulmer dated January 13 to July 26, 2010, who treated her for her right shoulder injury.
Dr. Ulmer noted examination of the right shoulder remained unchanged and diagnosed partial
thickness tear, right shoulder and cervical degenerative disc disease.
By decision dated October 18, 2010, OWCP denied modification of the prior decision,
after merit review.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time limitation
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 is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.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 that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a 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, based on a complete factual and medical
background, supporting such a causal relationship.7
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.8 The weight of 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.9
ANALYSIS
In the instant case, it is not disputed that appellant worked as a clerk and was moving
mail carts on July 14, 2008.

4

Id.

5

Gary J. Watling, 52 ECAB 357 (2001).

6

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

7

Id.

8

Leslie C. Moore, 52 ECAB 132 (2000).

9

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

4

OWCP denied appellant’s claim for compensation on the grounds that the medical
evidence was not sufficient to establish that her medical condition of right rotator cuff tendinitis
with partial interstitial tear was causally related to her employment. However, the Board finds
that, while the medical evidence submitted by her is not fully rationalized, it generally supports
that she sustained a right shoulder injury from moving mail carts on July 14, 2008. Specifically,
on July 23, 2008 Dr. Ulmer noted that appellant sustained a right shoulder injury on July 14,
2008 while pushing heavy carts at work. Appellant reported feeling a “pop” in her right
shoulder. Similarly, on September 10, 2009, Dr. Ulmer noted treating her since July 23, 2008 for
a right shoulder injury, which she indicated occurred on July 14, 2008 while at work. Appellant
noted that there was a lot of clutter, heavy equipment and mail bins around her workstation and
she attempted to push these carts out of the way and felt a “pop” in her shoulder. Dr. Ulmer
opined that to a reasonable degree of medical certainty her movement of the heavy mail bins
were the cause of her current symptoms and were not an aggravation of a prior injury or due to
repetitive motions. Likewise, an August 20, 2009 report from Dr. Brown noted treating
appellant on July 17, 2008 for right shoulder pain which began on July 14, 2008 while she was
moving heavy mail bins at work. He opined that to a reasonable certainty her injury was caused
by moving heavy mail bins. Although the physician’s opinions are not sufficiently rationalized
to carry appellant’s burden of proof in establishing her claim, it is uncontroverted in the record
and is, therefore, sufficient to require further development of the case by OWCP.10
In view of the above evidence, OWCP should have referred the matter to an appropriate
medical specialist to determine whether appellant sustained right rotator cuff tendinitis and
partial tear as a result of her employment duties.
Proceedings under FECA are not adversary in nature nor is OWCP a disinterested arbiter.
While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has the obligation to see that justice is
done.11
Therefore, the Board finds that the case must be remanded to OWCP for preparation of a
statement of accepted facts concerning appellant’s working conditions and referral of the matter
to an appropriate medical specialist, consistent with OWCP procedures, to determine whether
she sustained a right shoulder injury as a result of performing her employment duties. Following
this and any other further development as deemed necessary, OWCP shall issue an appropriate
merit decision on her claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

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

11

John W. Butler, 39 ECAB 852 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the October 18, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
in accordance with this decision of the Board.
Issued: December 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6