United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 07-1724
Issued: December 28, 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 June 14, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated September 8, 2006 finding that she had not established an
emotional condition causally related to her federal employment. She also timely appealed a
June 5, 2007 nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed an emotional condition due to factors of her federal employment; and (2) whether the
Office properly declined to reopen her claim for consideration of the merits under 5 U.S.C.
§ 8128(a).

FACTUAL HISTORY
On August 1, 2005 appellant, then a 44-year-old clerk, filed an occupational disease
claim alleging that she developed an emotional condition in 1992 due to her federal employment.
She stated that she developed a “stress-related” emotional condition due to an improper removal
from the employing establishment. Appellant stated that following arbitration she was reinstated
with monetary loses. She alleged that harassment continued. Appellant stopped work on
July 25, 2005.
In a statement dated July 26, 2005, appellant alleged that she was subject to pettiness and
to charges which were misconceptions. She received inappropriate letters of warning,
discussions, suspensions and an unjust removal. Appellant also attributed her emotional
condition to surveillance by postal inspectors. She alleged that she developed severe headaches,
panic attacks and ulcers.
Tim Schmitt, appellant’s supervisor, controverted her claim on the grounds that she
requested the claim form during a predisciplinary meeting on July 25, 2005. He stated that
appellant was charged with fraudulent time card activity, absence from her assigned work area
without permission, absence without leave and failure to maintain a regular schedule.
Mr. Schmitt stated that after he proposed to terminate appellant due to these charges, she alleged
a stress condition.
In a letter dated August 24, 2005, the Office requested additional factual and medical
evidence from appellant addressing her claimed condition. It allowed 30 days for a response.
By decision dated September 27, 2005, the Office denied appellant’s claim as she failed
to submit the necessary medical evidence to establishing a prima facie case.
The employing establishment noted that appellant was assigned to a limited-duty position
in a print shop shredding paper. Mr. Schmitt began looking for appellant in the print shop on
July 11, 2005 but was unable to locate her until July 25, 2005. He then informed her of the
predisciplinary meeting and appellant immediately requested a claim form.
Appellant requested an oral hearing on September 27, 2005. In a report dated
September 13, 2005, Jean Williams, a licensed counselor, diagnosed chronic pain disorder,
depression, anxiety and sleep disorder. Ms. Williams attributed appellant’s emotional conditions
to her July 12, 2000 employment-related back injury. In a report dated October 31, 2005,
Dr. Bagyalakshmi Arumugham, a Board-certified psychiatrist, stated that he provided treatment
for work-related stress. On November 22, 2005 he stated that appellant believed that one of her
supervisors had singled her out and had been harassing her since 1992. Dr. Arumugham
diagnosed depression. In a note dated December 13, 2005, he diagnosed major depressive
disorder and attributed this condition to a chronic pain secondary to work injury and the physical
limitations due to pain are also contributing factors of her depression.
On March 9, 2006 appellant submitted additional new evidence. She alleged that she was
harassed by a supervisor. Appellant noted that on July 12, 2000 she was injured at work and that
postal inspectors watched her. She submitted requests for documentation to support leave, a

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February 1, 2006 notification of a predisciplinary meeting, a March 1, 2006 notification of a
second predisciplinary meeting and a September 17, 2005 notice of a predisciplinary interview.
Appellant alleged harassment through a postal inspector investigation beginning
October 11, 2005. She filed a grievance regarding Mr. Schmitt’s decision to place her in an offthe-clock, nonduty, nonpay status on July 25, 2005.
In a statement dated March 24, 2006, appellant stated that she was not released from duty
due to poor attendance, that the postal inspectors improperly charged her with unofficial medical
travel refund request vouchers and earning extra income while receiving worker’s compensation.
She stated that these charges were dropped. Appellant attributed her emotional condition to the
February 1, 2006 notice, a predisciplinary meeting. She stated that on July 25, 2005 she was
placed in a nonwork status due to an allegation that she was working in an unassigned work
location. Appellant stated that her first line supervisor, Lester Williams, verified that she was
working in an appropriate location. She alleged that Mr. Schmitt instructed her to work in a unit
that violated her work restrictions, that this instruction caused her to panic and resulted in her
request for a claim form.
By decision dated May 9, 2006, the hearing representative denied appellant’s claim
finding that she had not substantiated a compensable factor of employment as causing her
emotional condition. The hearing representative noted that appellant had not submitted any
evidence substantiating improper disciplinary action or harassment by employing establishment
personnel.
Appellant requested reconsideration on May 30, 2006. She reviewed the medical
evidence in the record. Appellant then provided a list of eight disciplinary actions such as
removals and suspensions which were rescinded. She also noted several postal inspector
investigations. Appellant alleged harassment as a result of these incidents. She stated that she
had provided copies of these disciplinary actions. Appellant submitted documents from various
websites regarding depression and stress.
The employing establishment responded to appellant’s request for reconsideration on
August 15, 2006 and asserted that she had not established a compensable factor of employment
as causing or contributing to her diagnosed emotional condition. On June 19, 2006 the arbiter
denied appellant’s grievance regarding her emergency placement in nonduty status without pay
on July 15, 2005.
Appellant disagreed with the employing establishment’s assessment of her claim on
August 19, 2006 and alleged that she was subjected to inappropriate disciplinary actions, sexual
harassment, false allegations of a threat against a supervisor, medical examinations scheduled by
the Office in her back claim, interviews with the postal inspectors and proposed termination of
her back claim by the Office.
By decision dated September 8, 2006, the Office reviewed appellant’s claim on the merits
and denied modification of its prior decisions. It found that she had not substantiated a
compensable factor of employment which she felt caused or contributed to her diagnosed
emotional condition.

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Appellant submitted an appeal request form and indicated with a checkmark that she
wished to request reconsideration. She submitted a copy of a discrimination complaint dated
November 21, 1995 in which she alleged that she was improperly removed as the result of
retaliation when she protested sexual harassment by Vernell Moss. On September 16, 1996
appellant was returned to work. She also submitted a letter dated May 15, 2007 from her union
president disagreeing with the Office’s conclusions and alleging that medical evidence was
necessary.
By decision dated June 5, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits finding that she failed to submit relevant new evidence or argument
in support of her request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of worker’s compensation. Where the disability results from an employee’s emotional
reaction to his regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Reactions to disciplinary matters such as letters of warning and inquiries regarding
conduct pertain to actions taken in an administrative capacity and are not compensable until it is
established that the employing establishment erred or acted abusively in such capacity.3 The fact
that personnel actions were later modified or rescinded, does not in and of itself, establish error
or abuse. Similarly, the fact that a claimant filed complaints and grievances does not substantiate
the allegations contained therein and the settlement of such complaints and grievances does not
establish error or abuse by the employing establishment.4 Stress from a claimant’s pursuit of a
claim before the Office does not constitute a compensable employment factor as the processing
of a compensation claim bears no relation to appellant’s regular or specially-assigned duties.5
For harassment or discrimination to give rise to a compensable disability, there must be evidence
which establishes that the acts alleged or implicated by the employee did, in fact, occur. Mere
perceptions of harassment or discrimination are not compensable under the Act.6
1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
3

Sherry L. McFall, 51 ECAB 436, 440 (2000).

4

Michael A. Salvato, 53 ECAB 666, 668 (2002).

5

Phillip L. Barnes, 55 ECAB 426, 438 (2004).

6

Reco Roncoglione, 52 ECAB 454, 456 (2001).

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ANALYSIS -- ISSUE 1
Appellant attributed her emotional condition claim to disciplinary actions including
notification of predisciplinary meetings, suspensions and removals by the employing
establishment. She submitted a list of suspensions and removals which resulted in her
reinstatement. Appellant has not submitted any evidence that the employing establishment erred
or acted abusively in these multiple predisciplinary and disciplinary actions. She merely noted
that she had always been reinstated with back pay. As noted above, in order to establish that a
disciplinary action is a compensable factor of employment, appellant must substantiate error or
abuse on the part of the employing establishment.7 The only evidence that she submitted in
support of her claim of error or abuse in these actions of the employing establishment was that
she was reinstated. This fact alone is not sufficient to establish error or abuse on the part of the
employing establishment.8
Appellant also alleged that her emotional condition was the result of erroneous or abusive
investigations by the employing establishment. Investigations, which are an administrative
function of the employing establishment, that do not involve an employee’s regular or specially
assigned employment duties are not considered to be an employment factor where the evidence
does not disclose error or abuse on the part of the employing establishment.9 Appellant has not
submitted the necessary evidence to substantiate that the employing establishment’s
investigations were abusive and she has therefore not substantiated this element of her claim as a
compensable factor of employment.
Appellant attributed her current emotional condition to actions by the Office regarding
her ongoing claim for an employment-related back injury. The Board has held that the
processing of a compensation claim bears no relation to appellant’s regular or specially-assigned
duties.10 As this aspect of appellant’s emotional condition does not involve her regular or
specially-assigned duties, it cannot constitute a compensable factor of employment.
In addressing her emotional condition claim, appellant alleged that the foregoing events
and actions constituted harassment by the employing establishment. While the employing
establishment does not dispute that appellant was subjected to several disciplinary actions, there
is no support in the record for appellant’s assertion that these actions were not legitimate
exercises of authority, but were instead efforts to harass her. The Board has held that perceptions
of harassment or discrimination are not compensable under the Act.11 As appellant has not
submitted sufficient evidence that attempts at harassment occurred, she has not substantiated this
compensable factor of employment. For the foregoing reasons, appellant has not established any

7

McFall, supra note 3.

8

Salvato, supra note 4.

9

Beverly A. Spencer, 55 ECAB 501, 510 (2004).

10

Barnes, supra note 5.

11

Reco Roncoglione, 52 ECAB 454, 456 (2001).

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compensable employment factors under the Act and, therefore, has not met her burden of proof
in establishing that she sustained an emotional condition in the performance of duty.12
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,13 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.14 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.15
ANALYSIS -- ISSUE 2
Appellant filed a timely request for reconsideration and submitted documentation in
support of her request. She submitted a copy of a discrimination complaint filed against a
supervisor for improper removal and the resulting return to work letter and a letter from her
union president disagreeing with the Office’s conclusions stating that medical evidence was
necessary.
These documents do not constitute new, relevant and pertinent evidence or argument.
The copy of the grievance and settlement does not include any admission of error or abuse by the
employing establishment and as noted above does not by the mere reinstatement of appellant
establish error or abuse.16 This evidence does not support or substantiate a compensable
employment factor alleged by appellant and is not sufficient to require the Office to reopen
appellant’s claim for consideration of the merits.
The argument that additional medical evidence is required to establish appellant’s claim
as submitted by the union representative lacks a reasonably color of validity and is not relevant
to the claim currently before the Board. As noted previously, in order to require the Office to
address the medical evidence, a claimant must first establish a compensable factor of
employment. As neither the Board nor the Office found that appellant has established a

12

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
13

5 U.S.C. §§ 8101-8193, § 8128(a).

14

20 C.F.R. § 10.606(b)(2).

15

20 C.F.R. § 10.608(b).

16

Salvato, supra note 4.

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compensable factor, it is not necessary for the Office to review the medical evidence submitted
in support of appellant’s claim.17
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
developed an emotional condition due to factors of her federal employment as she has not
submitted the necessary factual evidence to substantiate a compensable factor of employment to
which she attributed her condition. The Board further finds that the Office properly declined to
reopen appellant’s claim for consideration of the merits on June 5, 2007.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2007 and September 8, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 28, 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

17

As appellant has not established any compensable employment factors, the Office and the Board need not
consider the medical evidence of record. See Krzycki, supra note 12.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Alexandria, LA, Employer
__________________________________________

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

Docket No. 07-712
Issued: June 15, 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 January 19, 2007 appellant filed a timely appeal of a December 22, 2006 decision of
the Office of Workers’ Compensation Programs, denying his request for reconsideration of the
denial of his claim for a recurrence of disability. The Board’s jurisdiction to consider and decide
appeals from final decisions of the Office extends only to those decisions issued within one year
prior to the filing of the appeal.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the December 22, 2006 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

20 C.F.R. §§ 501.2(c); 501.3(d)(2).

FACTUAL HISTORY
On July 19, 1996 appellant, then a 49-year-old motor vehicle operator, filed a traumatic
injury claim alleging that he sustained a dislocated left thumb while lowering a truck door. The
Office accepted his claim for a left thumb dislocation. The Office subsequently accepted a
recurrence of disability sustained on July 11, 1998.
On September 17, 2004 appellant filed a claim for a recurrence of disability commencing
August 11, 2004. By decision dated December 14, 2004, the Office denied appellant’s claim on
the grounds that the evidence was not sufficient to establish that he sustained a recurrence of
disability on August 11, 2004 causally related to his July 19, 1996 employment injury.
On June 22, 2005 appellant requested reconsideration and submitted additional evidence.
By decision dated July 6, 2005, the Office denied modification of the December 14, 2004
decision.
On March 9, 2006 appellant submitted a letter to the Office at the address specified in the
appeal rights attached to his copy of the July 6, 2005 decision. He stated that he disagreed with
the July 6, 2005 decision and expressed his reasons. Appellant submitted a February 16, 2006
report from Dr. Vanda L. Davidson, an attending orthopedic surgeon, who stated that appellant
had experienced left thumb pain for the past six to eight months. Dr. Davidson noted that
appellant sustained a dislocated left thumb in July 1996. She provided findings on examination
and indicated that x-rays revealed mild to moderate arthritic changes.
On October 9, 2006 appellant again requested reconsideration and submitted another
copy of Dr. Davidson’s February 16, 2006 report.
By decision dated December 22, 2006, the Office denied appellant’s October 9, 2006
request for reconsideration on the grounds that it was untimely and failed to demonstrate clear
evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.4 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the request for reconsideration is filed within one year of
the date of that decision.5 The Board has found that the imposition of this one-year time
2

5 U.S.C. § 8128(a).

3

Thankamma Mathews, 44 ECAB 765 (1993).

4

Id. at 768.

5

20 C.F.R. § 10.607; see also Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005).

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limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).6
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7 To establish clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by the Office.8 The evidence must be positive, precise and
explicit and must be manifest on its face that the Office committed an error.9 Evidence which
does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.10 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.11 To show clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflict in
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.12 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.13
ANALYSIS
On March 9, 2006 appellant submitted a letter to the Office at the address specified in the
appeal rights attached to his copy of the July 6, 2005 decision. He stated that he disagreed with
the July 6, 2005 decision and expressed his reasons. Appellant submitted new evidence.
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee shall exercise this right through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”14
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
6

Thankamma Mathews, supra note 3 at 769.

7

20 C.F.R. § 10.607(b); see also Donna M. Campbell, 55 ECAB 241 (2004).

8

Dean D. Beets, 43 ECAB 1153 (1992).

9

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

10

Darletha Coleman, 55 ECAB 143 (2003).

11

Leona N. Travis, supra note 9.

12

Darletha Coleman, supra note 10.

13

Pete F. Dorso, 52 ECAB 424 (2001).

14

20 C.F.R. § 10.605; see also Donna L. Shahin, 55 ECAB 192 (2003).

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for reconsideration, including all supporting documents, must be submitted in writing and must
set forth arguments and contain evidence that shows that the Office erroneously applied or
interpreted a specific point of law, advances a relevant legal argument not previously considered
by the Office, or constitutes relevant and pertinent new evidence not previously considered by
the Office.15
The Board finds that appellant’s March 9, 2006 letter constitutes a timely request for
reconsideration. This letter was submitted within one year of the July 6, 2005 merit decision to
the address specified in the appeal rights attached to the decision. Appellant stated that he
disagreed with the July 6, 2005 decision and provided reasons. He also submitted additional
medical evidence. The Office applied an erroneous standard of review to the evidence submitted
by appellant.
As appellant submitted a timely reconsideration request, the case is remanded for review
of the medical evidence submitted in support of the request. Following such review and any
other development deemed necessary, the Office shall issue an appropriate decision in this case.
CONCLUSION
The Board finds that appellant submitted a timely request for reconsideration on
March 9, 2006.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2006 decision of the Office of
Workers’ Compensation Programs denying appellant’s request for reconsideration is hereby set
aside and the case remanded to the Office for further development and issuance of an appropriate
decision.
Issued: June 15, 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
15

20 C.F.R. § 10.606.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Brighton, PA, Employer
__________________________________________

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

Docket No. 07-2401
Issued: April 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 24, 2007 appellant filed a timely appeal from the July 16, 2007 decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim. 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 established that he sustained an injury in the performance
of duty on May 21, 2007.1

1

The Board notes that, on appeal, appellant submitted new evidence related to his claim. The record also
contains a medical report received by the Office following the issuance of its July 16, 2007 decision. As this
evidence was not a part of the record at the time the Office made its final decision, the Board has no jurisdiction to
review it for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On May 21, 2007 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim, Form CA-1, alleging that on that day he tore the nail off of a finger, bruised his right knee
and sprained his back when he fell down steps while running from a dog.
On May 22, 2007 Dr. Louis D’Amico, a chiropractor, diagnosed lumbar sprain and strain.
He noted that appellant had a diminished range of motion, difficulty walking and sitting, spasms
and subluxation. Dr. D’Amico reported that appellant injured his low back when he was chased
by a dog at work and fell down some steps. He treated appellant with a spinal adjustment and
ultrasound application.
On June 13, 2007 the Office informed appellant that the medical evidence submitted was
not sufficient to establish his claim because his chiropractor had not diagnosed a subluxation
demonstrated by x-ray to exist.
On June 13, 2007 appellant submitted additional medical information. In a May 21, 2007
emergency department report, Denise Ramponi, a nurse practitioner, detailed her examination of
appellant, which was done in collaboration with Dr. Ruth Perez. Ms. Ramponi stated that
appellant was chased by a dog and sustained injuries to the back, right lower leg and left ring
finger. Appellant fell down approximately six to eight steps and struck his knee on a step, bent
back his left ring fingernail and twisted his lower back. On physical examination Ms. Ramponi
noted moderate tenderness, but no spasm, over the right sacroiliac joint. She found two small
abrasions and a contusion on the mid-tibial region of appellant’s right leg. Appellant’s left ring
finger showed evidence of the nail having bent back one quarter of the way, with minimal
bleeding. His left middle finger had a small ecchymosis and swelling. The diagnosis was
musculoskeletal low back strain, contusion and abrasion on the lower right leg, abrasion on the
left ring finger and contusion on the left middle finger. Ms. Ramponi opined that there was no
reason for an x-ray at that time. She reported that appellant preferred to see his chiropractor for
further treatment. Ms. Ramponi provided work restrictions against prolonged walking,
prolonged standing, climbing, bending and stooping and a weight restriction of 15 pounds.
A May 22, 2007 x-ray report, requested by Dr. D’Amico and prepared by
Dr. Daniel Greenler, indicated that appellant had no significant abnormality in the alignment of
his lumbar spine. Dr. Greenler found normal vertebral body height and relatively well-preserved
disc height. He noted no fracture or bony lesion, though he did find minimal marginal spurring.
Dr. Greenler identified no significant abnormality of the soft tissues. He diagnosed minimal
spondylosis without fracture.
In an undated report, received on July 5, 2007, Dr. D’Amico stated that he first treated
appellant on May 22, 2007 for complaints of sharp right low back pain. Appellant reported that
the treatment prescribed at the hospital had helped a little, but that his pain still made it difficult
to walk and bend. He stated that standing or sitting for any amount of time led to increased right
low back pain and numbness in the right leg. The underlying pain was constant. Dr. D’Amico
ordered a series of lumbar x-rays, which showed subluxation of the pelvis and sacroiliac region,
which was elevated and rotated to the right. There was also evidence of disc degeneration at
L5-S1. On physical examination, Dr. D’Amico found loss of lumbar range of motion in flexion,

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extension and right lateral flexion accompanied by moderate right sacroiliac pain. Appellant had
a positive minor’s sign, Youmans test and straight leg test, which yielded sharper pain on the
right at 40 degrees. He had mild-to-moderate difficulty getting onto and off of the examination
table and walked with a noticeable limp on the right. Palpitation showed moderate right
lumbosacral spasm and tenderness with right sacroiliac joint subluxation and a right functional
leg shortening of approximately half of an inch. Dr. D’Amico diagnosed mild-to-moderate right
sacroiliac joint sprain/strain caused by falling down six steps. The sprain resulted in sacroiliac
joint dysfunction and muscle spasms. Appellant was removed from work from May 22 to 29,
2007 because of the pain caused by sitting or standing. He returned to work on May 30, 2007
and was released from care on June 1, 2007 with no residuals.
By decision dated July 16, 2007, the Office denied appellant’s claim on the grounds that
he did not establish an injury under the Federal Employees’ Compensation Act. It accepted that
appellant fell down stairs on May 21, 2007 as alleged, but that there was no diagnosis connected
to the event. The Office found that the reports from the nurse practitioner and the chiropractor
did not constitute medical evidence to support his claim.
LEGAL PRECEDENT
An employee seeking benefits under the Act2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty; and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
employment incident that is alleged to have occurred. The second component of “fact of injury”
is whether the incident caused a personal injury and, generally, this can be established only by
medical evidence.4
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.5 To be rationalized, the opinion must be based on a complete factual and medical

2

5 U.S.C. §§ 8101-8193.

3

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

4

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

5

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

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background of the claimant6 and must be one of reasonable medical certainty,7 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
ANALYSIS
The Office accepted that appellant fell down some stairs when he was being chased by a
dog in the performance of duty on May 21, 2007. The issue is whether he has established an
injury causally related to this accepted event.
The issue of causal relationship is medical in nature and must be resolved by probative
medical evidence. On May 21, 2007 the day of the accepted events, Ms. Ramponi, a nurse
practitioner, examined appellant in the emergency department. She stated that appellant
sustained injuries after falling down approximately six to eight steps and striking his knee on a
step, bending back his left ring fingernail and twisting his lower back. Ms. Ramponi noted
moderate tenderness over the right sacroiliac joint, but felt no spasm. She reported that there
were two small abrasions and a contusion on the mid-tibial region of appellant’s right leg, that
his left ring finger showed evidence of the nail having bent back one quarter of the way and that
his left middle finger had a small ecchymosis and swelling. The reported diagnosis was
musculoskeletal low back strain, contusion and abrasion on the lower right leg, abrasion on the
left ring finger and contusion on the left middle finger. Ms. Ramponi opined that there was no
reason for an x-ray at that time. She provided work restrictions against prolonged walking,
prolonged standing, climbing, bending and stooping and a weight restriction of 15 pounds. The
report was electronically signed by Ms. Ramponi. Dr. Perez did not sign the document or give
any other evidence of participation in its preparation.
The Board notes that a nurse practitioner is not a “physician” as defined under the Act
and any report from such an individual does not constitute competent medical evidence.9
Though Ms. Ramponi stated that Dr. Perez collaborated on the examination, he did not sign the
May 21, 2007 report. The Board has held that a report may not be considered probative medical
evidence unless it can be established that the person completing the report is a “physician” as
defined by the Act.10 Because the May 21, 2007 report was not completed by a physician, the
Board finds that it does not constitute medical evidence.
In an undated report, Dr. D’Amico, a chiropractor, stated that he treated appellant on
May 22, 2007 for complaints of sharp right low back pain. Dr. D’Amico stated that the lumbar
x-rays he ordered showed subluxation of the pelvis and sacroiliac region, which was elevated
6

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

7

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

8

Judy C. Rogers, 54 ECAB 693 (2003).

9

Sean O’Connell, 56 ECAB 195, 200 note 11 (2004); see also 5 U.S.C. § 8101(2) (defining the term
“physician”).
10

Thomas L. Agee, 56 ECAB 465 (2005).

4

and rotated to the right and evidence of disc degeneration at L5-S1. Palpation showed moderate
right lumbosacral spasm and tenderness with right sacroiliac joint subluxation. Dr. D’Amico
diagnosed mild to moderate right sacroiliac joint sprain/strain resulting in sacroiliac joint
dysfunction and muscle spasms.
Under the Act, the term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation, as demonstrated by x-ray to exist.11 Though Dr. D’Amico stated that
appellant’s sacroiliac subluxation was established by x-ray, the record of evidence does not
support this diagnosis.12 The May 22, 2007 x-ray report, prepared by Dr. Greenler, indicated no
significant abnormality in the alignment of the lumbar spine or the soft tissues. He found normal
vertebral body height, relatively well-preserved disc height, no fracture or bony lesion and
minimal marginal spurring. Dr. Greenler diagnosed minimal spondylosis without fracture. He
made no findings of subluxation. The Board therefore finds that Dr. D’Amico is not a physician
as defined under the Act. His report is not probative medical evidence.
The Board finds that appellant did not meet his burden of proof to establish an injury
under the Act.
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury in the
performance of duty on May 21, 2007.

11

5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208, 212 n.12 (2004); see also 20 C.F.R. § 10.311.

12

See Sean O’Connell, supra note 9 at 199 (the Board found that a chiropractor who stated that appellant had a
subluxation diagnosed by x-ray was not a physician under the Act when the report for the x-ray cited did not include
the diagnosis of subluxation).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 16, 2007 is affirmed.
Issued: April 1, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-1511
Issued: January 24, 2012

Case Submitted on the Record

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

JURISDICTION
On June 14, 2011 appellant filed a timely appeal from a January 18, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) terminating her benefits effective
February 13, 2011 and from a March 14, 2011 decision denying her request for a hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and
nonmerits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective February 13, 2011; and (2) whether OWCP
properly denied appellant’s request for an oral hearing as untimely filed.
On appeal, appellant contends that the medical evidence establishes that she still has
damage to her neck, and that she is still experiencing pain in her neck and shoulders.

FACTUAL HISTORY
On December 4, 2008 appellant, then a 45-year-old distribution clerk, filed a traumatic
injury claim alleging that on December 3, 2008 she hurt her neck when a package fell while she
was retrieving another package. On February 26, 2009 OWCP accepted her claim for sprain of
the neck and brachial radiculitis.
In a November 3, 2009 report, Dr. Ben Benatar, appellant’s treating Board-certified
orthopedic surgeon, stated that appellant was still complaining of pain in her neck, pain in both
upper shoulder areas, pain extending into her forearm and occasional parethesias in both
forearms. He diagnosed her with cervical radiculopathy and opined that she was disabled. In
subsequent medical reports and duty status reports, Dr. Benatar noted that appellant’s pain had
not improved and that she remained disabled, specifically noting that appellant could not use her
arms lifting, carrying and sorting mail.
Dr. Benatar referred appellant to Dr. Greg M. Szerlip, an osteopath, for a consultation. In
a February 18, 2010 report, Dr. Szerlip listed appellant’s diagnoses as cervical disc displacement,
cervical radiculopathy and cervical paraspinal muscle spasms and recommended that she
undergo a series of cervical epidural steroid injections. He gave her injections on April 15, 2010,
but this injection was not successful in providing relief.
On July 14, 2010 OWCP referred appellant to Dr. P. Leo Varriale, a Board-certified
orthopedic surgeon, for a second opinion. In a July 28, 2010 report, Dr. Varriale diagnosed her
with resolved cervical strain and resolved strain to the right and left shoulders. He noted no
objective findings of cervical strain or brachial radiculitis. Although Dr. Varriale believed that
appellant’s injuries were causally related to the employment injury of December 3, 2008, he
opined that there was no further need for any physical therapy or orthopedic treatment. He
further opined that appellant had no disability at this time and was capable of performing all her
duties as a distribution clerk without any restrictions.
On December 3, 2010 OWCP proposed termination of appellant’s compensation for
wage loss and medical benefits.
In a December 15, 2010 report, Dr. Benatar indicated that appellant’s objective studies
evinced cervical disc herniations and cervical disc neuropathy in both left and right upper
extremities showing positive cervical radiculopathy that are consistent with her injuries. He
opined that she does have a disability which is aggravated by her working conditions and
actually caused by her working conditions. Dr. Benatar considered appellant markedly disabled
and stated that she could not return to work for the employing establishment.
By decision dated January 18, 2011, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective February 13, 2011.
On February 18, 2011 appellant requested an oral hearing before an OWCP hearing
representative. By decision dated March 14, 2011, OWCP denied her request for the reason that
it was not timely filed. It further denied the request as it found that the issue in the case could be
equally well addressed by appellant requesting reconsideration and submitting new evidence.

2

LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability had ceased or that it is no longer related to the
employment.2 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.3 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.4
Furthermore, FECA5 provides that, if there is disagreement between the physician
making the examination for OWCP and the employee’s physician, OWCP shall appoint a third
physician who shall make an examination.6
ANALYSIS
OWCP accepted appellant’s claim for a sprain of the neck and brachial radiculitis, and
compensation and medical benefits were paid. Appellant was treated for her condition by
Dr. Benatar, who has continuously maintained that she remains disabled due to her employmentrelated condition. Dr. Benatar referred appellant to Dr. Szerlip for consultation and injection,
however, Dr. Szerlip noted that the injection given on April 15, 2010 was not successful in
providing appellant relief. OWCP referred appellant to a second opinion from Dr. Varriale, who
concluded that, although her injuries were causally related to the employment injury of
December 3, 2008, she was in no further need for any physical therapy or orthopedic treatment.
Dr. Varriale also opined in his July 28, 2010 report that appellant was capable of performing all
her duties as a distribution clerk without any restrictions. In a December 15, 2010 report,
Dr. Benatar disagreed with Dr. Varriale’s conclusion. He indicated that appellant’s objective
studies evince cervical disc herniations and cervical disc neuropathy in both left and right upper
extremities showing positive cervical radiculopathy that was consistent with appellant’s injuries.
Dr. Benatar concluded that appellant does have a disability which is aggravated, and actually
caused, by her working conditions. He reiterated that appellant was markedly disabled and
stated that she cannot return to work at this time.
In terminating appellant’s compensation and medical benefits, OWCP gave greater
weight to the opinion of Dr. Varriale, the second opinion physician. However, the Board finds
that a conflict existed between appellant’s treating physicians, Drs. Benatar and Szerlip, and the
1

Curtis Hall, 45 ECAB 316 (1994).

2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

4

Calvin S. Mays, 39 ECAB 993 (1988).

5

5 U.S.C. §§ 8101-8193, 8123(a).

6

Id. at § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

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second opinion physician, Dr. Varriale, on the issue of whether appellant had any remaining
disability or residuals from her accepted employment injury, and OWCP should have referred
appellant to an impartial medical specialist7 for resolution thereof, pursuant to 5 U.S.C.
§ 8123(a). Accordingly, OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits, and the Board will reverse the decision terminating benefits. The case is
remanded for payment of appropriate compensation.
CONCLUSION
The Board finds that OWCP did not properly terminate appellant’s wage-loss
compensation and medical benefits effective February 13, 2011. As OWCP’s decision
terminating appellant’s wage-loss compensation and medical benefits is reversed, the second
issue regarding whether OWCP properly denied appellant’s request for a hearing as untimely
filed is moot.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 14 and January 18, 2011 are reversed.
Issued: January 24, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

M.D., Docket No. 11-928 (issued December 1, 2011).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Freehold, NJ, Employer
__________________________________________

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

Docket No. 07-2445
Issued: March 12, 2008

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 September 25, 2007 appellant, through counsel, filed a timely appeal from a merit
decision of the Office of Workers’ Compensation Programs dated August 17, 2006 denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this decision.
ISSUE
The issue is whether appellant has established that he sustained a low back condition
causally related to factors of his federal employment.
FACTUAL HISTORY
On August 24, 2005 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim alleging that in January 1995 he first became aware of his low back condition. On
August 26, 2005 he first realized that his employment duties including walking, carrying mail,
twisting and bending aggravated his condition. The employing establishment controverted
appellant’s claim. Appellant stopped work on June 14, 2005.

In a July 28, 2005 return to work form, Dr. Evander Duck, Jr., a treating physician,
diagnosed lumbar disc herniation and released appellant to work on July 28, 2005.
On September 12, 2005 Dr. Bruce R. Rosenblum, a Board-certified neurosurgeon,
diagnosed lumbar radiculopathy which had been exacerbated by a traumatic injury. He reported
that appellant had sustained a work injury in January 2004 when a dog jumped on him while he
was delivering mail which caused him to fall onto his back. Prior to this injury appellant “had
low back pain with radiation down the left leg,” which worsened within two months of the
injury. An examination revealed left leg weakness and that prolonged standing, sitting or
walking exacerbated the pain.
On September 28, 2005 the Office advised appellant that the medical evidence submitted
was insufficient to support his claim. He was asked to provide a comprehensive medical report
from his attending physician addressing the causal relationship of any diagnosed condition.
In response to the Office’s request, appellant submitted a June 22, 2005 report from
Dr. Duck, reports dated September 12 and October 24, 2004 by Dr. Rosenblum, and reports
dated April 14 and 22, 2005 by Dr. Steven Berkowitz, a treating Board-certified orthopedic
surgeon. He also submitted diagnostic tests and an October 14, 2005 surgical report. Dr. Duck
diagnosed narcotic dependency and intractable low back pain. Appellant related that his back
pain has significantly impaired his quality of life and prevents him from performing daily
functions. A physical examination revealed tenderness upon palpation of the L1-5 lumbar
paraspinal muscles and decreased range of lumbar spinal motion. Dr. Berkowitz diagnosed L3-4
and L4-5 herniated discs with degenerative disc disease and left sacroiliac joint strain/sprain
dysfunction.
In a statement, appellant related having low back pain for the prior 10 years, which was
exacerbated on January 24, 2004 when he was attacked by a dog on his route. It was not until he
had returned to his duties as a letter carrier “that it became apparent to me that my back condition
had worsened.”
Appellant requested light-duty work due to his back condition on
April 25, 2005. The employment duties he alleged aggravated his condition include bending,
lifting, climbing, walking, twisting and carrying a heavy bag. Appellant also attributed the
aggravation of his back condition to the January 24, 2004 dog attack. He stated that he had been
a mail carrier for 28½ years and, as a result, he developed low back pain, which increased over
the years.
On October 24, 2005 Dr. Rosenblum reported that appellant had “some residual left-sided
low back pain status post multiple level lumbar decompression.”
By decision dated January 25, 2006, the Office denied his claim on the grounds that the
medical evidence was insufficient to establish that he sustained an injury due to the established
employment factors.
In a January 30, 2006 letter, appellant’s counsel requested an oral hearing before an
Office hearing representative, which was held on May 9, 2006.
In a February 27, 2006 report, Dr. Robert Dennis, an examining Board-certified
orthopedic surgeon, reviewed the medical records and performed a physical examination. He
2

diagnosed chronic cervical strain/sprain, lumbar strain/sprain, L3-4 and L4-5 herniated discs,
cervical and lumbar degenerative disc disease, and lumbar stenosis; all aggravated by the
January 24, 2004 dog attack.
Subsequent to the hearing, appellant submitted a January 8, 2006 report from
Dr. Rosenblum who opined that appellant’s January 24, 2004 employment injury aggravated his
preexisting lumbar/sacral spine syndrome.
By decision dated July 21, 2006, the Office hearing representative affirmed the denial of
appellant’s claim.
On June 18, 2007 appellant’s counsel requested reconsideration and submitted a May 20,
2007 report from Dr. Martin Riss, an examining osteopath specializing in family practice.
Dr. Riss reviewed the medical evidence, employment history and performed a physical
examination. Appellant first injured his back in 1991 while lifting a parcel at work and again on
January 24, 2004 when he was attacked by a dog. Dr. Riss stated that appellant’s return to work
as a carrier further aggravated his back condition as evidenced by his complaints of back pain in
March 2004. Appellant stopped work in April 2005 due to his inability to perform his duties as a
letter carrier. The physical examination revealed lumbar tenderness on palpation “spasm over
the left lumbar paravertebral muscles” and normal deep tendon reflexes and sensation. Range of
motion included 50 degrees flexion, 5 degrees extension, 50 degrees right rotation, 30 degrees
left rotation, 50 degrees right rotation, 35 degrees left rotation and 10 degrees right and left-side
bending. Dr. Riss diagnosed an aggravation of his preexisting lumbar condition, causing
intractable severe back pain, left-side lumbosacral radiculopathy and status post L2-3, L3-4, and
L4-5 hemilaminectomy, foraminotomy and medial facetectomy and L3-4 discectomy. As to the
January 24, 2004 employment injury, he diagnosed lumbar radiculopathy, L3-4 and L4-5
herniated nucleus pulposus L2-3 and L5-S1 diffuse disc bulges, L2-3 foraminal and spinal
stenosis, left sacroiliac joint strain/sprain dysfunction, T10-11 degenerative disc disease and
thoracic sprain. Dr. Riss opined that appellant was totally disabled due to his back condition. He
attributed appellant’s low back surgery to the January 24, 2004 employment injury and his
subsequent return to work performing his duties as a letter carrier.
By decision dated August 17, 2007, the Office denied modification of its January 21,
2006 decision. The Office determined that the medical evidence was insufficiently rationalized
to establish that appellant’s back condition was aggravated by his employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was filed within
the applicable time limitation; that an injury was sustained while in the performance of duty as
alleged; and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.2 These are the essential elements of each and every
1

5 U.S.C. §§ 8101-8193.

2

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

3

compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;4 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;5 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
The medical evidence required to establish causal relationship generally is rationalized
medical opinion 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.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,8 must be one of reasonable medical certainty9 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10
ANALYSIS
Appellant submitted insufficient medical evidence to establish that his low back
condition was caused or aggravated by factors of his federal employment. The medical evidence
of record fails to provide any explanation of how his federal work duties caused or contributed to
his diagnosed conditions. The Office informed appellant of the evidence needed to establish his
claim in its letter of September 28, 2005.
On July 28, 2005 Dr. Duck diagnosed lumbar disc herniation. In a June 22, 2005 report,
he diagnosed narcotic dependency and intractable low back pain. On April 14 and 22, 2005
Dr. Berkowtiz diagnosed L3-4 and L4-5 herniated discs with degenerative disc disease and left
sacroiliac joint strain/sprain dysfunction. However, neither Dr. Berkowitz nor Dr. Duck
provided an opinion regarding the cause of these diagnosed conditions. Medical evidence which
3

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

4

Michael R. Shaffer, 55 ECAB 386 (2004).

5

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

7

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

8

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

9

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

10

Judy C. Rogers, 54 ECAB 693 (2003).

4

does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.11
Appellant submitted hospital and diagnostic reports regarding a back condition; however,
these reports do not contain a discussion on causal relationship. As noted, the requisite evidence
needed to establish the claim was a medical report from a physician explaining how his federal
employment contributed to his diagnosed conditions.12
Appellant also submitted reports dated September 12, 2005 to January 8, 2006 by
Dr. Rosenblum, who diagnosed lumbar radiculopathy which he opined had been aggravated in
January 2004 when appellant was attacked by a dog. On October 24, 2005 Dr. Rosenblum
reported that appellant was doing well following his surgery. He diagnosed a preexisting
lumbar-sacral spinal condition, which he opined had been aggravated by appellant’s
January 2004 employment-related injury. Dr. Rosenblum did not adequately explain the basis
for concluding that appellant’s condition was related to a history of bending, lifting, climbing,
walking, twisting and carrying a heavy bag at work. Similarly, Dr. Dennis diagnosed chronic
cervical strain/sprain, lumbar strain/sprain, L3-4 and L4-5 herniated discs, cervical and lumbar
degenerative disc disease, and lumbar stenosis, but failed to provide medical reasoning or
rationale to explain how appellant’s condition was related to his activities or a letter carrier.
While the reports by Drs. Dennis and Rosenblum might be germane to a claim for a traumatic
injury occurring within one workday, they are of diminished probative value with regard to
appellant’s occupational disease claim. Neither Dr. Dennis nor Dr. Rosenblum addressed how
the implicated employment factors caused or aggravated the diagnosed back conditions or
contributed to the aggravation of appellant’s back condition.13 Appellant has not submitted
sufficient rationalized medical evidence from Drs. Dennis and Rosenblum supporting that his
diagnosed condition is causally related to his federal employment work activities.
Appellant also submitted a report by Dr. Riss who diagnosed an aggravation of
preexisting lumbar left sided lumbosacral radiculopathy and status post L2-3, L3-4, and L4-5
hemilaminectomy, foraminotomy and medial facetectomy and L3-4 discectomy. Dr. Riss
concluded that appellant’s back condition had been aggravated by the dog bite and “was further
aggravated after he returned to work as a letter carrier.” He opined that appellant’s return to
work performing his duties as a letter carrier contributed to appellant’s need for low back
surgery. Dr. Riss provided no explanation other than a conclusory statement that appellant’s
back condition had been aggravated by his employment duties. He did not provide adequate
medical rationale to explain how the various conditions he diagnosed had been caused or
aggravated by his employment duties.14 Without additional explanation or rationale, Dr. Riss’
report is insufficient to establish causal relationship or show that appellant’s condition had been
11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Michael E. Smith, 50 ECAB
313 (1999).
12

J.Z., 58 ECAB ___ (Docket No. 07-531, issued May 11, 2007); Victor J. Woodhams, 41 ECAB 345 (1989).

13

See 20 C.F.R. §§ 10.5(q), (ee), for the Office’s definition of an occupational disease and traumatic injury,
respectively.
14

See A.D., supra note 11; Leslie C. Moore, supra note 7.

5

caused or aggravated by his employment duties. The Board finds that his report is insufficient to
establish a causal relationship between appellant’s diagnosed condition and employment factors,
as Dr. Riss did not provide sufficient explanation or rationale to fortify his conclusions.
CONCLUSION
The Board finds that appellant has not established that his low back condition was
causally related to the factors of employment he identified.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2006 is affirmed.
Issued: March 12, 2008
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF THE NAVY, NORTH
ISLAND NAVAL SUPPLY, San Diego, CA,
Employer
__________________________________________

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

Docket No. 09-564
Issued: September 16, 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 23, 2008 appellant filed a timely appeal of the September 23, 2008 merit
decision of the Office of Workers’ Compensation Programs, finding that he received an
overpayment in the amount of $1,038.12 for which he was at fault. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the overpayment.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,038.12 from November 15 through 26, 2005 after he returned to work; and
(2) whether the Office properly found that appellant was at fault in creating the overpayment
and, therefore, ineligible for waiver of the recovery.
FACTUAL HISTORY
By letter dated April 18, 2005, the Office accepted that on March 9, 2005 appellant, then
a 63-year-old industrial equipment repairer, sustained bilateral wrist fractures, bilateral small
subdural hematomal hemorrhage, closed right frontal sinus fracture of the malar and maxillary
bones, closed skull fracture with no mention of intracranial injury, open forehead

wound/laceration with no complication, right wrist abscess and benign paroxysmal positional
vertigo while in the performance of duty. On July 19, 2005 the Office placed him on the
periodic rolls. Appellant was advised to notify the Office immediately when he returned to work
to avoid an overpayment of compensation, and that, if he worked during any period covered by a
compensation payment, he must return the payment to the Office. He returned to full-time lightduty work on November 15, 2005.
On August 12, 2008 the Office made a preliminary determination that appellant received
an overpayment in the amount of $1,038.12, from November 15 through 26, 2005, because he
received wage-loss compensation for total disability after his return to full-time work and salary.
An overpayment worksheet noted a periodic payment for the stated period in the amount of
$1,038.12 by direct deposit. Appellant was found at fault in the creation of the overpayment. He
was advised that he could request a telephone conference, a final decision based on the written
evidence only or a hearing within 30 days of the date of the letter if he disagreed that the
overpayment occurred, if he disagreed with the amount of the overpayment and if he believed
that recovery of the overpayment should be waived. The Office requested that he complete an
accompanying overpayment recovery questionnaire (Form OWCP-20) and submit financial
documents in support thereof within 30 days. Appellant did not respond within the allotted time
period.
By decision dated September 23, 2008, the Office finalized the determination that
appellant received an overpayment for which he was at fault in the amount of $1,038.12 for the
period November 15 through 26, 2005. It directed him to either repay the overpaid amount in
full or contact the Office within 30 days to arrange a repayment plan.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty.2 Section
8116 of the Act defines the limitations on the right to receive compensation benefits. This
section of the Act provides that, while an employee is receiving compensation, he or she may not
receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.3
Section 10.500 of the Office’s regulations provides that compensation for wage loss due
to disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.4

1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

3

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

4

20 C.F.R. § 10.500.

2

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,038.12 from November 15 through 26, 2005. The record supports that he received wageloss compensation for temporary total disability after he returned to full-time light-duty work on
November 15, 2005 at his regular salary. As noted, a claimant is not entitled to compensation
after returning to work at wages equal to or exceeding those earned on the date of injury. The
Board, therefore, finds that appellant’s receipt of compensation created an overpayment in the
amount of $1,038.12 for the stated period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act5 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.6 The Office may not waive the overpayment of compensation
unless appellant was without fault.7 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.8
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect;
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known was
incorrect.”9
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the

5

5 U.S.C. § 8129(b).

6

Michael H. Wacks, 45 ECAB 791, 795 (1994).

7

Norman F. Bligh, 41 ECAB 230 (1989).

8

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

9

20 C.F.R. § 10.433(a).

3

complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”10
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment because he knew
or should have known he was not entitled to wage-loss compensation for total disability during
the period November 15 through 26, 2005 when he also earned his full salary. In order for the
Office to establish that he was at fault in creating the overpayment of compensation, it must
establish that, at the time appellant received the compensation check in question, he knew or
should have known that the payment was incorrect.11
Based on the circumstances of this case, the Board finds that appellant is not with fault in
creating the overpayment. The Office found that appellant however should have known that he
received an incorrect payment for total temporary disability because he had been advised to
return any money he received after returning to work. Appellant returned to work on
November 15, 2005, but did not return compensation received after that date, even though he
knew or should have known that an overpayment would be created if he accepted compensation
benefits after his return to work. The Board has found a claimant to be at fault in cases where he
or she is receiving compensation checks through direct deposit which involve a series of
payments over several months with clear knowledge that the payments were incorrect.12 It is not
appropriate, however, to make a finding that a claimant has accepted an overpayment by direct
deposit until such time as a reasonable person would have been aware that an overpayment had
occurred. This awareness could be established either through documentation such as a bank
statement or notification from the Office or where a reasonable period of time has passed during
which a claimant could have reviewed independent confirmation of the incorrect payment.13
In this case, appellant received an overpayment of compensation in the amount of
$1,038.12 by direct deposit. Since Office regulations define fault by what the claimant knew or
should have known at the time of acceptance, one of the consequences of electronic fund
transfers is that in many cases the claimant will not be at fault for accepting the first incorrect
payment because the requisite knowledge is lacking at the time of deposit.14 Appellant had no
reason to suspect at the time the $1,038.12 overpayment was deposited into his checking account
that the Office had issued an incorrect payment, given that this was the first incorrect payment
made by the Office.15 As the funds were deposited directly into his bank account, he was not in
a position to immediately decline acceptance of the amount paid by the Office. The Board finds

10

Id. at § 10.433(b); Diana L. Booth, supra note 8.

11

Diana L. Booth, supra note 8.

12

See Karen K. Dixon, 56 ECAB 145 (2004).

13

See K.H., Docket No. 06-191 (issued October 30, 2006).

14

See Karen K. Dixon, supra note 12.

15

See Tammy Craven, 57 ECAB 689 (2006).

4

that appellant was not at fault in either creating or accepting the overpayment of $1,038.12 for
the period November 15 through 26, 2005.16
Since appellant was without fault in the creation of the overpayment, the Office may only
recover the overpayment in accordance with section 8129(b) of the Act17 if a determination has
been made that recovery of the overpayment would neither defeat the purpose of the Act nor be
against equity and good conscience.18 The case will be remanded to the Office for further
development with respect to whether appellant is entitled to waiver of the $1,038.12
overpayment. After such further development as the Office may find necessary, it should issue
an appropriate decision on the issue of whether the recovery of the overpayment should be
waived.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,038.12, during the period November 15 through 26, 2005 because he received wage-loss
compensation after he returned to work at full salary. The Board, however, finds that the Office
improperly found that appellant was at fault in creating the overpayment. The case is remanded
to determine whether waiver of the recovery of the overpayment is warranted.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed and remanded in part.
Issued: September 16, 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
16

Id.

17

5 U.S.C. § 8129(b).

18

The guidelines for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.434, 10.436, 10.437.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF CENTRAL
OPERATIONS, Baltimore, MD, Employer
__________________________________________
Appearances:
Milo G. Martin, Jr., for the appellant
No appearance, for the Director

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Docket No. 09-733
Issued: November 9, 2009

Oral Argument September 23, 2009

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

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from the December 3, 2008 merit
decision of the Office of Workers’ Compensation Programs, which affirmed the denial of his
recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant’s herniated disc at L5-S1 is causally related to his
September 14, 2006 employment injury.
FACTUAL HISTORY
On September 14, 2006 appellant, then a 60-year-old materials handler, sustained an
injury in the performance of duty when he was using power equipment. He tried to turn a corner
while walking an electric pallet power jack. The jack pulled on appellant, throwing him against

the frame of the warehouse doorway. He stopped work that day. Appellant was released to
resume full-time duty with no restrictions on September 28, 2006. The Office accepted his claim
for lumbar sprain and right hand sprain.
On May 1, 2008 appellant filed a claim for compensation alleging that he sustained a
recurrence of disability causally related to his September 14, 2006 employment injury. He
indicated that he had a herniated disc and was limited to no heavy lifting with possible surgery.
On April 5, 2007 Dr. Robert A. Kroopnick, a Board-certified internist and appellant’s
primary care physician, reported that appellant appeared to have a reexacerbation of his
September 14, 2006 injuries: “He now has reinjured the above structures and is again
experiencing moderate incapacitating pain.”
An April 4, 2008 magnetic resonance imaging (MRI) scan showed spondylotic change
and right paracentral disc protrusion at L5-S1 with probable compression of the right S1 nerve
root and a mild bulging annulus at L4-5. On May 1, 2008 Dr. Kroopnick reported: “This injury
[is] a direct result of the aforementioned fall which there has been extensive corresponds [sic] to
this point.”
In a decision dated June 19, 2008, the Office denied appellant’s recurrence claim. Noting
a break in medical treatment from September 28, 2006 to April 5, 2007, a lack of bridging
medical evidence, and a lack of medical rationale to explain how appellant sustained the
herniated disc found on April 4, 2008, the Office found that his need for medical treatment was
not established to be causally related to the September 14, 2006 incident.
Dr. Kroopnick disagreed with the Office’s decision. On July 15, 2008 he noted that
appellant was first injured on September 14, 2006 and that an MRI scan was recommended to
determine whether he had a herniated disc, but appellant could not do it. “It was my opinion that
he most assuredly had a herniated dis[c] at that time which is apparent in my notes. I would not
have recommended it if this was not my opinion.” Dr. Kroopnick noted that as time went on and
appellant did not get better, he eventually obtained an MRI scan, which demonstrated discogenic
disease requiring surgery.
On July 15, 2008 Dr. Neal J. Naff, a Board-certified neurosurgeon, who performed
surgery on appellant on June 2, 2008, explained that it was well known that herniated discs can
occur with repetitive strain activities at work. “Therefore it is very reasonable to note that
[appellant’s] injury was related to his on-the-job injury.”
On November 14, 2008 Dr. Robert A. Smith, a Board-certified orthopedic surgeon and
Office referral physician, related appellant’s history of injury and his findings on physical
examination. He reviewed the April 2, 2008 MRI scan as well as an MRI scan obtained on
July 13, 2006, two months before appellant’s employment injury. The July 2006 MRI scan

2

showed a small right paracentral focal disc extrusion at L5-S1 which contacted the traversing
right S1 nerve root. Dr. Smith offered his opinion on causal relationship:
“It appears that the only accepted conditions for the reported incident of
September 14, 2006, [were] a soft tissue sprain of the hand which is obviously
completely recovered at this time and a soft tissue sprain of the back which,
according to the examination, has also recovered. Based on the findings of the
two MRI [s]cans from July 2006 and April 2008, there does not appear to be any
causal connection between the reported herniated disc at L5-S1 and the
September 14, 2006, work incident. This is based on the fact that there is no
interval change noted between the two MRI [scan] [s]tudies, one done before the
reported accident and one done after the reported accident. As noted, the spine
surgery that [appellant] had by Dr. Naff in June 2008 is, therefore, unrelated to
the work incident of September 14, 2006.”
In a decision dated December 3, 2008, the Office reviewed the merits of appellant’s claim
and denied modification of its prior decision. It noted that neither Dr. Kroopnick nor Dr. Naff
addressed the June 2006 MRI scan. The Office found that the weight of the medical opinion
evidence rested with Dr. Smith, who reported no interval change on the postinjury MRI scan.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.1 A
claimant seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim by the weight of the evidence,2 including that he sustained an injury in the
performance of duty and that any specific condition or disability for work for which he claims
compensation is causally related to that employment injury.3
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a
causal connection between his claimed condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury, and must explain from a medical perspective how the claimed
condition is related to the injury.4

1

5 U.S.C. § 8102(a).

2

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

3

ANALYSIS
The issue raised by appellant’s May 1, 2008 claim for compensation is whether his
herniated disc at L5-S1 and back surgery of June 2, 2008 are causally related to the
September 14, 2006 injury. Appellant bears the burden of proof to establish such a connection
by submitting a well-reasoned medical opinion explaining how the September 14, 2006 injury
caused or contributed to his herniated disc condition such that he required surgery.
Dr. Kroopnick, the primary care physician, disagreed with the denial of appellant’s claim.
He diagnosed appellant as having sustained a herniated disc following the September 14, 2006
employment injury, which was borne out by the later MRI scan. However, Dr. Kroopnick did
not explain how he was able to determine that the incident on September 14, 2006 caused the
herniated disc. The mere fact that a medical condition is seen after an incident at work does not
establish a causal connection.5 The opinion of Dr. Kroopnick is not well rationalized in the
absence of his review of diagnostic testing preexisting the September 14, 2006 injury.6
Dr. Naff, the surgeon, also opined that the herniated disc seen on the April 2008 MRI
scan was related to appellant’s on-the-job injury. He stated that it is well known that herniated
discs can occur with repetitive strain activities at work, but appellant did not attribute her
condition to repetitive activities. Appellant claimed a specific traumatic injury on September 14,
2006 when he tried to turn a corner while walking an electric pallet power jack. The jack pulled
on him, throwing him against the frame of the warehouse doorway. Dr. Naff did not explain
how this traumatic incident, not repetitive activities at work, caused appellant’s herniated disc.
Moreover, he did not address the July 13, 2006 MRI scan obtained two months before the
September 14, 2006 employment injury. This imaging study, as reviewed by Dr. Smith, showed
the same disc extrusion at L5-S1 and contact with the right S1 nerve root. It appears that the
L5-S1 herniated disc preexisted the employment injury, a subject appellant’s physicians did not
discuss. Moreover, Dr. Smith found that the April 2008 MRI scan findings demonstrated no
significant interval change from July 2006. Because the medical evidence appellant submitted to
support his claim does not establish a causal relationship between his herniated disc at L5-S1, for
which he had surgery, and the incident at work on September 14, 2006, the Board finds that he
has not met his burden of proof. The Board will therefore affirm the Office’s December 3, 2008
decision denying compensation for appellant’s herniated disc.
On appeal, appellant contended that the September 14, 2006 incident did not cause his
herniated disc. He stated that the herniation seen on the July 2006 MRI scan came from repeated
heavy lifting on the loading docks beginning in May 2006, after his position changed from audio
visual specialist to materials handler. Appellant noted that the September 14, 2006 incident
simply compounded a preexisting work injury. The Board notes that this issue was not raised
before the Office or adjudicated in the decision currently on appeal. The only issue before the
Board on this appeal is whether a causal relationship exists between his herniated disc and the
accepted employment injury on September 14, 2006.

5

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

6

See Louis T. Blair, Jr., 54 ECAB 348 (2003).

4

Appellant also contends that his back problems are not service connected. He had back
pain for only two months in 1983 while serving in the army, but he did not have back pain prior
to May 2006. This is apparently in response to Dr. Smith’s observation that: “[Appellant]
reports a history of prior back pain and a prior right knee and leg injury when he was in the
service.” Again, this was not a factor in the Office’s decision. The Office did not deny benefits
because of any back pain appellant may have had in the Army. It denied benefits because neither
Dr. Kroopnick nor Dr. Naff offered a sound, well-reasoned opinion explaining how the
September 14, 2006 incident caused or aggravated appellant’s herniated disc at L5-S1. Causal
relationship is a medical issue. The second opinion obtained from Dr. Smith, who offered
rationale negating causal relationship, represents the weight of medical evidence as it is based on
an accurate history of injury and a comparison of the relevant diagnostic studies.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
herniated disc at L5-S1 is causally related to his September 14, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2009
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

5