United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
AVIATION DEPOT, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 09-1493
Issued: February 2, 2010

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 May 27, 2009, appellant filed a timely appeal from the March 17, 2009 decision of
the Office of Workers’ Compensation Programs, which denied his reconsideration request on the
grounds that it was untimely filed and failed to present clear evidence of error. Because more
than one year has elapsed between the last merit decision dated August 15, 2002 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

FACTUAL HISTORY
This is the fifth appeal in the present case.1 In a January 28, 1988 decision, the Board
affirmed Office decisions denying appellant’s claim for a pulmonary condition causally related
to his employment.2 On May 9, 2001 the Board affirmed the Office’s August 17, 2000 decision,
finding that it properly terminated appellant’s compensation benefits effective August 15, 1999
on the basis that he had no continuing disability due to his work-related dermatitis.3 In an
April 23, 2004 decision, the Board affirmed a September 15, 2003 Office decision, finding that
the Office properly denied appellant’s request for reconsideration without a merit review.4 In a
July 14, 2005 decision, the Board affirmed a December 9, 2004 Office decision that found that
appellant’s request for reconsideration was untimely filed and did not establish clear evidence of
error.5 The law and the facts of the case are set forth in the Board’s prior decisions and are
incorporated herein by reference.
In a letter to the Office dated February 25, 2009, appellant requested reconsideration. He
asserted that he continued to experience ongoing health problems. Appellant submitted
treatment notes dated June 6, 2006 and October 14, 2008 from Dr. Dan M. Henshaw, a Boardcertified dermatologist, who advised appellant that he was unable to provide a more definitive or
explicit explanation for the etiology of his condition and that appellant should be “considered
favorably” for workers’ compensation benefits. On October 14, 2008 Dr. Henshaw noted
treating appellant since June 2003 following a work history of exposure to various chemicals
used in cleaning, spraying and sandblasting aircraft. He noted areas of appellant’s back, arms
and legs were broken out, itching and burning. Dr. Henshaw diagnosed atopic dermatitis,
manifested clinically in the form of nummular eczema. He noted that in the five years since
appellant’s first visit, he had been treated for flare-ups of the condition, usually characterized by
severe itching, burning and stinging. On July 7, 2008 appellant presented with pruritic, lichenoid
and slightly popular eczematous dermatitis, which was worse on his arms and legs. Dr. Henshaw
prescribed additional topical ointments. He opined that, based on history, it seemed likely that
appellant would continue to have flare-ups of his condition, which would require ongoing
treatment.
By decision dated March 17, 2009, the Office denied appellant’s application for
reconsideration on the grounds that the request was not timely and did not establish clear
evidence of error.6
1

In a decision dated February 8, 1989, the Office accepted appellant’s claim for irritant dermatitis and paid
appropriate wage-loss compensation. Effective August 15, 1999, the Office terminated appellant’s compensation
benefits on the basis that he had no continuing disability due to his work-related dermatitis.
2

Docket No. 88-154 (issued January 28, 1988).

3

Docket No. 01-202 (issued May 9, 2001).

4

Docket No. 04-515 (issued April 23, 2004).

5

Docket No. 05-808 (issued July 14, 2005).

6

In this decision, the Office incorrectly noted that the last merit decision was September 15, 2003. The record
reflects that the most recent merit decision of the Office was August 15, 2002.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act7 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.8 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).9 As one such limitation, the Office has stated that
it will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.10 The Board has found that the imposition of
this one-year limitation does not constitute an abuse of the discretionary authority granted the
Office under section 8128(a).11
However, the Office will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation, if the claimant’s application for review shows clear evidence of error
on the part of the Office in its most recent merit decision. To establish clear evidence of error, a
claimant must submit evidence relevant to the issue that was decided by the Office. The
evidence must be positive, precise and explicit and must be manifested on its face that the Office
committed an error.12 Evidence that does not raise a substantial question concerning the
correctness of the Office’s decision is insufficient to establish clear evidence of error. It is not
enough merely to show that the evidence could be construed so as to produce a contrary
conclusion. This entails a limited review by the Office of how the evidence submitted with the
reconsideration request bears on the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.13
ANALYSIS
In its March 17, 2009 decision, the Office properly determined that appellant did not file
a timely application for review. The most recent merit decision is the Office August 15, 2002
decision that denied modification of the termination of appellant’s compensation benefits for his
dermatitis condition. Appellant’s February 25, 2009 request for reconsideration was more than
one year after August 15, 2002. Therefore, it was not timely filed.
The Board also finds that appellant has not established clear evidence of error on the part
of the Office. Appellant submitted reports from Dr. Henshaw dated June 6, 2006 and
7

5 U.S.C. §§ 8101-8193.

8

5 U.S.C. § 8128(a).

9

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

10

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

11

Sean C. Dockery, 56 ECAB 652 (2005); Mohamed Yunis, 46 ECAB 827, 829 (1995).

12

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

13

E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Cresenciano Martinez, 51 ECAB 322 (2000);
Thankamma Mathews, 44 ECAB 765, 770 (1993).

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October 14, 2008. Dr. Henshaw reviewed appellant’s history of treatment and his most recent
symptoms. He opined that appellant would likely continue to have flare-ups of his dermatitis
condition and require ongoing treatment. However, this report does not address the basis on
which appellant’s benefits were terminated in 1999 as the condition was found not to cause
disability for work. In a June 6, 2006 report, Dr. Henshaw advised appellant that he was unable
to provide a more definitive explanation for the etiology of his condition but that appellant
should be “considered favorably” for workers’ compensation benefits.14 Again, Dr. Henshaw
did not address the prior termination of benefits based on appellant’s capacity for work. His
reports are insufficient to show clear evidence of error. To establish clear evidence of error, it is
not enough merely to show that the evidence could be construed so as to produce a contrary
conclusion. The term “clear evidence of error” is intended to represent a difficult standard. The
submission of a detailed well-rationalized medical report, which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.15 This evidence is not so positive, precise and explicit that it
manifests on its face that the Office committed an error.
Consequently, the Board finds that Dr. Henshaw’s reports submitted on reconsideration
are insufficient to raise a substantial question as to the correctness of the Office’s decision.
Thus, appellant has not established clear evidence of error by the Office in its August 15, 2002
decision.

14

Dr. Henshaw previously submitted an October 4, 2004 report, noted in the Board’s July 14, 2005 decision,
supra note 4, which also indicated that appellant should be “considered favorably” for workers’ compensation
benefits.
15

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); see Federal (FECA) Procedure Manual, Part
2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (January 2004).

4

CONCLUSION
The Board, therefore, finds that the Office properly determined that appellant’s request
for reconsideration dated February 25, 2009 was untimely filed and did not demonstrate clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2010
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 08-451
Issued: October 17, 2008

Case Submitted on the Record

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

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from an August 31, 2007 decision
of the Office of Workers’ Compensation Programs which denied his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of his
claim.
ISSUE
The issue is whether appellant sustained a traumatic injury in the performance of duty.
FACTUAL HISTORY
On March 3, 2007 appellant, then a 52-year-old part-time flexible city carrier, filed a
traumatic injury claim alleging that on that day when he opened the side door of the vehicle and
strained his back.
In a March 8, 2007 letter, the Office requested additional factual and medical evidence to
support appellant’s claim including a physician’s opinion as to how the incident caused his
condition. Appellant responded in a March 14, 2007 letter in which he explained that he opened

the vehicle door, set a tub on the seat and began sorting the mail in the tub and felt a pain in his
back between but below his shoulder blades. He guessed that he may have injured himself when
he opened the truck door. Appellant also stated that he did not have any symptoms before the
incident.
In a March 3, 2007 urgent care visit report, Dr. Dennis W. Peck, Board-certified in family
medicine, noted that appellant opened the door of the truck, climbed in and felt middle back pain
between the shoulder blades which felt like a cramp. He also noted that appellant stated that his
injury was work related. Dr. Peck diagnosed appellant with thoracic sprain and recommended no
heavy lifting.
On April 18, 2007 the Office denied appellant’s traumatic injury claim finding that
evidence was insufficient to establish that the events occurred as alleged and additionally that
there was no medical evidence diagnosing a condition connected with the claimed events.
On May 13, 2007 appellant requested a review of the written record.
On August 31, 2007 the Office denied appellant’s claim based on a review of the record.
It found that the evidence established that the identified incident occurred as alleged and
established the factual component of the claim. The Office also found that while the medical
evidence established that appellant sustained a diagnosed condition it did not establish that this
diagnosed condition was a result of the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 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.3
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.
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.4 Second, the

1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

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

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
ANALYSIS
Appellant alleges that he sustained a back condition when he opened his truck door on
March 3, 2007 in the performance of duty. The Office accepted that the incident occurred as
alleged. The medical evidence establishes that appellant was diagnosed with a thoracic sprain.
The question for determination is whether the accepted employment injury, opening a truck door,
caused appellant’s thoracic sprain.
In order to establish that the employment incident caused an injury appellant must
establish through medical evidence that he has a diagnosed condition causally related to the
incident. Appellant submitted a report from Dr. Peck who diagnosed thoracic sprain and noted
that appellant felt the injury was work related. However, Dr. Peck never offers an opinion as to
the cause of appellant’s condition. While his report establishes that appellant had a thoracic
sprain it does not establish that the thoracic sprain was causally related to the March 3, 2007
incident. To establish causal relationship, appellant must submit a physician’s report in which
the physician reviews the employment factors identified by appellant as causing his condition
and, taking these factors into consideration as well as findings upon examination, state whether
the employment injury caused or aggravated the diagnosed conditions and present medical
rationale in support of his or her opinion.6 No such physician opinion was submitted which
provided the necessary medical rationale to explain how opening the truck door physiologically
caused appellant’s thoracic strain. The Board finds that appellant has not met his burden to
establish that his thoracic sprain was causally related to the accepted employment incident.
CONCLUSION
The Board finds that appellant has not established that he sustained a traumatic injury in
the performance of duty.

5

Id. For a definition of the term traumatic injury, see 20 C.F.R. § 10.5(ee). For a definition of the term
occupational disease or illness, see 20 C.F.R. § 10.5(g).
6

D.D., 57 ECAB 734 (2006), Calvin E. King, 51 ECAB 394 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the August 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 17, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUBMARINE BASE, Groton, CT, Employer
__________________________________________

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

Docket No. 12-340
Issued: August 24, 2012

Case Submitted on the Record

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

JURISDICTION
On December 5, 2011 appellant, through her attorney, filed a timely appeal of a
September 9, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for recurrence of disability. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability on January 14, 2009 causally related to her January 24, 1994 employment injury.
On appeal, counsel argued that the reports of Dr. Peter Barcas, an osteopath, and
Dr. Scott Metzger, a Board-certified anesthesiologist, constitute prima facie evidence of her
recurrence of disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 1, 1994 appellant, then a 52-year-old supply technician, filed a traumatic
injury claim alleging that on January 24, 1994 she slipped on an icy sidewalk at work. She
alleged that she sustained cervical strain and contusions to both shoulders. On June 6, 1994
OWCP accepted her claim for cervical strain. A magnetic resonance imaging (MRI) scan in
November 1994 demonstrated a large disc herniation at C6-7. Appellant underwent an anterior
cervical fusion authorized by OWCP on December 7, 1995.2 She filed a notice of recurrence of
disability on September 23, 1994 alleging that on August 16, 1994 she sustained additional
disability due to her January 24, 1994 employment injury. Appellant filed additional recurrence
claims on January 20, 2000 and December 5, 2002. OWCP authorized medical treatment.
Appellant underwent additional cervical surgery in January 2003. On March 21, 2007 she
received a schedule award for an additional 25 percent impairment of her right upper extremity.
In an opinion dated October 31, 2007, an OWCP medical adviser opined that appellant sustained
a cervical herniated disc on January 24, 1994. OWCP included this as an accepted condition on
November 13, 2007. By decision dated March 26, 2008, appellant received a schedule award for
19 percent impairment of her left upper extremity.
Dr. Carrie Edelman, a Board-certified rheumatologist, completed a work capacity
evaluation on May 4, 2008 and opined that appellant was totally and permanently disabled. In a
letter dated February 10, 2009, appellant stated that she was unable to resume her employment
activities. She completed a claim for compensation on March 26, 2009. Dr. Edelman completed
a second work capacity evaluation on April 20, 2009 and stated that appellant could not perform
her usual job as she could not sit in front of a screen, drive a truck or perform data entry. She
opined that appellant fatigued easily and could not work.
On April 20, 2009 appellant filed a notice of recurrence of disability alleging that she
sustained a recurrence of her January 24, 1994 employment injury on that date. The employing
establishment indicated that she utilized disability retirement on October 31, 1994.
In a letter dated July 7, 2009, OWCP requested that appellant provide additional factual
and medical evidence in support of her recurrence claim. Appellant submitted a narrative
statement on July 13, 2009 describing her daily limitations and activities. She submitted work
capacity evaluations from Dr. Peter Barcas, an osteopath dated July 9, 2009 and a similar form
report from a physician whose signature is illegible.
By decision dated September 1, 2009, OWCP denied appellant’s claim for recurrence.

2

On August 2, 1990 appellant filed a claim for right forearm sprain under OWCP File No. xxxxxx456. OWCP
accepted this claim on December 10, 1990. Appellant returned to full duty on August 9, 1990. She filed a
recurrence in this claim on November 2, 1992 which OWCP denied on March 16, 1993. By decision dated
August 2, 2001, OWCP granted appellant a schedule award for 44 percent impairment of her right upper extremity.
Appellant appealed her recurrence claim to the Board and by decision dated January 13, 1997, the Board found that
she had established her claim. Docket No. 95-254 (issued January 13, 1997). On January 5, 1994 appellant filed a
notice of occupational disease alleging that she developed right lateral epicondylitis due to answering telephones,
writing and data entry in the performance of her federal job under OWCP File No. xxxxxx542. OWCP accepted this
claim on July 29, 1994.

2

Dr. Metzger completed a report on March 18, 2010 and noted appellant’s complaints of
neck and right upper extremity pain. He described the employment injury and found left
paracervical pain with palpation and weakness with grip strength bilaterally. Dr. Metzger stated
that appellant did not have a precise diagnosis that would explain why she was so profoundly
symptomatic. OWCP requested additional information from her regarding her current condition
in a letter dated April 22, 2010 and allowed 30 days for a response. Appellant submitted a series
of notes from Dr. Metzger’s office signed by a physician’s assistant dated March 31 and
July 2, 2010.
Appellant requested reconsideration on July 29, 2010. She submitted additional notes
signed by a physician’s assistant dated July 30 and August 13, 2010. Dr. Barcas completed notes
dated January 19 and February 1 and 22, 2010 and diagnosed chronic neck and back pain due to
her employment injuries. He noted appellant’s MRI scan demonstrated degenerative discs.
Dr. Nifa Alcasid, an internist, completed a note on October 30, 2009 and diagnosed
fibromyalgia, chronic joint pains, arthritis and depression. He noted appellant’s history of injury
and opined that her “multiple injuries, systemic fibromyalgia and intermittent inflammatory
arthritis” were due to her 1994 employment injury. By decision dated September 1, 2010,
OWCP reviewed the merits of her claim and denied her claim for recurrence of disability.
Appellant requested reconsideration on February 1, 2011.
She resubmitted the
physician’s assistant’s notes dated July 2 and 30 and August 13, 2010. On September 20, 2010
Dr. Metzger noted appellant’s increasing low back pain. He diagnosed cervical neck pain and
cervical radiculopathy. Dr. Metzger completed a note on December 6, 2010 and stated that
appellant believed her current symptoms were the same as those which developed as a result of
her 1994 employment injury. On January 13, 2011 he stated that her treatment was due to
injuries she sustained as a result of her work-related injury and that she would continue to
experience chronic pain.
On January 4, 2011 Dr. Barcas completed a report noting appellant’s history of injury on
January 24, 1994. He also mentioned that she experienced a motor vehicle accident on
August 17, 2006 which worsened some of her symptoms. Dr. Barcas reviewed his treatment of
appellant and stated, “In summary, [appellant] has a history of a work-related injury in 1994
while working at the Naval Weapons Station Earle. She has had chronic neck and back pain
since then and has been disabled from work.”
By decision dated September 9, 2011, OWCP denied modification of its September 1,
2009 and September 1, 2010 decisions finding that appellant had not submitted sufficient
medical evidence to establish a causal relationship between her current condition and her
accepted employment injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his

3

or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.3 Appellant
has the burden of establishing by the weight of the substantial, reliable and probative evidence, a
causal relationship between her recurrence of disability commencing April 20, 2009 and her
January 24, 1994 employment injury.4 This burden includes the necessity of furnishing medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to employment factors and
supports that conclusion with sound medical reasoning.5
ANALYSIS
In support of her claim for recurrence of disability appellant has submitted supportive
medical evidence from several physicians. Dr. Edelman completed forms on May 4, 2008 and
April 20, 2009 and stated that appellant could not perform her usual job as she could not sit in
front of a screen, drive a truck or perform data entry. She opined that appellant fatigued easily
and could not work. While these forms support appellant’s claim that she was totally disabled
from work, Dr. Edelman did not provide the necessary medical opinion evidence to establish that
her current disability was due to her accepted employment injury of January 24, 1994. Without
medical opinion explaining the causal relationship between appellant’s current condition and her
previously accepted condition Dr. Edelman’s reports are not sufficient to meet her burden of
proof.
Appellant also submitted a series of notes from Dr. Metzger’s office signed by a
physician’s assistant. A physician’s assistant is not a physician under FECA6 and these notes do
not constitute medical evidence. As these notes were not signed by the physician the notes have
no probative value in establishing appellant’s claim.7
Dr. Metzger completed several reports describing appellant’s complaints of neck and
right upper extremity pain and mentioning her January 24, 1994 employment injury. He initially
stated that she did not have a precise diagnosis that would explain why she was so profoundly
symptomatic, but later diagnosed cervical neck pain and cervical radiculopathy. Dr. Metzger
indicated that appellant believed that her current symptoms were due to her employment injury.
The Board has held that a claimant’s belief that a condition was caused, precipitated or
aggravated by employment is not sufficient to establish causal relationship.8 As Dr. Metzger
reported appellant’s beliefs rather than providing his own medical opinion this statement is not
sufficient to meet her burden of proof and establish her claimed recurrence.
3

20 C.F.R. § 10.5(x).

4

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-9 (1982).

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

5 U.S.C. §§ 8101-8193, 8101(2); Thomas R. Horsefall, 48 ECAB 180 (1996).

7

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

8

D.I., 59 ECAB 158 (2007).

4

On January 13, 2011 Dr. Metzger stated that appellant’s treatment was due to injuries she
sustained as a result of her work-related injury and that she would continue to experience chronic
pain. Although this statement supports a causal relationship between her current conditions and
her accepted employment injury, he did not provide any detailed medical reasoning or rationale
explaining why he believed that her 1994 employment injury for which she underwent two
corrective surgeries continued to result in disability for work 17 years later. Without an
explanation of how the 1994 injury continued to impact appellant’s condition as distinguished
from other factors, such as age-related degenerative changes, this report is not sufficient to meet
her burden of proof.
Dr. Barcas described appellant’s medical history including the January 24, 1994
employment injury and a motor vehicle accident on August 17, 2006 which worsened some of
her symptoms. He stated that she had chronic neck and back pain since her 1994 employment
injury. This report fails to adequately explain the relationship between appellant’s accepted
employment injuries and medical treatment and her currently diagnosed conditions. Dr. Barcas
did not explain how her accepted cervical conditions could result in back pain and he did not
differentiate between her cervical pain resulting from the 1996 motor vehicle accident. As this
report lacks a detailed explanation of how appellant’s current condition on or after January 14,
2009 was related to her January 24, 1994 employment injury, this report is not sufficient to meet
appellant’s burden of proof.
Dr. Alcasid diagnosed fibromyalgia, chronic joint pains, arthritis and depression. He
opined that her multiple injuries, systemic fibromyalgia and intermittent inflammatory arthritis
were due to her 1994 employment injury. Again the Board notes that this report is supportive of
appellant’s claim as Dr. Alcasid attributes her currently diagnosed condition to her accepted
employment injury. However, the conditions diagnosed have not been accepted due to the 1994
employment injury and he did not provide any medical reasoning explaining how her traumatic
cervical conditions could result in fibromyalgia, inflammatory arthritis or other “multiple
injuries.” Without further detail and medical rationale this report is not sufficient to meet
appellant’s burden of proof.
The Board finds that, contrary to appellant’s argument on appeal, she has not submitted
the necessary medical opinion evidence to establish that her alleged recurrence of disability on or
after January 14, 2009 was due to her January 24, 1994 employment injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
sustained a recurrence of disability on January 14, 2009 due to her January 24, 1994 employment
injury.

5

ORDER
IT IS HEREBY ORDERED THAT the September 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2012
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Lake City, FL, Employer
__________________________________________

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

Docket No. 10-1674
Issued: June 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 9, 2010 appellant filed a timely appeal of the March 31, 2010 merit decision of
the Office of Workers’ Compensation Programs terminating her medical benefits. Pursuant to
the Federal Employees’ Compensation Act1 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 OWCP properly terminated appellant’s medical benefits effective
March 31, 2010 on the grounds that she no longer had any residuals causally related to her
accepted employment-related orthopedic injuries.
On appeal, appellant contends that her ongoing pain, muscle spasms and emotional
condition are causally related to her accepted conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 18, 1992 appellant, then a 29-year-old physical therapy assistant, filed a
traumatic injury claim under File No. xxxxxx275 alleging that on December 11, 1992 she
developed a sore knot on the right side of her pelvis as a result of lifting a patient out of a Gerichair. She underwent surgery on December 22, 1992 to repair a right femoral hernia. By letter
dated January 12, 1993, OWCP accepted appellant’s claim for a right hernia.
On November 8, 1993 appellant filed an occupational disease claim under File No.
xxxxxx888 alleging that on October 19, 1993 she first became aware of her right inguinal hernia
and realized it resulted from transferring a patient from a stretcher to a lifter to be placed in a
whirlpool.2 On November 19, 1993 she underwent surgery to repair a recurrent right inguinal
hernia. By letter dated February 22, 1994, OWCP accepted appellant’s claim for recurrent right
inguinal hernia. Appellant returned to light-duty work on January 4, 1994.
On August 19, 1994 appellant underwent surgery to repair a recurrent right inguinal
hernia. She returned to light-duty work on October 3, 1994.
Appellant returned to her regular work duties on January 20, 1993. OWCP accepted that
appellant sustained a recurrence of disability on November 22, 1995 causally related to her
December 11, 1992 employment injury.
On October 27, 1997 OWCP accepted appellant’s claim for consequential adjustment
disorder with depressed mood due to pain. Appellant stopped work as of June 5, 2009.
On June 23, 2009 OWCP referred appellant, together with a statement of accepted facts
and medical record, to Dr. Alejandro T. Soler, a Board-certified general surgeon, and
Dr. Wendy L. Vandemark, a Board-certified psychiatrist, for a second opinion on the nature and
extent of her employment-related residuals and disability. In a July 8, 2009 report, Dr. Soler
reviewed a history of the accepted employment injuries and appellant’s medical treatment and
test results. Appellant was initially interviewed in an examination chair. She moved with
unexpected ease from the interview chair to an examination table. There was no hesitation,
grimacing or limitations identified. Appellant lifted herself with ease and without need of
assistance up and onto the examination table. She laid down without any restrictions or
limitations. Appellant moved up on the table to reposition the head and foot rests. To
Dr. Soler’s surprise, she scooted cephalad with ease and performed a partial sit up without
hesitation or evidence of pain. On physical examination of the lower abdominal area, he
reported appellant’s complaint of pain along the entire surgical incision which was basically a
transverse lower abdominal Pfannenstiel incision. Appellant was tender across the entire
incision and equally tender on the left side as compared to the right side where surgery on her
accepted conditions was performed. She did not appear to exhibit any pain with coughing,
straining and sitting up exercises unless she was touched. Dr. Soler advised that a recurrent
hernia was not identified in the inguinal or femoral areas.

2

OWCP combined the claims under File Nos. xxxxxx275 and xxxxxx888 into a master claim assigned File No.
xxxxxx888.

2

Dr. Soler advised that appellant’s demonstration of disabling pain was disproportionate to
the mobility he observed in the examination room and her physical findings. There were
subsequent psychological issues stemming from her initial pain which far outweighed her
physical limitations. Dr. Soler opined that the 1993 employment-related hernia condition had
resolved. He advised that no further diagnostic tests were necessary to provide objectivity.
Dr. Soler was surprised upon his review of the surgical records that the actual volume of mesh
and area of intervention were much less than expressed by appellant’s recollection of her surgical
experience. He advised that she could work eight hours a day with restrictions. Dr. Soler stated
that from a psychological and pain management standpoint, it would be prohibitive for appellant
to return to work in any position that required significant lifting, bending, twisting or operation
of any motor vehicle. He, therefore, recommended a sedentary position based on vocational
rehabilitation. Dr. Soler concluded that appellant had reached maximum medical recovery from
a physical standpoint, but advised that she was still significantly impaired from a
psychiatric/psychosocial standpoint.
In an August 21, 2009 report, Dr. Vandemark obtained a history of the accepted
employment injuries and appellant’s medical treatment and social background. She listed
findings on mental examination and diagnosed somatization and bipolar disorder not other
specified on Axis I, histrionic traits on Axis II, multiple injuries on Axis III, severe injuries on
Axis IV and a global assessment functioning score of 55 on Axis V. Appellant advised
Dr. Vandemark that pain was her biggest stressor. Dr. Vandemark stated that her sources of pain
included chronic myofascial pain syndrome, fibromyalgia, Caesarian section, ectopic pregnancy,
jaw surgery, hysterectomy, adhesions, chronic pelvic and shoulder pain, fibrositis, periostitus,
sexual dysfunction, dyspaurenia and migraine headaches.
She noted that appellant’s
employment-related injuries were not the source of the diagnosed conditions. Dr. Vandemark
opined that she was totally disabled for work. Appellant could not function in her daily activities
due to her depressed mood, sleeplessness, agitation, mood swings, anxiety, panic, suicidal
thoughts and indecisiveness. Dr. Vandemark concluded that she had not reached maximum
medical improvement.
On January 25, 2010 OWCP issued a notice of proposed termination of appellant’s
medical benefits related to her accepted orthopedic conditions, i.e., femoral hernia and muscle
spasms, based on Dr. Soler’s medical opinion.3
In a January 29, 2010 letter, appellant disagreed with Dr. Soler’s opinion. She contended
that he had already formed an opinion about her condition prior to examination. Appellant
requested that OWCP refer her to another physician.
In treatment notes dated January 14 through March 12, 2010, Paula S. Lovett, Ph.D.,
LMHC, and Dr. Ramon E. Pino, a Board-certified psychiatrist, addressed appellant’s emotional
condition and treatment. In a February 8, 2010 treatment note, Dr. Lovett advised that appellant
was confused about OWCP’s January 25, 2010 proposed termination. She wrote to support
appellant’s ongoing psychological symptoms and to continue her “no work” status from a
psychological standpoint.
3

On February 16, 2010 OWCP advised appellant that she would continue to receive wage-loss compensation
benefits and medical benefits for her accepted emotional condition.

3

In a March 31, 2010 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits regarding her accepted orthopedic conditions effective that date. It found
that Dr. Soler’s opinion represented the weight of the medical evidence.4
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
her employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.5 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.6 The right to medical benefits for an accepted condition is not
limited to the period of entitlement for disability. To terminate authorization for medical
treatment, OWCP must establish that a claimant no longer has residuals of an employmentrelated condition that requires further medical treatment.7
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits for the accepted orthopedic conditions as of March 31, 2010. It accepted
that appellant sustained a right femoral hernia and recurrent right inguinal hernia while in the
performance of duty. OWCP subsequently referred appellant to Dr. Soler for a second opinion
evaluation.
Dr. Soler’s July 8, 2009 report reviewed a history of appellant’s accepted employmentrelated injuries and medical treatment and test results. He found that the accepted orthopedic
conditions had resolved and that appellant could work eight hours a day with restrictions in a
sedentary position to be determined by vocational rehabilitation. Dr. Soler’s findings revealed
that, despite her complaints of tenderness and pain about the incision, appellant was able to move
with ease from the interview chair to the examination table. She did not exhibit any hesitation,
grimacing or limitations and Dr. Soler stated that she lifted herself with ease or need of
assistance up and onto the examination table. She laid down without any restrictions or
limitations. Dr. Soler related that surprisingly, appellant moved up and onto the table to
reposition the head and foot rests, scooted cephalad with ease and performed a partial sit up
without hesitation or evidence of pain. He found no recurrent hernia in the inguinal or femoral
area. Dr. Soler concluded that appellant’s subjective complaints were not substantiated by his
observations and physical examination findings.

4

Following the issuance of OWCP’s March 31, 2010 decision, OWCP received additional evidence. The Board
may not consider evidence for the first time on appeal which was not before OWCP at the time it issued the final
decision in the case. 20 C.F.R. § 501.2(c).
5

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

6

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

7

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

The Board finds that Dr. Soler’s report represents the weight of the medical evidence and
that OWCP properly relied on his report in terminating appellant’s compensation benefits for the
accepted orthopedic conditions on March 31, 2010. Dr. Soler’s opinion is based on a proper
factual and medical history as he reviewed a statement of accepted facts and appellant’s prior
medical treatment and test results. He also related his comprehensive examination findings in
support of his opinion that the accepted work-related conditions of right femoral hernia and
recurrent right inguinal hernia had resolved and that appellant could perform sedentary work
eight hours a day with restrictions.
The treatment notes submitted by Dr. Lovett are of no probative value as she is not a
physician as defined in FECA.8 Dr. Lovett is a clinical social worker. The other treatment notes
from Dr. Lovett and Dr. Pino addressed appellant’s emotional conditions, but failed to address
whether she had any residuals or disability causally related to the accepted orthopedic injuries.9
There is no other medical evidence contemporaneous with the termination of appellant’s
benefits which supports that she has any continuing residuals or disability from her employmentrelated orthopedic conditions. OWCP, therefore, met its burden of proof to terminate.
The Board finds that appellant’s contention on appeal, that her ongoing pain and muscle
spasms are causally related to her accepted orthopedic conditions has not been established. As
found, the weight of the medical evidence establishes that she has no continuing residuals or
disability causally related to the employment-related orthopedic injuries and, thus, OWCP
properly terminated her compensation benefits.
Appellant further contended on appeal, that her current emotional condition is causally
related to the accepted orthopedic conditions. As noted, OWCP has advised appellant that she is
still entitled to wage-loss compensation benefits and medical benefits for the accepted emotional
condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office 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 OWCP properly terminated appellant’s compensation effective
March 31, 2010 on the grounds that she no longer had any residuals or disability causally related
to her accepted employment-related right femoral hernia and recurrent right inguinal hernia.

8

5 U.S.C. § 8101(2) defines physician to include: “surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
9

Willie M. Miller, 53 ECAB 697 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2011
Washington, DC

Colleen Duffy Kiko, 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
___________________________________________
)
E.C., Appellant
)
)
and
)
)
DEPARTMENT OF JUSTICE, DRUG
)
ENFORCEMENT ADMINISTRATION,
)
Miami, FL, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-1060
Issued: November 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On March 8, 2010 appellant timely appealed the February 19, 2010 nonmerit decision of
the Office of Workers’ Compensation Programs finding that she abandoned her request for an
oral hearing. The most recent merit decision was issued on August 24, 2009, more than 180 days
prior to the filing of this appeal. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not
have jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant abandoned her request for a hearing.
FACTUAL HISTORY
On May 8, 1994 appellant, then a 36-year-old special agent/criminal investigator, was
injured when she slipped and fell on her tailbone at work. She stopped work on May 16, 1994.
The Office accepted the claim for subluxations at C3, T1, L3-4 and L5-S1. On December 20,
2007 it accepted cervical subluxation at C3, thoracic subluxation, T1, lumbar subluxation, L3-4,
and L5-S1. On February 25, 2008 the Office accepted permanent aggravation of cervical
degenerative disc disease at C4-C5 and C5-C6.
On November 7, 2008 it accepted

cervicothoracic lumbar myofascial pain syndrome. Appellant received appropriate compensation
benefits.
On June 4, 2009 the Office received a request to authorize physical therapy for the period
June 4 to July 4, 2009.
In a letter dated June 9, 2009, the Office advised appellant that additional medical
evidence was needed. It requested that she provide a report from her treating physician with an
explanation regarding the need and extent of the requested treatment.
In a June 19, 2009 report, Dr. Bruce S. Zaret, a Board-certified internist and treating
physician, noted the Office’s request for additional information regarding the need for physical
therapy. He opined that appellant was in need of a transcutaneous electrical nerve stimulation
(TENS) unit and Botox, but did not offer any opinion regarding physical therapy.
By decision dated August 24, 2009, the Office denied appellant’s request for additional
physical therapy. It found that Dr. Zaret’s report was insufficient to support authorization of any
additional physical therapy.
On August 30, 2009 appellant requested a telephonic hearing and submitted additional
evidence. In an undated letter, received on September 11, 2009, she advised the Office that she
never received the June 9, 2009 letter requesting additional information from her physician.
Appellant also noted that the Office did not address the TENS unit or Botox request from her
physician.
On November 10, 2009 the Office notified appellant in writing that a hearing was
scheduled for December 10, 2009 at 1:30 p.m. Eastern Standard Time. Appellant was given a
toll-free number to call and a pass code. The notice was mailed to her address of record.
By decision dated February 19, 2010, the Office found that appellant abandoned her
requested hearing. The decision noted that a hearing was scheduled for December 10, 2009, but
she failed to appear as instructed. The decision found that there was no indication that appellant
contacted the Office either prior or subsequent to the scheduled hearing to explain her failure to
participate. The Office concluded that she abandoned her oral hearing request.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to receive a hearing
upon writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.1 Unless otherwise directed in writing by the claims examiner, the
Office hearing representative will mail a notice of the time and place of the hearing to the

1

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

claimant and any representative at least 30 days before the scheduled date.2 The Office has the
burden of proving that it mailed notice of a scheduled hearing to a claimant.3
The authority governing the abandonment of hearings rests with the Office’s procedure
manual, which provides that a hearing can be abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not requested a
postponement; the claimant has failed to appear at a scheduled hearing; and the claimant has
failed to provide any notification for such failure within 10 days of the scheduled date of the
hearing. Under these circumstances, the Branch of Hearings and Review will issue a formal
decision finding that the claimant has abandoned her request for a hearing and return the case to
the district Office.4
ANALYSIS
By decision dated August 24, 2009, the Office denied appellant’s request for additional
physical therapy. Appellant timely requested a telephonic hearing. In a November 10, 2009
letter, the Office notified her that a hearing was scheduled for December 10, 2009 at 1:30 p.m.
Eastern Standard Time. It instructed appellant to call a toll-free number and enter a provided
pass code to connect to the hearing representative. Appellant did not telephone at the appointed
time. She did not request a postponement of the hearing or explain her failure to appear at the
hearing within 10 days of the scheduled December 10, 2009 hearing. The Board finds that
appellant abandoned her request for a hearing.
On appeal appellant contends that she did not receive notice of the scheduled hearing.
The record reflects that the November 10, 2009 hearing notice was mailed to appellant’s address
of record and was not returned as undeliverable. The Board has found that, in the absence of
evidence to the contrary, a letter properly addressed and mailed in the due course of business,
such as in the course of the Office’s daily activities, is presumed received at the mailing address
in due course. This is known as the mailbox rule.5 The Office properly mailed the hearing
notice to appellant’s address of record and it is presumed that she received the notice of hearing.
Appellant also questioned why physical therapy had not been authorized by the Office. The
Board only has jurisdiction to consider whether the Office properly found that she abandoned her
hearing request.
CONCLUSION
The Board finds that the Office properly determined that appellant abandoned her request
for an oral hearing.

2

20 C.F.R. § 10.617(b).

3

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999). See G.J., 58 ECAB 651 (2007).
5

Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2010
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1667
Issued: January 27, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated March 21 and May 16, 2008 denying her
traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an injury on January 21,
2008 in the performance of duty.
FACTUAL HISTORY
On January 25, 2008 appellant, then a 53-year-old casual mail clerk, filed a traumatic
injury claim alleging that she developed headache, dizziness, aches, chills and fever and felt faint
while in the performance of duty on January 21, 2008. She attributed her symptoms to drinking
contaminated water from the breakroom water fountain. Appellant stopped work January 21,
2008 and was taken to the emergency room at Barnes-Jewish Hospital, where she was diagnosed
with weakness. In support of her claim, she submitted a certificate to return to work from

Pulmonary Consultants, Inc., medical records from Barnes-Jewish Hospital and a January 26,
2008 narrative statement.
In a January 25, 2008 statement, Evelyn Ransome, a supervisor, indicated she put a “do
not drink” sign on the water fountain appellant alleged caused her symptoms. She also called
maintenance to see if the water fountain had been tested and was told the water had tested okay.
On February 19, 2008 the Office requested additional information concerning appellant’s
claim. It asked that she provide evidence of possible water contamination from the drinking
fountain and submit a well-rationalized report from her physician, which explained how her
condition was caused or aggravated by her employment and to describe her health on the day in
question. The Office also requested information from the employing establishment regarding its
drinking water.
In a February 22, 2008 statement, appellant stated coliform bacteria were found in the
contaminated water.
In a February 7, 2008 medical report, Dr. Simeon Prager, a Board-certified internist,
noted the history of injury and that a recent chest x-ray obtained at Barnes-Jewish Hospital was
negative. He found additional studies were needed as appellant had multiple symptoms not
easily explained by one obvious diagnosis. On February 14, 2008 Dr. Prager diagnosed asthma
exacerbation. He could not say whether or not appellant’s symptoms were related to the water
exposure at her place of work on January 21, 2008.
Appellant submitted a March 10, 2008 certificate to return to work and a March 12, 2008
duty status report from a physician with an illegible signature from Pulmonary Consultants, Inc.
The physician indicated that appellant had asthma exacerbation and bacterial infection and had
been under his care from January 26, 2008. Appellant was released to light-duty work on
March 10, 2008.
The employing establishment provided a March 7, 2008 e-mail correspondence from its
maintenance manager, Arthur L. Doscher, who advised that the employing establishment had not
had any cases of contaminated water within the last five years. Mr. Doscher noted that the water
source was common to the entire facility and serviced all the water fountains in the building. He
was not aware of anyone else getting sick from the drinking water in the entire facility or from
the water fountain in question.
By decision dated March 21, 2008, the Office denied appellant’s claim on the grounds
that she failed to establish that an incident occurred in the performance of duty, as alleged.
Moreover, appellant did not submit sufficient medical evidence rendering a diagnosis to which
the claimed work-related events could be connected.
On April 7, 2008 appellant requested reconsideration of the Office’s March 21, 2008
decision. In an April 16, 2008 statement, she contended that the water had been turned off
January 19 and 20, 2008. On January 21, 2008 appellant had been drinking the contaminated
water in her water bottle for about four hours before she got sick. She alleged that the

2

contaminated water had exacerbated her asthma condition and was poisoning her brain. 1 A
February 4, 2008 report from Saint Louis County Health indicated that the January 29, 2008 tap
water sample submitted by appellant revealed unsatisfactory levels of coliform under the
Missouri Standard for Drinking Water. Hospital records submitted indicated that on March 13,
2008 appellant was treated at the Northwest Healthcare emergency room for a headache and on
March 27, 2008 she was treated at Christian Hospital Northeast for solvent poisoning with a
secondary diagnosis of migraine.
Appellant submitted copies of diagnostic studies, including a February 13, 2008 x-ray
report, an April 7, 2008 magnetic resonance imaging (MRI) scan of the brain and April 21, 2008
laboratory testing. In a February 13, 2008 prescription note, Dr. William D. Zweki, a pulmonary
specialist, diagnosed asthma.
In a March 31, 2008 report, Dr. Paisith Piriyawat, a Board-certified neurologist, advised
that appellant was seeking her opinion on the association of drinking contaminated water from a
faucet at work on January 21, 2008 and her worsening migraine headaches. He noted that
appellant related that the water tested positive for coliform bacteria and she had multiple
symptoms after drinking such water on January 21, 2008. Dr. Piriyawat opined that the presence
of coliform bacteria in the contaminated water could give appellant diarrhea or gastroenteritis.
However, he opined that it was unlikely the bacteria would penetrate through the gastrointestinal
mucosa to reach the central nervous system and cause acute bacterial meningitis or severe
headaches in a host with a normal immune system. Dr. Piriyawat noted that appellant denied
having any fever or altered mental status within one to two weeks after drinking the water. He
opined that appellant’s worsening headaches were not attributable to contaminated water but
rather to a level of tension or anxiety from the event. Dr. Piriyawat noted there was no accurate
way to prove his opinion.
A January 17, 2008 memorandum from the maintenance department of the employing
establishment indicated that the water booster pumps were turned off Saturday evening,
January 19, 2008 through mid-day January 21, 2008.
A May 7, 2008 report of the employing establishment’s Office of Inspector General
indicated that an onsite evaluation of the employing establishment’s water supply and the
methodology used to control the water purity at the facility uncovered no abnormalities in the
facility’s water treatment or delivery systems and no complaints were noted with respect to the
water quality at the facility. Adrian Bowers, maintenance supervisor, denied that the water
appellant ingested at the questioned water fountain was contaminated or otherwise compromised
for several reasons: the employing establishment’s water system was self-contained; the water
did not have contact with any potential outside contamination sources such as gas, sewer or
utility lines; the water was screened at the fountain for contaminates with a high quality filter and
water backflow prevention devices; the pumps that required maintenance were not on the same
water line as the water fountain; the water was tested yearly using Environmental Protection
Agency and State of Missouri water testing standards; the same water was supplied to the nearby
Anheuser-Busch brewery that required very high water purity standards; the sample submitted by
1

The record indicates appellant has an April 5, 2005 injury which was accepted for contusion of the forehead.

3

appellant did not abide by established water testing protocols or sampling procedures because the
sample results were inconclusive as to the source of the sample; and the presence of coliform
bacteria did not indicate that the water was unsafe to consume, and all drinking water had trace
amounts of bacteria.
By decision dated May 16, 2008, the Office denied modification of the March 21, 2008
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty 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 an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.5 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.6
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged or whether the alleged injury was in the performance of duty7 nor can the Office
find fact of injury if the evidence fails to establish that the employee sustained an injury within
the meaning of the Act. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but
the employee’s statements must be consistent with surrounding facts and the circumstances and
her subsequent course of action. 8 Such circumstances as late notification of injury, lack of
2

5 U.S.C. §§ 8101-8193.

3

Anthony P. Silva, 55 ECAB 179 (2003).

4

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

5

Delphyne L. Glover, 51 ECAB 146 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

See Joseph H. Surgener, 42 ECAB 541, 547 (1991).

4

confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established his or her claim.9
ANALYSIS
The Office denied appellant’s traumatic injury claim on the grounds that she did not
establish that the water fountain incident occurred on January 21, 2008 as alleged. Appellant
stated that she became ill after ingesting contaminated water from an employing establishment
water fountain. She also attributed an exacerbation of her asthma and migraine headaches to the
alleged contaminated water. Appellant sought medical attention the same day and submitted
evidence of unsatisfactory coliform levels from a sample of the water she collected. However,
she did not submit any evidence from witnesses or medical records substantiating that the water
she drank on January 21, 2008 was in fact contaminated. Appellant stated that she drank from
her water bottle for several hours on January 21, 2008 before she became ill.
The evidence from employing establishment personnel with immediate knowledge of the
drinking water does not support appellant’s contention that the water at her work site was
contaminated. Upon being informed of appellant’s illness, Ms. Ransome called the maintenance
department and was advised that the drinking water had tested okay. The employing
establishment’s Office of Inspector General advised that there were no abnormalities found in
either the water treatment or delivery systems and that there were no complaints with respect to
the water quality at the facility. The employing establishment noted that the source of
appellant’s water sample could not be confirmed. Mr. Doscher noted that the employing
establishment had not had any cases of contaminated water within the prior five years and that he
was not aware of anyone else becoming ill after drinking water from the water fountains at the
facility. He explained that the employing establishment’s water system was self-contained and
the pumps required for maintenance were not on the same water line as the water fountain from
which appellant drank. Mr. Bowers stated that the presence of coliform bacteria did not establish
that the water was unsafe to consume and that appellant’s water sample did not abide by
established water testing protocols or sampling procedures. Appellant has not provided any
statement or evidence to clarify these discrepancies between her assertions of water
contamination and the evidence from the employing establishment supporting that there was no
such contamination. Her belief that her condition was caused by contaminated water at her
workplace is not sufficient to establish causal relation.10
Due to the unexplained inconsistencies between appellant’s statements and the evidence
provided by the employing establishment as to whether the drinking water on January 21, 2008
was contaminated, the Board finds that she has not established her exposure to contaminated
water occurred as alleged. Therefore, she has not established the employment incident alleged to
have caused her claimed condition and it is not necessary to consider the medical evidence.11
9

See Constance G. Patterson, 42 ECAB 206 (1989).

10

See Luis M. Villanueva, 54 ECAB 666 (2003).

11

Bonnie A. Contreras, 57 ECAB 364 (2006).

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury on January 21, 2008, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 16 and March 21, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 27, 2009
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Perry, OH, Employer
__________________________________________

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

Docket Nos. 10-1451,
10-1452, 10-1453
Issued: February 11, 2011

Case Submitted on the Record

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

JURISDICTION
On April 26, 2010 appellant filed a timely appeal of October 28, 2009 and April 13, 2010
decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her bilateral wrist
condition was causally related to factors of her employment.
FACTUAL HISTORY
On August 10, 2009 appellant, then a 60-year-old rural letter carrier, filed an
occupational disease claim alleging that she suffered from bilateral carpal tunnel due to moving
and bending her wrists while casing and delivering mail at work.1 She reported that she first
1

Appellant filed the same occupational disease claim three times. These claims were consolidated by the Branch
of Hearings and Review.

became aware of her carpal tunnel in August 2007 and realized that it resulted from her work
duties in January 2008. Appellant retired on September 16, 2008. She also submitted a Form
SF50, Notification of Personnel Action, and a letter from her attorney.
In a September 8, 2009 letter, the employing establishment controverted appellant’s
claim on the grounds of insufficient medical evidence establishing a medical diagnosis or causal
relationship between factors of her employment and the claimed condition.
In a September 23, 2009 letter, the Office advised appellant that the evidence submitted
was insufficient to establish her claim and requested additional information from her. It
specifically asked her to describe in detail the employment-related activities, which she believed
contributed to her condition, including how often and for how long she performed these duties on
each occasion and describe all activities outside of her federal employment, the development of
the claimed condition and all previous injuries to her hand, arm and wrist. The Office also
requested a comprehensive medical report from appellant’s treating physician, which should
include a description of her symptoms, results of her examination and tests, diagnosis, treatment
provided and a physician’s opinion, with medical reasons, regarding the cause of her condition.
On October 26, 2009 the Office received an electromyogram (EMG) report for a study
performed on December 28, 2007. This report noted that there was no evidence of sensory
cervical radiculopathy but the findings were consistent with bilateral carpal tunnel syndrome.2
By decision dated October 28, 2009, the Office denied appellant’s claim on the grounds
of insufficient evidence establishing that she sustained an injury in the performance of duty. It
stated that she failed to submit evidence describing specific work duties, providing specific time
periods of her work duty or quantifying the amount of time and frequency spent performing
these duties. In addition, the Office pointed out that the record did not contain any medical
evidence providing a history of injury, diagnosis, description of work-related factors or
physician’s opinion regarding whether appellant’s carpal tunnel resulted from her employment
factors.
In a letter dated November 17, 2009, appellant, through her representative, appealed the
October 28, 2009 decision before the Branch of Hearings and Review and requested a telephone
hearing. She also submitted as evidence copies of e-mail correspondence between herself and
her representative dated July 29 and October 19, 2009 describing her employment duties and
how often and for how long she performed these duties. Appellant further noted her surgeries in
April and May 2008. Her prior injuries included a 1996 sprain at work and a December 2006
right hand and arm injury resulting from a fall at work.
On February 18, 2010 a telephone hearing was held. Appellant first provided factual
background regarding her employment duties. She stated that she worked for the employing
establishment from May 1981 until she retired in September 2008. Appellant’s duties included
retying tubs of flats, casing them, which involved folding some to fit into the mail case,
retrieving the letter mail and organizing them in sequential order. She stated that she was five
feet, three inches tall and the cases she worked with were approximately six feet tall with around
2

The Office initially associated this study with File No. xxxxxx182.

2

544 call boxes. Appellant’s movements while casing mail involved reaching, bending, stooping,
picking up mail and putting them into the boxes. After casing the mail, she placed the mail into
trays and loaded the trays into her car for delivery. While delivering mail, appellant described
the movement as constant pushing and pulling to open and close the mailboxes. She further
noted that she worked an average of five or six hours a day, which meant she performed these
duties roughly 3,950 times a day.
Regarding a history of her medical condition, appellant stated that her hands and wrists
gradually began to ache until it worsened to the point where she was waking up about 12 times a
night. She reported that the first physician she visited was Dr. Michael Kellis, an orthopedist,
who ordered an EMG. Appellant stated that the EMG revealed she had carpal tunnel. She
further reported that she had surgery on her wrist by Dr. Harmat and on her shoulder by
Dr. Sarkisen in April and May 2008. Appellant also stated that the surgery helped to alleviate
much of the pain. In addition, she noted that she wore braces to keep her arms straight and took
medication for her bipolar condition. Appellant’s last treatment for her wrist condition was right
before she retired. The hearing representative requested copies of all the treatment notes and a
medical report from her physician, but none of these reports appear in the record.
In addition, appellant stated that she first became aware of her wrist condition in
August 2007. She continued to work full time and noted that she did not request time off
because she was intimidated by her boss. Appellant stated that one reason she waited for over a
year to file a claim was because she was afraid of her boss’ response.
In a decision dated April 13, 2010, a hearing representative affirmed the October 28,
2009 Office decision denying appellant’s claim. The hearing representative accepted that she
provided sufficient evidence that her work duties as a rural letter carrier required constant
bending, stopping, grasping, reaching and repetitive movement of her wrists and hands. The
hearing representative, however, determined that appellant did not provide sufficient medical
evidence establishing a diagnosed medical condition that was causally related to the specified
work factors. The hearing representative pointed out that she did not submit a physician’s report
with his opinion, based on an accurate factual and medical background and stated medical
reasons, regarding whether her employment factors caused or aggravated appellant’s diagnosed
condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.4 In a claim for occupational disease, that burden of proof
includes: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is

3

5 U.S.C. §§ 8101-8193.

4

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

3

claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.7 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.8 The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of a causal relation based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.9
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty. The Office accepted her alleged factors of
employment including grasping, reaching and repetitive movement of her wrists and hands
associated with her job as a letter carrier. The Board affirms the denial of the claim on the
grounds that appellant failed to submit sufficient medical evidence establishing that her bilateral
wrist condition was causally related to these particular employment activities.
The Office advised appellant to submit a comprehensive medical report containing a
diagnosis and a physician’s opinion, with stated medical reasons, regarding whether her
diagnosed condition was causally related to the particular employment activities. The only
medical evidence of record is the December 28, 2007 EMG report which was reported as
consistent with findings of bilateral carpal tunnel syndrome. While this report contained a
diagnosis of appellant’s condition, it did not provide any medical opinion regarding the cause of
the diagnosed condition.10

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

I.R., 61 ECAB __ (Docket No. 09-1229, issued February 24, 2010); W.D., 61 ECAB __ (Docket No. 09-658,
issued October 22, 2009); D.I., 59 ECAB 158 (November 6, 2007).
7

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

8

D.S., 61 ECAB __ (Docket No. 09-860, issued November 2, 2009); B.B., 59 ECAB 234 (2007).

9

Patricia Bolleter, 40 ECAB 373 (1988).

10

Although appellant reported visiting a number of physicians and surgeries, these reports do not appear in the
record.

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Appellant failed to submit the necessary medical evidence which explained, with medical
rationale, how her accepted factors caused her diagnosed condition.11
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
bilateral carpal tunnel syndrome was sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2010 and October 28, 2009 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB
365 (1994).

5


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

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Docket No. 20-1221
Issued: July 6, 2021

Case Submitted on the Record

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

On May 12, 2020 appellant filed a timely appeal from a February 13, 2020 merit decision
and a March 20, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The Clerk of the Appellate Boards docketed the appeal as Docket No. 20-1221.1
On September 25, 2018 appellant filed a traumatic injury claim (Form CA-1) alleging that
on September 21, 2018 she injured her left wrist and arm when an employee intentionally kicked
pallets into her. OWCP assigned the claim File No. xxxxxxx181. On July 12, 2019 it accepted
the claim for an unspecified sprain of the left wrist and a strain of unspecified muscles, fascia, and
tendons at the left forearm level.
On November 29, 2019 appellant, then a 51-year-old mail handler, filed an unsigned
occupational disease claim (Form CA-2) alleging that she sustained left wrist de Quervain’s
tenosynovitis due to factors of her federal employment. She stated that on September 21, 2018
she injured her left hand and wrist when she was assaulted by another employee. Appellant further
1

The Board notes that, following the March 20, 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 evidence for
the first time on appeal. Id.

stated that she initially filled a notice of recurrence (Form CA-2a), which was the wrong claim
form. On the reverse side of the claim form the employing establishment indicated that medical
reports did not show that appellant was disabled from work. OWCP assigned the claim File No.
xxxxxx496.
In a letter dated September 6, 2019, appellant indicated that, during the past 26 years, her
employment duties have included loading and unloading trucks, emptying sacks, operating power
equipment, and moving rolling stock. She stated that after the September 21, 2018 employment
incident, she first returned to limited duty work with the restrictions of no pulling, lifting, or
pushing, and then on December 26, 2018 she returned to her regularly assigned duties. Appellant
related that her left wrist pain returned in June 2019 and she returned to limited duty and was
provided with a handheld scanner. She contended that the repetitive and continuous nature of her
job duties caused the left wrist condition she sustained on September 21, 2018 to worsen.
By decision dated February 13, 2020, OWCP denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish causal relationship between
appellant’s diagnosed left wrist condition and her accepted factors of federal employment.
On March 2, 2020 appellant requested reconsideration. By decision dated March 20, 2020,
OWCP denied her request for reconsideration of the merits of her claim.
The Board finds that this case is not in posture for decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication depends on cross-referencing between files and where two or more injuries occur to
the same part of the body.2 As the instant claim under OWCP File No. xxxxxx496 and the claim
under OWCP File No. xxxxxx181 both involve injuries to appellant’s left wrist, these claims must
be administratively combined for a full and fair adjudication.3 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing appellant’s current occupational
disease claim.
Accordingly, the Board will remand the case to OWCP to administratively combine OWCP
File Nos. xxxxxx496 and xxxxxx181. Following this and such other such further development as
deemed necessary, OWCP shall issue a de novo decision on appellant’s occupational disease claim.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3

S.D., Docket No. 19-0590 (issued August 28, 2020).

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IT IS HEREBY ORDERED THAT the February 13 and March 20, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: July 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Wenatchee, WA, Employer
__________________________________________

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

Docket No. 08-2488
Issued: September 3, 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 September 17, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated June 12, 2008. Under 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability due to his lower back
condition as of December 22, 2004.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 65-year-old laborer, injured his
head, lower back, right shoulder, right arm, left leg and right leg when he was knocked into a
ditch on May 5, 2004. He filed a claim for benefits on May 10, 2004, which the Office accepted
for right shoulder abrasion, right forearm contusion, left thigh contusion, right calf contusion,
right knee abrasion, head contusion and lumbar strain. Appellant returned to work without
restrictions on June 21, 2004.

On January 12, 2005 appellant filed a Form CA-7 claim for compensation for the period
December 22, 2004 to January 22, 2005. Several reports dated December 22, 2004 from
Dr. Douglas Burns, a Board-certified physiatrist, indicated that appellant was disabled from work
due to low back and right leg pain.
By decision dated June 28, 2005, the Office denied appellant’s claim for recurrence of
disability, finding that he submitted insufficient medical evidence to establish that his disability
was related to his accepted employment injury.
In order to determine appellant’s current condition, the Office referred him to Dr. Joan
Sullivan, a Board-certified orthopedic surgeon, for a second opinion examination. Appellant
submitted reports dated March 24 and May 19, 2006. In her March 24, 2006 report, Dr. Sullivan
advised that his work-related condition had not resolved, that he was totally disabled from
performing full duty and that he was quite symptomatic and impaired. She stated that appellant’s
multilevel spondylosis had been aggravated by the accepted injury and that his possible L5
radiculopathy should be accepted as employment related. Dr. Sullivan asserted on May 19, 2006
that his lumbar spine injury was more than just a strain and was still symptomatic. She stated her
opinion that appellant’s preexisting spinal condition had been aggravated by the employment
injury based on the fact that he was asymptomatic prior to the May 2004 work injury.
By decision dated September 7, 2006, the Office denied appellant’s application for
review on the grounds that it neither raised substantive legal questions nor included new and
relevant evidence sufficient to require the Office to review its prior decision.
In an August 21, 2007 decision,1 the Board set aside the September 7, 2006 decision.
The Board found that the Office erred in failing to review and consider Dr. Sullivan’s reports,
which constituted relevant evidence pertaining to the issue of whether there was a causal
relationship between appellant’s accepted May 2004 injuries and his claimed condition/disability
as of December 22, 2004. The Board therefore remanded the case to the Office for a review of
the merits of his claim and to specifically consider the reports of Dr. Sullivan which addressed
the issues of disability and causation. The complete facts of this case are set forth in the Board’s
August 21, 2007 decision and are herein incorporated by reference.
The Office referred appellant, the case record and the statement of accepted facts to
Dr. Chester S. McLaughlin, a Board-certified orthopedic surgeon, for a second opinion
examination. In a report dated December 7, 2007, Dr. McLaughlin stated that more-probablythan-not appellant’s current back condition was markedly aggravated by the injury of
May 5, 2004. He advised that appellant’s condition presently rendered him unable to perform
the full scope of his usual work duties, and that his condition has worsened due to the May 2004
injury. Dr. McLaughlin stated that, while it is possible that appellant’s age-related lumbar
spondylosis might be a factor in his level of impairment, his disability was primarily due to his
May 2004 employment injury. He based this opinion on the reduction in motion of the lumbar
spine, perceived weakness of dorsiflexion of the left ankle and right great toe, and the reduction
in intensity of the Achilles tendon reflexes may be a contributing factor.
1

Docket No. 07-487 (issued August 21, 2007).

2

In a supplemental report dated April 24, 2008, Dr. McLaughlin stated:
“It is my impression that [appellant] had preexistent lumbar spondylosis. To the
best of my knowledge, this was asymptomatic prior to the industrial injury under
study. Based on my experience, the industrial injury lighted up or aggravated the
preexistent lumbar spondylosis.
“[Appellant] was pain free with regards to his low back until the injury of
May 5, 2004. This is when he had the forceful impact to the left side when the
bucket of a backhoe hit his hip region.”
The Office referred appellant to Dr. George R. Harper, Board-certified in orthopedic
surgery, for an additional second opinion examination. In a May 21, 2008 report, Dr. Harper
stated that there was no medical evidence in the record which noted a change in appellant’s
condition beginning December 22, 2004 that rendered him unable to perform the full scope of his
duties. He stated:
“[Appellant] currently has some disabilities that stem from residuals of his injury.
These include subjective symptoms. However, there are no objective findings to
suggest that the patient had objective worsening of his previous existing
degenerative disc disease that prevents him from returning to his work.
“[Appellant] does have other significant disabilities. He has intermittent
claudication in his lower extremities.
[Appellant] has some peripheral
neuropathies, etiology unknown. At age 70, with preexisting widespread
degenerative arthritis in the lumbar spine, it seems likely the claimant could not
presently return to the type of work that he was doing previously.”
Dr. Harper advised that appellant was still suffering from some residuals of his work
injury. He stated, however, that he did not have any objective findings to substantiate his
subjective discomfort. Dr. Harper opined that appellant had had preexisting lumbar degenerative
disc disease and sustained some permanent, subjective worsening related to the May 2004 work
injury. He did not expect appellant’s symptoms to improve and concluded that he did not need
any additional physical treatment or evaluation.
By decision dated June 12, 2008, the Office denied appellant compensation for a
recurrence of his accepted lower back condition, finding that Dr. Harper’s referral opinion
represented the weight of the medical evidence.
LEGAL PRECEDENT
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury, and who supports that conclusion with sound medical

3

reasoning.2 A recurrence of disability is defined as the inability to work caused by a spontaneous
change in a medical condition which results from a previous injury or illness without an
intervening injury or new exposure in the work environment that caused the illness.3
ANALYSIS
The Board finds that the case is not in posture for decision.
In its August 21, 2007 decision, the Board found that the Office erred in failing to review
and consider Dr. Sullivan’s reports and remanded the case to the Office for a review of the merits
of appellant’s claim and to specifically consider the reports of Dr. Sullivan which addressed the
issues of whether there was a causal relationship between appellant’s accepted May 2004 injuries
and her claimed condition/disability as of December 22, 2004. The Office, however, did not
review Dr. Sullivan’s reports, as the Board had instructed. Apparently, as an alternative, it
referred appellant to Drs. McLaughlin and Harper for second opinion examinations, and found
that the weight of the medical evidence was represented by Dr. Harper’s second opinion that
there was no objective worsening of his previous existing degenerative disc disease which
prevented him from returning to work or that rendered him unable to perform the full scope of
his work duties. The Board notes that it is impossible to assess the “weight of the evidence”
until all the evidence has been acknowledged and evaluated. The weight of unconsidered
evidence is by definition unknown. Both referral physicians, however, indicated that appellant
had significant findings and additional conditions from the accepted low back injury.
Dr. McLaughlin opined that appellant’s disability was primarily due to his May 2004
employment injury, which had markedly worsened and aggravated his condition and had
presently rendered him unable to perform his usual work duties. He also noted that appellant had
preexisting lumbar spondylosis which was asymptomatic prior to the May 2004 employment
injury, which led him to conclude that his current condition was aggravated by the work injury.
Dr. Harper advised that appellant currently had some disability stemming from residuals of his
2004 work injury in addition to subjective complaints of low back pain.
Based on medical evidence indicating that appellant had significant findings and
additional conditions from the accepted lower back condition and the continuing failure to
review Dr. Sullivan’s reports as previously instructed the Board will set aside the Office’s
June 12, 2008 decision and again remand the case to the Office to specifically consider the
reports of Dr. Sullivan. If necessary, the Office should then refer the case record and a statement
of accepted facts to an appropriate medical specialist to evaluate whether appellant sustained a
recurrence of his lower back condition as of December 22, 2004. After such development as it
deems necessary, the Office shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
2

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.121(a).

3

See 20 C.F.R. § 10.5(x); Donald T. Pippin, 54 ECAB 631 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the June 12, 2008 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further action
consistent with this decision.
Issued: September 3, 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