United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Parris Island, SC,
Employer
__________________________________________

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

Docket No. 18-1199
Issued: April 5, 2019

Case Submitted on the Record

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

JURISDICTION
On May 24, 2018 appellant filed a timely appeal from a November 30, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions; and (2) whether
OWCP met its burden of proof to terminate appellant’s wage-loss compensation and medical
1
Appellant filed a timely request for oral argument before the Board. By order dated March 6, 2019, the Board,
after exercising its discretion, denied her request finding that her arguments on appeal could be adequately addressed
in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 18-1199
(issued March 6, 2019).
2

5 U.S.C. § 8101 et seq.

benefits, effective April 30, 2017, as she no longer had residuals or disability due to her accepted
employment injuries.
FACTUAL HISTORY
On March 2, 2000 appellant, then a 47-year-old sales store checker, filed an occupational
disease claim (Form CA-2) alleging that she experienced left arm pain from her shoulder to her
fingers causally related to factors of her federal employment. She did not stop work, but began
performing modified employment. OWCP accepted the claim for left lateral epicondylitis and
bilateral carpal tunnel syndrome. It assigned File No. xxxxxx898. On March 21, 2001 appellant
underwent a left carpal tunnel release.
OWCP subsequently accepted appellant’s April 2, 2002 occupational disease claim for
cervical spondylosis at C5-6 beginning April 1998. It assigned File No. xxxxxx944. OWCP
administratively combined the two claims, with File No. xxxxxx898 designated as the master file.
Appellant retired on disability, effective February 18, 2006. She elected to receive
compensation benefits under FECA, effective October 22, 2007. OWCP paid appellant wage-loss
compensation for total disability on the periodic rolls beginning March 14, 2010.
In a report dated November 19, 2015, Dr. Leland C. Stoddard, Jr., a Board-certified
orthopedic surgeon, noted that recent electrodiagnostic testing of appellant’s left upper extremity
had yielded normal findings. He diagnosed left elbow transient synovitis.
OWCP on December 13, 2016 referred appellant to Dr. Henry Clark Deriso, a Boardcertified orthopedic surgeon, for a second opinion examination. It requested that he address
whether she had continuing residuals from either her April 1998 or January 2000 employment
injuries. OWCP provided Dr. Deriso with a statement of accepted facts (SOAF) that indicated that
it had accepted as employment related left lateral epicondylitis, bilateral carpal tunnel syndrome,
and cervical spondylosis at C5-6.
In a report dated December 28, 2016, Dr. Deriso discussed appellant’s history of an upper
extremity condition and cervical sprain due to factors of her federal employment. On examination,
he found mild tenderness at the medial and lateral epicondyle with full range of motion and no
atrophy. Dr. Deriso found a positive Tinel’s sign on the left and an equivocal left Phalen’s test
with no loss of thenar strength or muscle weakness. He further found a normal neurological
examination of the upper extremities with no loss of muscle strength of the cervical spine or
“evidence of a cervical disc clinically.” Dr. Deriso noted that he did not believe that repetitive
stress was a cause of carpal tunnel syndrome and questioned OWCP’s acceptance of the condition.
He diagnosed post left carpal tunnel syndrome, post left radial nerve release, a history of lateral
and medial epicondylitis, a history of a cervical degenerative disc, and mild right carpal tunnel
syndrome by prior electromyogram (EMG). Dr. Deriso found that appellant had no current left
upper extremity diagnosis, noting that recent EMG studies had yielded normal findings. He related
that, “[Appellant] also has a history of degenerative discs of the cervical spine, but if she had a
sprain of this [this] usually resolves within a matter of weeks therefore I do not think she has any
diagnosis in regards to her cervical spine at the present time.” Dr. Deriso noted that the findings

2

on MRI scan study of the cervical disc were normal and that appellant had no abnormal findings
of the right upper extremity. He opined that she could return to work in her usual employment.
On February 15, 2017 OWCP notified appellant that it proposed to terminate her wageloss compensation and medical benefits, as the evidence of record established that she no longer
had any employment-related residuals or due to her accepted bilateral carpal tunnel syndrome, left
epicondylitis, or cervical spondylosis at C5-6.
In a response received by OWCP on February 24, 2017, appellant asserted that Dr. Deriso
referred to an incorrect physician as her attending physician. She also submitted a November 18,
2016 decision from the Social Security Administration, finding that she was totally disabled.
By decision dated April 13, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date. It found that the opinion of Dr. Deriso represented the
weight of the evidence and established that she had no further residuals or disability due to her
accepted employment injuries.
On April 24, 2017 appellant requested an oral hearing before an OWCP hearing
representative.
Thereafter, OWCP received an August 15, 2016 report from Dr. Stoddard. Dr. Stoddard
discussed appellant’s complaints of left arm pain and numbness and increasing neck pain. He
opined that she had “degenerative disc changes and possibly some spinal stenosis and left[-]sided
radiculitis that could certainly explain [appellant’s] shoulder and arm symptoms.”
On October 21, 2016 appellant received treatment from Dr. Luke Baxley, who specializes
in emergency medicine, for injuries sustained on that date in a motor vehicle accident.3 Dr. Baxley
diagnosed an exacerbation of chronic pain with no apparent injury after a motor vehicle accident.
A December 23, 2016 cervical MRI scan study showed degenerative disc disease with
bilateral foramina encroachment at C4-5, C5-6, and C6-7.
On October 20, 2017 Dr. Stoddard diagnosed cervical disc disorder with radiculopathy,
bilateral carpal tunnel syndrome, and left radial tunnel syndrome. He advised that he had treated
appellant for years for her carpal and radial tunnel syndrome and found that it limited her ability
to perform heavy or repetitive labor. Dr. Stoddard also related that, “[Appellant] also has cervical
disc pathology causing radiculitis in the upper extremities. I believe [that] this disables her from
most heavy and medium occupations confining her to light duty only involving limited use of the
upper extremities.”4
In a September 28, 2017 statement, appellant noted that Dr. Deriso appeared unaware that
she had a cervical condition causing radiculopathy.

3

In a report dated April 24, 2017, Dr. Stoddard diagnosed degenerative cervical spinal stenosis and the sequela of
a motor vehicle accident.
4

A nurse practitioner evaluated appellant for neck, thoracic, and low back pain following a motor vehicle accident.

3

By decision dated November 30, 2017, OWCP’s hearing representative affirmed the
April 13, 2017 decision. She found that the opinion of Dr. Deriso represented the weight of the
evidence and established that appellant had no further disability or residuals of her accepted
employment injury. The hearing representative further determined that appellant had not
established that the acceptance of her claim should be expanded to include additional conditions.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.6
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.7
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.8 To establish causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.10
The weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions.

5

Supra note 2.

6

See C.W., Docket No. 17-1636 (issued April 25, 2018).

7

R.H., 59 ECAB 382 (2008).

8

See T.F., Docket No. 17-0645 (issued August 15, 2018).

9

See S.A., Docket No. 18-0399 (issued October 16, 2018).

10

See P.M., Docket No. 18-0287 (issued October 11, 2018).

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OWCP accepted that appellant sustained left lateral epicondylitis and bilateral carpal tunnel
syndrome under OWCP File No. xxxxxx898, and cervical spondylosis at C5-6 under OWCP File
No. xxxxxx898.
In an August 15, 2016 report, Dr. Stoddard noted that appellant had numbness and pain in
her left arm and worsening neck pain. He diagnosed possible spinal stenosis and left radiculopathy
with degenerative changes. On October 20, 2017 Dr. Stoddard advised that appellant had work
limitations from carpal and radial tunnel syndrome and cervical disc disorder with radiculopathy.
He opined that she was totally disabled. Dr. Stoddard did not address whether the diagnosed
conditions were causally related to the accepted employment incident. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.11 Dr. Stoddard’s reports are thus
insufficient to support that appellant’s accepted conditions should be expanded.12 The Board thus
finds that she has not met her burden of proof.
On appeal appellant asserts that the acceptance of her claim should be expanded to include
additional conditions. As set forth above, she has not submitted reasoned evidence from a
physician, who, based on an accurate factual history, found that she had additional conditions
causally related to her employment injuries, and thus has not met her burden of proof.13
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 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.14 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.15 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.16
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.17 To terminate authorization for medical treatment, OWCP must
11

See L.B., Docket No. 18-0533 (issued August 27, 2018).

12

See L.G., Docket No. 18-0321 (issued October 25, 2018).

13

See H.R., Docket No. 18-0640 (issued December 6, 2018).

14

M.M., Docket No. 17-1264 (issued December 3, 2018).

15

E.B., Docket No. 18-1060 (issued November 1, 2018).

16

G.H., Docket No. 18-0414 (issued November 14, 2018).

17

L.W., Docket No. 18-1372 (issued February 27, 2019).

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establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.18
OWCP’s procedures provide as follows:
“The [claims examiner] is responsible for ensuring that the SOAF is correct,
complete, unequivocal, and specific. When the [district medical adviser], second
opinion specialist, or referee physician renders a medical opinion based on an
SOAF which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”19
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective April 30, 2017.
OWCP referred appellant to Dr. Deriso for a second opinion examination to determine
whether she had continued residuals or disability due to either of her accepted employment
injuries.
Initially, the Board notes that, in securing the opinion of a medical specialist, OWCP’s
procedures provide that a SOAF and development questions are to be prepared by the claims
examiner for use of the physician.20 The claims examiner is required to set forth the relevant facts
of the case, including the employee’s date of injury, age, job held when injured, the mechanism of
injury, and any conditions claimed or accepted by OWCP.21 OWCP provided Dr. Deriso with a
SOAF that listed the accepted conditions as left lateral epicondylitis, bilateral carpal tunnel
syndrome, and cervical spondylosis at C5-6.
In a report dated December 28, 2016, Dr. Deriso indicated that appellant had sustained a
cervical sprain and an upper extremity condition causally related to factors of her federal
employment. He diagnosed post left carpal tunnel syndrome, post left radial nerve release, a
history of lateral and medial epicondylitis, a history of a cervical degenerative disc, and mild right
carpal tunnel syndrome. Dr. Deriso advised that appellant had no current evidence of a right or
left upper extremity condition or cervical condition. He discussed her history of degenerative
changes in the cervical spine, but noted that if she had only experienced a sprain that would have
resolved within weeks, and thus concluded that she had no cervical spine diagnosis. Dr. Deriso
indicated that repetitive stress did not usually cause carpal or radial tunnel syndrome. As noted,
however, OWCP had previously accepted as employment related the conditions of left lateral
18

R.P., Docket No. 18-0900 (issued February 5, 2019).

19

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
20

Id. at Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.3 (September 2009).

21

Id.

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epicondylitis, bilateral carpal tunnel syndrome, and cervical spondylosis at C5-6. Dr. Deriso found
that appellant had sustained only a cervical sprain and questioned OWCP’s acceptance of carpal
tunnel syndrome. OWCP provided him with a SOAF to ensure that his report was based on a
proper factual background.22 As Dr. Deriso’s opinion is outside the framework of the SOAF, it is
based on an inaccurate history and, thus, of diminished probative value.23 Consequently, OWCP
has not met its burden of proof to terminate appellant’s wage-loss compensation and medical
benefits effective April 30, 2017.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions. The Board further
finds that OWCP has not met its burden of proof to terminate her wage-loss compensation and
medical benefits, effective April 30, 2017.
ORDER
IT IS HEREBY ORDERED THAT the November 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: April 5, 2019
Washington, DC

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

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

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

22

Supra note 18.

23

Supra note 17; E.W., Docket No. 17-0707 (issued September 18, 2017).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1527
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a March 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence to OWCP following the March 24, 2020 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish expansion of the
acceptance of his claim to include bilateral carpal tunnel syndrome, bilateral knee arthritis, and
internal derangement of the right knee.
FACTUAL HISTORY
On November 9, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2010 he sustained low back and right knee
injuries when loading a postal container onto a truck while in the performance of duty. He
explained that the truck pulled away without warning, causing the container to roll backward.
Appellant stopped work on November 3, 2010. On November 4, 2010 he received treatment in a
hospital emergency department.
In a November 13, 2010 report, Dr. F. Kennedy Gordon, Board-certified in internal and
sports medicine, provided a history of injury and treatment. He noted that appellant under went
arthroscopic right meniscal repair in January 2010. Dr. Gordon diagnosed right-sided cervical
strain, right superior trapezius strain, paralumbar sprain/strain, lower right abdominal strain, right
groin strain, right medial collateral ligament sprain, and history of right meniscal tear. 4
On November 23, 2010 OWCP accepted the claim for lumbar, thoracic, and cervical spine
sprains, sprain of the right lateral collateral ligament, and a groin sprain. 5 It paid appellant wageloss compensation on the supplemental rolls commencing December 26, 2010 and on the periodic
rolls commencing September 25, 2011.6
On July 1, 2011 OWCP referred appellant for a second opinion evaluation and report from
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon. In a July 22, 2011 report, Dr. Lakin
opined that the accepted right knee injury remained active. He recommended right knee
arthroscopy.
On July 7, 2013 appellant returned to modified duty as a mail handler for two hours a day.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls
commencing July 7, 2013.
In an August 1, 2013 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
reviewed a history of injury and treatment. He noted a January 2010 right knee arthroscopy prior
to the accepted injury and a 2003 nonoccupational left knee arthroscopy. On examination,
Dr. Filippone noted: bilaterally-positive Tinel’s and Phalen’s signs over the median nerve at the
wrists; diminished pinprick sensation in the right thumb, index, and middle fingers; decreased
4

Dr. Gordon provided periodic reports dated from December 6, 2010 through May 31, 2013 noting continued right
medial collateral ligament pain and a right meniscal tear requiring surgical repair. A December 30, 2010 magnetic
resonance imaging (MRI) scan of the right knee demonstrated prior meniscal surgery, tear or retear of the posterior
horn, joint effusion, chondromalacia of the patella, diffuse thickening of the patellar tendon, spurring of the p atellar
poles, and a posterior popliteal cyst.
5

Appellant underwent right inguinal hernia repair in February 2016.

6

From June 23, 2011 through February 14, 2013, appellant underwent a series of OWCP-authorized cervical and
lumbar injections, and stereotactic radiofrequency neurotomy of the right L3, L4, L5, S1, S2, and S3 nerve roots.

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pinprick sensation over the distal volar aspect of all five left fingers and hypothenar eminence;
limited range of motion throughout the spine; right knee swelling; an equivocally-positive drawer
sign in the right knee; and crepitation over the right medial meniscus. He diagnosed cervical and
thoracic radiculitis, right inguinal hernia. and internal derangement of the right knee. Dr. Filippone
opined that all of these diagnoses “need to be accepted by [OWCP].”7
In a September 12, 2013 report, Dr. David Deramo, a Board-certified orthopedic surgeon,
provided a history of January 2010 right knee surgery and the accepted November 3, 2010
employment injury. He diagnosed right knee pain, acute right medial meniscus tear, internal
derangement of the right knee, and patellar chondromalacia.
In a September 13, 2013 report, Dr. Filippone opined that electromyography/nerve
conduction velocity (EMG/NCV) studies of the bilateral upper extremities demonstrated bilateral
carpal tunnel syndrome. 8
Appellant stopped work on March 7, 2014 and did not return.
On June 17, 2014 Dr. Marc S. Arginteanu, a Board-certified neurosurgeon, performed
OWCP-authorized partial L5 laminectomy, partial S1 laminectomy, and L5-S1 discectomy.
By decision dated June 25, 2014, OWCP accepted a recurrence of disability and a need for
medical treatment commencing March 7, 2014. It expanded the acceptance of the claim to include
lumbosacral spondylosis without myelopathy.
By decision dated July 9, 2014, OWCP accepted another recurrence of disability effective
June 17, 2014. It authorized payment of wage-loss compensation for partial disability from
May 31 through June 16, 2014. OWCP placed appellant on the periodic compensation rolls
retroactive to June 29, 2014.
Dr. Filippone provided periodic reports dated from September 5, 2014 through June 30,
2015 diagnosing cervical, 9 thoracic, and lumbar radiculopathy; bilateral carpal tunnel syndrome
with positive Tinel’s and Phalen’s signs; and internal derangement of the right knee. He opined
that these conditions were causally related to the accepted November 3, 2010 employment injury.10
7

An August 19, 2013 MRI scan of the right knee demonstrated mild tricompartmental osteoarthritis, chronic
thickening of the medial collateral ligament and patellar tendon, persistent tear of the posterior horn of the medial
meniscus, persistent radial tear of the lateral meniscus, chondromalacia, and a popliteal cyst and a focal area of
inflammation in the superolateral aspect of Hoffa’s fat pad. August 21, 2013 MRI scans of the cervical and thoracic
spine demonstrated disc bulges at C5-6, C6-7, and C7-T1, thoracic kyphosis and spondylosis deformans, and multiple
Shmorl’s nodes in the lower thoracic region.
8

In November and December 2013 appellant underwent a series of OWCP-authorized lumbar and lumbosacral
injections.
9

A January 13, 2015 MRI scan of the cervical spine demonstrated a C4-5 broad-based posterior disc bulge, C5-6
broad-based midline disc herniation with mild spinal stenosis, board-based posterior disc bulge at C6-7, and C7-T1
asymmetric disc bulge to the right. A May 20, 2015 MRI scan of the right knee demonstrated postoperative changes
from prior partial medial meniscectomy, increased cartilage loss, and patellar tracking disorder.
10

Appellant underwent a series of OWCP-authorized epidural steroid injections from March 26 through
August 13, 2015.

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In a June 8, 2015 report, Dr. Yaser El-Gazzar, an orthopedic surgeon, noted the onset of
right knee pain after the November 3, 2010 employment injury. On examination, he observed
crepitance of both knees. Dr. El-Gazzar diagnosed patellofemoral syndrome, a right meniscal tear,
acquired genu varum deformity, and synovitis status postemployment injury. He administered a
series of cortisone injections and prescribed a knee brace.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 2, 2015
report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon, reviewed a statement of
accepted facts (SOAF) and the medical record and noted findings on examination. He opined that
the accepted cervical spine injury caused “double crush” bilateral carpal tunnel syndrome due to
compression of cervical nerve roots superimposed on mild compression of the median nerve at the
wrists.
Dr. Filippone submitted reports dated July 31, 2015 through September 26, 2017 finding
appellant totally disabled from work due to cervical, 11 thoracic, and lumbar radiculopathy, bilateral
carpal tunnel syndrome, and internal derangement of the right knee. He op ined that these
conditions were caused by the accepted November 3, 2010 employment injury.
Thereafter, OWCP referred appellant for a second opinion report to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 6, 2017 report, Dr. Askin reviewed a SOAF
and the medical records. On examination, he observed bilaterally-positive Tinel’s sign at the wrist,
and limited active range of motion throughout the spine. Dr. Askin opined that the accepted
employment conditions had resolved without residuals. He attributed appellant’s spinal and
musculoskeletal complaints to obesity “and not consequential to the fact that he fell on
November 3, 2010.” Dr. Askin concluded that the acceptance of appellant’s claim “should not be
expanded to include any other conditions for the November 3, 2010, incident.”
In reports dated November 20, 2017, Dr. Filippone noted bilateral hand numbness
secondary to the use of a cane. 12 In reports dated December 19, 2017, he noted that both knees
were tender and effused. Dr. Filippone opined that appellant urgently required right knee
arthroscopy.
In a January 26, 2018 letter, appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include bilateral carpal tunnel syndrome, based on Dr. Henderson’s
July 2, 2015 opinion.
In a February 14, 2018 report, Dr. Paul M. Brisson, a Board-certified orthopedic surgeon,
related appellant’s complaints of increased numbness and weakness in both hands. He opined that
appellant had sustained cervical and lumbar spine injuries in the November 3, 2010 employment
incident. In a March 14, 2018 report, Dr. Brisson diagnosed bilateral radiculopathy at C5, C6, C7,
and L5-S1.

11

In an October 20, 2015 report, Dr. Filippone noted that a May 6, 2015 EMG/NCV study of the bilateral upper
extremities demonstrated right C5, C6, and C7 cervical radiculopathy and left C5-6 cervical radiculopathy.
12

A November 29, 2017 MRI scan of the right knee demonstrated status post partial lateral meniscectomy,
“[r]ecurrent tear within the posterior horn of the lateral meniscus, “[n]ew vertical tear within the body and posterior
horn” of the medial meniscus, and a small ganglion cyst.

4

OWCP found a conflict of medical opinion between Dr. Filippone, for appellant, and
Dr. Askin, for the government, regarding whether acceptance of the claim should be expanded to
include additional spinal conditions, bilateral carpal tunnel syndrome, and derangement of the right
knee, and whether appellant had continuing work-related disability or required further medical
treatment. It referred appellant, an updated statement of accepted facts (SOAF), and the medical
record to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict of opinion
as the impartial medical examiner (IME).
In a February 15, 2018 report, Dr. Carlson diagnosed resolved cervical, thoracic, and
lumbar sprains, status post lumbar discectomy, a resolved L5-S1 disc herniation, resolved right
lateral collateral ligament sprain, nonoccupational bilateral carpal tunnel syndrome, and
nonoccupational osteoarthritis of both knees.
In a June 4, 2018 report, Dr. Imran Ashraf, a Board-certified orthopedic surgeon,
diagnosed a work-related right knee injury and post-traumatic osteoarthritis. He recommended
right knee surgery.
By notice dated July 18, 2018, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as the accepted employment conditions had ceased. It afforded
him 30 days to submit additional evidence or argument.
Appellant, through counsel, contended in an August 13, 2018 statement that Dr. Carlson
provided insufficient medical rationale. He submitted reports from Dr. Filippone dated from
July 18 through August 16, 2018 reiterating previous diagnoses.
By decision dated August 29, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement of the right
knee, bilateral knee arthritis, right inguinal hernia, herniated/bulging discs of the cervical and
lumbar spine, and cervical and lumbar degenerative disc disease, based on Dr. Carlson’s opinion
as the special weight of the medical evidence.
By decision dated September 7, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, based on Dr. Carlson’s opinion as the
special weight of the medical evidence.
Appellant, through counsel timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review with regard to both the expansion and termination decisions.
During the hearing, held on February 21, 2019, counsel contended that OWCP should have
accepted bilateral carpal tunnel syndrome/double crush syndrome based on Dr. Henderson’s
July 2, 2015 opinion instead of posing the same question to Dr. Askin. He submitted additional
reports from Dr. Filippone dated September 13, 2018 through April 25, 2019, which reiterated that
the November 3, 2010 employment injuries caused bilateral carpal tunnel syndrome and internal
derangement of the right knee.
By decision dated May 8, 2019, OWCP’s hearing representative reversed the September 7,
2018 termination decision, set aside the August 29, 2018 expansion decision, and remanded the
case for additional development.

5

On remand, OWCP referred appellant, an updated SOAF, and the medical record to
Dr. Howard M. Pecker, Board-certified in orthopedic surgery and sports medicine, for an impartial
medical opinion. In an August 6, 2019 report, Dr. Pecker reviewed the medical record and SOAF.
On examination of appellant, he observed triggering of the index and long fingers of the right hand,
and a palpable medial osteophyte of the right knee. Dr. Pecker noted that there was no evidence
of carpal tunnel syndrome. He diagnosed degenerative cervical and lumbar disc disease, and
osteoarthritis of both knees. Dr. Pecker opined that all conditions present on examination were
age-related, without contribution by physical trauma. He returned appellant to full-time medium
duty.
By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day based on Dr. Pecker’s August 6, 2019 report
as the special weight of the medical evidence.
By separate decision also dated September 5, 2019, OWCP denied expansion of the
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement
of the right knee, bilateral knee arthritis, herniated/bulging cervical and lumbar discs, cervical and
lumbar degenerative disc disease, and inguinal hernia based on Dr. Pecker’s opinion as the special
weight of the medical evidence.
On September 12, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both September 5, 2019
decisions. The hearing was held on January 17, 2020.
OWCP subsequently received a July 24, 2019 report, wherein Dr. Serge Menkin, Boardcertified in physiatry and pain medicine, provided a history of injury and treatment. On
examination, he noted positive cervical, thoracic, and lumbar facet loading maneuvers, positive
Apley’s maneuver and McMurray’s sign in the right knee, and a positive right patellofemoral grind
test. He diagnosed lumbar radiculopathy, lumbar facet pain, cervicalgia, thoracic pain, and right
knee pain. Dr. Menkin reiterated these diagnoses in reports through December 18, 2019.
By decision dated March 24, 2020, OWCP’s hearing representative reversed the
September 5, 2019 termination decision. He remanded the case to obtain a supplemental report
from Dr. Pecker on whether the accepted November 3, 2010 employment injury had caused or
contributed to herniated/bulging cervical and lumbar discs, cervical and lumbar degenerative disc
disease, and right inguinal hernia. The hearing representative affirmed the September 5, 2019
denial of expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome, internal derangement of the right knee, and bilateral knee arthritis, based on
Dr. Pecker’s report as the special weight of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
13

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.14 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.15
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evid ence.16
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. 17 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.18
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.19
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.20
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or IME) who shall make an
examination. 21 This is called a referee examination and OWCP will select a physician who is
14

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

15

Id.

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
17

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
18

See P.M., Docket No. 18-0287 (issued October 11, 2018).

19

D.B., supra note 14; see V.K., Docket No. 19-0422 (issued June 10, 2020).

20

B.P., Docket No. 19-1376 (issued January 4, 2021); M.O., Docket No. 18-0229 (issued September 23, 2019);
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
21

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

7

qualified in the appropriate specialty and who has no prior connection with the case.22 When there
exist opposing medical reports of virtually equal weight and rationale and the case is referred to
an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 23
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Pecker, the IME, opined in his August 6, 2019 report that appellant’s bilateral knee
conditions were age-related with no contribution from physical trauma. However, he did not
identify the conditions that necessitated the prior bilateral knee surgeries, or explain whether the
accepted right medial collateral ligament sprain would have had any effect on those degenerative
processes or caused an acute meniscal tear. Additionally, in contrast to appellant’s treating
physicians, Dr. Pecker opined that there were no objective findings of carpal tunnel syndrome. He
did not address the reports of Dr. Filippone or Dr. Henderson, which documented the presence of
bilateral carpal tunnel syndrome and supported causal relationship. As Dr. Pecker did not provide
medical rationale, his opinion requires clarification.24
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification and/or
elaboration, OWCP has the responsibility to secure a supplemental report from the exa miner for
the purpose of correcting the defect in the original opinion. 25
For the above-described reasons, the opinion of Dr. Pecker requires clarification.
Therefore, in order to address the unresolved conflict in the medical opinion evidence, the Board
will remand the case to OWCP for a supplemental opinion regarding whether OWCP should
expand its acceptance of the claim to include bilateral carpal tunnel syndrome , internal
derangement of the right knee, and bilateral knee osteoarthritis. If Dr. Pecker is unable to clarify
his opinion or if his requested supplemental report is also lacking rationale, OWCP shall refer
appellant to a new IME for the purpose of obtaining a rationalized medical opinion on the issue. 26
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

23

R.R., supra note 14; see Y.I., Docket No. 20-0263 (issued November 30, 2020); Darlene R. Kennedy, 57 ECAB
414 (2006).
24

B.P., supra note 21.

25

T.C., Docket No. 20-1170 (issued January 29, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
26

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

8

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE ARMY, LOS
ALAMITOS ARMY AIRFIELD,
Los Alamitos, CA, Employer
__________________________________________

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

Docket No. 07-99
Issued: March 2, 2007

Case Submitted on the Record

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

JURISDICTION
On October 16, 2006 appellant filed a timely appeal from an August 17, 2006 Office of
Workers’ Compensation Programs’ decision, denying her request for a hearing and an April 25,
2006 decision, denying her claim for an injury on August 5, 2005. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury on August 5, 2005 in the
performance of duty; and (2) whether the Office abused its discretion in denying her request for a
hearing.
FACTUAL HISTORY
On August 5, 2005 appellant, then a 34-year-old air traffic control specialist, filed a
traumatic injury claim alleging that she experienced chest pain while she was talking on the
telephone. David Seibert, a coworker, indicated that she complained of chest pain radiating up

her left shoulder. Lisa Kutschera, appellant’s supervisor, stated that when Mr. Seibert notified
her that appellant was having chest pain, she instructed another employee to contact the fire
department. The fire department medics performed an evaluation and recommended that
appellant be transported to the hospital for further evaluation.
The record contains hospital discharge instructions for “Chest Pain, Non Cardiac” from
Dr. Peyam Vafadari. Also of record is an August 5, 2005 prescription for pain medication
signed by Dr. Charles J. Rennie.
On March 21, 2006 the Office requested additional evidence, including medical evidence
containing a diagnosis and an explanation as to how the diagnosed condition was causally related
to the August 5, 2005 work incident. No further evidence was submitted at that time.
By decision dated April 25, 2006, the Office denied appellant’s claim on the grounds that
the evidence failed to establish that she sustained an injury on August 5, 2005 in the performance
of duty.
By letter postmarked July 10, 2006, appellant requested an oral hearing and submitted
additional factual evidence. She stated that on August 5, 2005 she received a telephone call from
a citizen who complained of aircraft noise. The caller was rude and appellant became upset due
to working long hours and being understaffed. She felt a sharp pain in her chest radiating down
her left arm, which persisted for several minutes. Appellant indicated that the emergency room
physician determined that her condition was not cardiac related. He told her that it was a
possible muscular/skeletal problem. Ms. Kutschera stated that July and August 2005 were very
busy and stressful because airfield operations were at less than 50 percent staffing due to military
deployments and lack of qualified temporary replacements.
By decision dated August 17, 2006, the Office denied appellant’s July 10, 2006 request
for a hearing on the grounds that it was untimely filed more than 30 days after the April 25, 2006
decision. The Office exercised its discretion and determined that the issue in the case, which was
medical in nature, could be equally well addressed through a request for reconsideration and
additional evidence.1
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden to establish the essential elements of 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, that
an injury was sustained in the performance of duty as alleged and that any disability or medical
condition for which compensation is claimed is causally related to the employment injury.3
1

Appellant submitted additional evidence on appeal to the Board. The Board’s jurisdiction is limited to the
evidence that was before the Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c). The Board may
not consider this evidence for the first time on appeal.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place and in the manner alleged.4 Second, the employee must
submit medical evidence to establish that the employment incident caused a personal injury.5 An
employee may establish that the employment incident occurred as alleged but fail to show that
her disability or condition relates to the employment incident.
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6
ANALYSIS -- ISSUE 1
The Board finds that the evidence is insufficient to establish that appellant sustained an
injury on August 5, 2005 in the performance of duty. Appellant alleged that on August 5, 2005
she felt chest pain radiating to her left shoulder while she was talking on the telephone at work.
However, there is no medical evidence establishing that she sustained a specific injury as a result
of the work incident.
The record contains hospital discharge instructions for “Chest Pain, Non Cardiac” from
the emergency room physician, Dr. Vafadari. Also of record is an August 5, 2005 prescription
for pain medication signed by Dr. Rennie. However, there is no medical evidence which
contains a specific diagnosis of appellant’s condition. The discharge instructions indicate that
appellant’s chest pain was not caused by a cardiac condition. However, no other diagnosis of her
condition is provided. The prescription for pain medication does not contain a diagnosis.
Additionally, there is no medical evidence explaining how appellant’s condition was caused or
aggravated by the telephone call on August 5, 2005. The medical evidence fails to establish that
appellant sustained a specific injury or condition as a result of the August 5, 2005 work incident.
Therefore, the Office properly denied her claim.

4

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

5

Shirley A. Temple, 48 ECAB 404 (1997).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, supra note 5.

3

LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or, in lieu thereof, a review of the written record.7 A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which the hearing is sought.8 A claimant is not entitled to a hearing or a
review of the written record if the request is not made within 30 days of the date of the decision
for which the hearing is sought.9 The Office has discretion, however, to grant or deny a request
that is made after this 30-day period.10 In such a case, the Office will determine whether a
discretionary hearing should be granted and, if not, will so advise the claimant with reasons.11
ANALYSIS -- ISSUE 2
Appellant’s request for a hearing was postmarked July 10, 2006, more than 30 days after
the Office’s April 25, 2006 decision. Therefore, appellant was not entitled to a hearing as a
matter of right. The Office exercised its discretion and determined that the issue in the case, the
nature of her claimed injury and its relationship to her employment, could be resolved through a
request for reconsideration and the submission of additional evidence. The Board finds no
evidence to indicate that the Office abused its discretion in denying appellant’s untimely request
for a hearing in its August 17, 2006 decision.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury on August 5,
2005 in the performance of duty. The Board further finds that the Office did not abuse its
discretion in denying her untimely request for a hearing.

7

5 U.S.C. § 8124(b) of the Act provides that, before review under section 8128(a), a claimant for compensation
who is not satisfied with a decision of the Secretary of Labor is entitled to a hearing on his claim on a request made
within 30 days after the date of issuance of the decision before a representative of the Secretary of Labor. Section
8124(b)(1) is unequivocal in setting forth the time limitation for requesting a hearing; a claimant is not entitled to a
hearing as a matter of right unless the request is made within the requisite 30 days. See Charles J. Prudencio,
41 ECAB 499 (1990).
8

20 C.F.R. § 10.616(a).

9

James Smith, 53 ECAB 188 (2001).

10

20 C.F.R. § 10.616(b).

11

James Smith, supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 17 and April 25, 2006 are affirmed.
Issued: March 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BROOKLYN HARBOR HEALTHCARE
SYSTEM MEDICAL CENTER, Brooklyn, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0376
Issued: July 15, 2019

Case Submitted on the Record

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

JURISDICTION
On December 13, 2018 appellant, through counsel, filed a timely appeal from a July 12,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish a right upper
extremity injury causally related to the accepted March 27, 2017 employment incident.
FACTUAL HISTORY
On March 28, 2017 appellant, then a 55-year-old cook, filed a traumatic injury claim (Form
CA-1) alleging that, on March 27, 2017, she injured her right shoulder when pulling a pizza from
an oven. She noted that, under a prior claim, OWCP had accepted a January 31, 2013 right
shoulder and supraspinatus sprain with arthroscopic repair.4 Appellant stopped work on
March 27, 2017.
In a letter dated March 27, 2017, the employing establishment disagreed with appellant’s
assertions.
Appellant submitted unsigned chart notes dated March 27, 2017, a duty status report (Form
CA-17) dated March 27, 2017 with an illegible signature, and March 28 and 30, 2017 duty status
reports signed solely by a nurse practitioner.
By development letter dated April 5, 2017, OWCP informed appellant that she had not
submitted sufficient factual or medical evidence to establish her claim. It advised her of the type
of factual and medical evidence needed and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the information.
In response, appellant provided an April 22, 2017 statement in which she noted a previous
2014 right shoulder injury with surgical intervention. She recounted that on March 27, 2017 she
experienced the sudden onset of strong, sharp right shoulder pain while removing a pizza tray from
an oven. Appellant returned to light-duty work on approximately April 4, 2017.
OWCP also received an April 7, 2017 statement, she alleged that, while on light duty, she
had sustained a new right shoulder injury in the performance of duty when she lifted a case of
nutritional supplement.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the July 12, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

The present claim was assigned OWCP File No. xxxxxx491. Under OWCP File No. xxxxxx696, OWCP accepted
that appellant had sustained a sprain of the right shoulder, upper arm, and supraspinatus while in the performance of
duty on January 31, 2013. The claims have not been administratively combined.

2

In a duty status report (Form CA-17) dated March 22, 2017, Dr. David M. Frank, a Boardcertified internist and gastroenterologist, diagnosed right shoulder tenderness with limited motion.
In a March 27, 2017 report, Dr. Frank noted appellant’s history of a January 31, 2013
occupational right shoulder injury and September 2013 rotator cuff repair, subacromial
decompression, acromioplasty, and long head biceps tenotomy. He also noted that earlier on
March 27, 2017, appellant experienced right shoulder pain with radiation to the right elbow when
she had removed a pizza from an oven while at work. Dr. Frank obtained x-rays which
demonstrated degenerative changes of the acromioclavicular joint. He diagnosed right shoulder
pain.
In a report dated March 30, 2017, Dr. Barbara Joyce Freeman, a Board-certified orthopedic
surgeon, diagnosed improved adhesive capsulitis. She performed a corticosteroid injection to the
right shoulder and restricted appellant to light duty.
An April 10, 2017 magnetic resonance imaging (MRI) scan of the right shoulder
demonstrated postsurgical defects, bone marrow edema, and a partial tear of the distal
supraspinatus tendon.
In an April 20, 2017 report, Dr. Freeman diagnosed improved adhesive capsulitis of the
right shoulder and administered a steroid injection.
By decision dated May 15, 2017, OWCP accepted that the March 27, 2017 employment
incident occurred as alleged. However, it denied the claim finding that the medical evidence of
record was insufficient to establish causal relationship, as appellant’s physicians had not explained
how her diagnosed conditions were causally related to the accepted employment incident.
On April 13, 2018 appellant, through counsel, requested reconsideration and submitted a
report dated May 11, 2017 by Dr. Timur Hanan, a Board-certified physiatrist. Dr. Hanan noted
that appellant had undergone rotator cuff repair in 2013, but had normal function of the right
shoulder prior to the accepted March 27, 2017 employment incident. On examination, he observed
tenderness and limited range of motion of both shoulders, with weakness in the right shoulder.
Dr. Hanan diagnosed bilateral shoulder derangement. He opined that if the history presented by
appellant was correct, within a reasonable degree of medical certainty, the diagnosed injuries were
causally related to the March 27, 2017 employment incident, “which was the competent producing
cause of her current pathology.”
Appellant also submitted physical therapy treatment notes dated from May 11 to 23, 2017.
By decision dated July 12, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

3

time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 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.9 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.11 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is causal
relationship between the employee’s diagnosed condition and the accepted employment incident.12
The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment incident identified by the employee.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right upper
extremity injury causally related to the accepted March 27, 2017 employment incident.

5

C.B., Docket No. 18-0071 (issued May 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (issued 2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
C.B., supra note 5; K.M., Docket No. 15-1660 (issued September 16, 2016); Delores C. Ellyett, 41 ECAB
992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

C.B., supra note 5; D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB
1143 (1989).
10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

C.B., supra note 5; Y.J., Docket No. 18-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-156 (2006);
D’Wayne Avila, 57 ECAB 642, 649 (2006).
12

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

C.B., supra note 5; I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

Appellant submitted a series of reports from Dr. Frank noting the January 2013 right
shoulder injury and March 27, 2017 employment incident. He diagnosed right shoulder pain. The
Board notes, however, that pain is a symptom, but not a valid diagnosis.14
Dr. Freeman provided reports diagnosing adhesive capsulitis, but offered no opinion on
causal relationship. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.15 For this reason, Dr. Freeman’s reports are insufficient to establish appellant’s
claim.
In his May 11, 2017 report, Dr. Hanan opined that the March 27, 2017 employment caused
bilateral shoulder derangement. Although Dr. Hanan noted that appellant had a history of a prior
right shoulder injury and resultant surgery, he did not explain how removing the pizza from an
oven had injured appellant’s left shoulder. Furthermore, his report fails to address the effect of the
preexisting right shoulder condition on appellant’s current presentation. In any case where a
preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the physician must
provide a rationalized medical opinion that differentiates between the effects of the claimed
employment injury and the preexisting condition.16 The Board finds that Dr. Hanan’s report fails
to provide a rationalized opinion differentiating between the claimed March 27, 2017 employment
injury and the progression of the January 31, 2013 employment injury and surgical changes. It is
therefore insufficient to establish appellant’s claim.17
Appellant also submitted reports signed solely by a nurse practitioner or by a physical
therapist. These reports do not constitute competent medical evidence because a nurse practitioner
or physical therapist is not considered a “physician” as defined under FECA.18 Under FECA the
term “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by the
applicable state law.19 Consequently, the medical findings and/or opinions of a nurse practitioner

14

D.B., Docket No. 18-1359 (issued May 14, 2019); E.M., Docket No. 18-1599 (issued March 7, 2019).

15

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); Ellen L.
Noble, 55 ECAB 530 (2004).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
also B.C., Docket No. 18-1735 (issued April 23, 2019).
17

B.C., id.

18
S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a nurse practitioner is not a physician under FECA); J.L.,
Docket No. 17-1207 (issued December 8, 2017) (a physical therapist is not a physician under FECA); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be
considered medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
19

5 U.S.C. § 8101(2).

5

or physical therapist will not suffice for purposes of establishing entitlement to compensation
benefits.20
Finally, appellant has submitted diagnostic imaging studies in the form of an MRI scan and
x–rays in support of her claim. The Board has explained that diagnostic studies lack probative
value as they do not address whether the employment incident caused any of the diagnosed
conditions.21 These reports are therefore also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence to support her allegation that
she sustained a right shoulder injury causally related to the employment incident of March 27,
2017, the Board finds that she has not met her burden of proof to establish a claim.22
On appeal counsel contends that Dr. Hanan’s May 11, 2017 report contains sufficient
medical rationale to meet appellant’s burden of proof to establish causal relationship. However,
for the reasons set forth above, appellant has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right upper
extremity injury causally related to the accepted March 27, 2017 employment incident.

20

S.J., supra note 18; J.L., supra note 18.

21

C.B., supra note 5; see J.S., Docket No. 17-1039 (issued October 6, 2017).

22

C.B., supra note 5.

6

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 08-1920
Issued: January 22, 2009

Case Submitted on the Record

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

JURISDICTION
On June 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 5, 2007 and May 6, 2008 merit decisions concerning the
termination of her compensation and the Office’s June 4, 2008 decision denying her claim for
consequential injuries. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation effective October 5, 2007 on the grounds that she had no residuals after that date
of her accepted employment injuries, lumbar sprain and intervertebral lumbar disc disorder; and
(2) whether appellant met her burden of proof to establish that she sustained a gastrointestinal or
hip condition due to her accepted employment injuries.

FACTUAL HISTORY
In late 2006 the Office accepted that appellant, then a 36-year-old mail carrier, sustained
a lumbar sprain and intervertebral lumbar disc disorder due to her exposure over an extended
period to repetitive jolting and jarring while driving a rural mail vehicle. Appellant stopped
work on September 28, 2006 and the Office paid her compensation for periods of partial and
total disability. She periodically performed light-duty work for the employing establishment.
In several brief reports dated between October and December 2006, Dr. Curtis Rogers, an
attending Board-certified orthopedic surgeon, indicated that appellant had a lumbosacral sprain
and lumbar discogenic disease with myelopathy and posited that she could continue with lightduty work.1 In a January 31, 2007 report, he indicated that appellant had seen an orthopedic
surgeon who did not recommend surgery but noted that she complained of intolerable pain.
Dr. Rogers diagnosed thoracolumbar strain and lumbosacral strain with some discogenic features
and recommended work restrictions. In a February 8, 2007 report, he indicated that appellant
had thoracolumbar and lumbosacral strains and spasms with some myelopathy symptoms,
discogenic disease symptoms especially going down the right leg and some significant sacral
pain.
A February 27, 2007 emergency room record noted that appellant complained of severe
abdominal pain radiating to her back. The record contained a diagnosis of anemia secondary to
possible gastrointestinal bleeding. On March 1, 2007 Dr. Isaac Furaji, an attending Boardcertified gastroenterologist, performed an upper endoscopy with biopsies which found a small
hiatal hernia, an ulcer and evidence of prior gastric bypass. In an April 3, 2007 report, he
indicated that appellant had a gastric ulcer induced by nonsteroidal anti-inflammatory drugs
including Diclofenac and Ibuprofen.
In a March 15, 2007 report, Dr. David Rollins, an attending Board-certified orthopedic
surgeon, stated that appellant reported persistent low back radiating into the right leg more than
the left with tingling of the right third, fourth, and fifth toes and tingling of her bilateral fourth
and fifth fingers. He diagnosed lumbar strain and stated the magnetic resonance imaging testing
results did not appear to coincide with any of her symptoms. Dr. Rollins stated that appellant
was temporarily totally disabled pending a neurosurgical evaluation.
In an April 2, 2007 report, Dr. John Emery III, an attending Board-certified
neurosurgeon, stated that the findings of diagnostic testing were unremarkable and that appellant
did not have radiculopathy, myelopathy, pseudoclaudication or a picture consistent with
discogenic pain. In an April 6, 2007 report, Dr. Rollins stated that appellant had a lumbar strain
and could return to limited-duty work with no stooping or bending and no lifting, pulling, or
pushing over 10 pounds.

1

The record contains diagnostic testing from January 2007 showing that appellant had spondylolisthesis at L5-S1.
Dr. Rogers initially prescribed Vicodin, Ibuprofen and Flexeril for appellant’s pain, but in December 2006 he
switched her medication to Diclofenac and in January 2007 he placed her on Trazodone and Endocet or Percocet for
her pain.

2

In a June 20, 2007 report, Dr. Aubrey Swartz, a Board-certified orthopedic surgeon who
served as an Office referral physician, described appellant’s medical history, including
diagnostic testing. He stated that magnetic resonance imaging and bone scan testing were both
unremarkable. Dr. Swartz indicated that on examination appellant had no back spasms but did
have tenderness. He opined that appellant had no disc herniation and only had Grade 1
spondylolisthesis and apophyseal joint degenerative changes at L5-S1 which were preexisting.
Dr. Swartz advised that examination findings in 2006 and January 2007 were essentially
objectively negative. He opined that appellant’s work caused only a temporary aggravation of
the spondylolisthesis and that such aggravation ceased no later than December 8, 2006.
Dr. Swartz completed a work restriction form, indicating some restrictions with regard to
operating a motor vehicle and pushing, pulling and lifting, but stated that these restrictions were
on the basis of the preexisting spondylolisthesis.
In a September 5, 2007 letter, the Office advised appellant that it proposed to terminate
her compensation, both for wage loss and medical benefits, on the basis of Dr. Swartz’s report.
It advised appellant that she had 30 days to provide evidence if she contested that proposed
termination. In an October 2, 2007 letter, appellant disagreed with the proposed termination and
stated that she was providing medical evidence about her stomach problems resulting from
Dr. Rogers’s treatment. She submitted a September 6, 2007 report in which Dr. Rollins
indicated that she continued to have back problems.
In an October 5, 2007 decision, the Office terminated appellant’s compensation effective
October 5, 2007 on the grounds that she had no residuals after that date of her accepted
employment injuries, lumbar sprain and intervertebral lumbar disc disorder. It based its
termination on Dr. Swartz’s report.
Appellant requested a hearing before an Office hearing representative. At the hearing
held on February 28, 2008 she testified that she did not currently have a back condition but
instead had gastrointestinal and hip conditions that she contended were consequential to her
accepted back condition. Appellant explained that she had a gastrointestinal condition with three
surgeries caused by drugs prescribed by Dr. Rogers for her back condition and she had a hip
condition caused by physical therapy prescribed for her back condition. She claimed that her hip
condition was now affecting her sciatic nerve.
In an April 11, 2008 report, Dr. Scott C. Hennes, an attending family practitioner,
indicated that he was concerned about her bleeding gastric ulcer. He stated:
“[Appellant] has a history of gastric bypass surgery and was put on antiinflammatories including Diclofenac. She presented to my office in February of
2007 with profound anemia of 5.1. [Appellant] was directly admitted to the
hospital on February 27, 2007. An endoscopy by Dr. Furaji was done which
showed a gastric ulcer. [Appellant] received multiple transfusions to improve her
hemoglobin. Fortunately, she is stable. My concern is that [appellant] was given
anti-inflammatories in a post gastric bypass patient is contraindicated and believe
this needs to be addressed by the Board in this lady’s management. She will be
on continuous Proton Pump inhibitors and has been advised to avoid antiinflammatories completely.”

3

In a June 4, 2008 decision, the Office denied appellant’s consequential injury claim on
the grounds that she did submit sufficient rationalized medical evidence to show that she
sustained a gastrointestinal or hip condition due to her accepted employment injuries.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act,2 once the Office has accepted a claim
it has the burden of justifying termination or modification of compensation benefits.3 The Office
may not terminate compensation without establishing that the disability ceased or that it was no
longer related to the employment.4 The Office’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant, then a 36-year-old mail carrier, sustained a lumbar
sprain and intervertebral lumbar disc disorder due to her exposure over an extended period to
repetitive jolting and jarring while driving a rural mail vehicle. It terminated appellant’s
compensation effective October 5, 2007 based on a June 20, 2007 report of Dr. Swartz, a Boardcertified orthopedic surgeon who served as an Office referral physician.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Swartz. The June 20, 2007 report of Dr. Swartz establishes that
appellant had no disability due to her accepted employment injuries after October 5, 2007.
Dr. Swartz stated that magnetic resonance imaging and bone scan testing were both
unremarkable and, on examination, appellant had no back spasms but did exhibit tenderness. He
opined that appellant had no disc herniation and only had Grade 1 spondylolisthesis and
apophyseal joint degenerative changes at L5-S1 which were preexisting condition. Dr. Swartz
further indicated that examination findings in 2006 and January 2007 were essentially
objectively negative.
The Board has carefully reviewed the opinion of Dr. Swartz and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Swartz provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.6 He provided medical rationale for
his opinion by explaining that appellant’s work caused only a temporary aggravation of her
spondylolisthesis and that such aggravation ceased no later than December 8, 2006. Dr. Swartz
2

5 U.S.C. §§ 8101-8193.

3

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

4

Id.

5

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

6

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

4

explained that appellant’s continuing need for work restrictions was due to her preexisting
spondylolisthesis and not her work-related injuries.
The record contains reports from 2007 of Dr. Rollins and Dr. Rogers, two attending
Board-certified orthopedic surgeons, which indicate that appellant continued to have back
complaints. Some of these reports contained a diagnosis of lumbar sprain. However, these
reports are of limited probative value on the relevant issue of the present case in that they do not
provide a fully rationalized medical opinion that appellant continued to have residuals of her
accepted employment injuries.7 For these reasons, the Office properly relied on the opinion of
Dr. Swartz to terminate appellant’s compensation.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that flows
from the injury is deemed to arise out of the employment, unless it is the result of an independent,
intervening cause attributable to the employee’s own intentional conduct.8
ANALYSIS -- ISSUE 2
Appellant alleged that she sustained gastrointestinal and hip conditions due to her
accepted employment injuries. She claimed that she had a gastrointestinal condition caused by
drugs prescribed by Dr. Rogers for her back condition and that she had a hip condition caused by
physical therapy prescribed for her back condition.
The record contains a February 27, 2007 emergency room record indicating that appellant
complained of severe abdominal pain radiating to her back. The record contained a diagnosis of
anemia secondary to possible gastrointestinal bleeding. On March 1, 2007 Dr. Furaji, an
attending Board-certified gastroenterologist, performed an upper endoscopy with biopsies which
found a small hiatal hernia, an ulcer and evidence of prior gastric bypass. In an April 3, 2007
report, Dr. Furaji indicated that appellant had a gastric ulcer induced by nonsteroidal antiinflammatory drugs including Diclofenac and Ibuprofen. In an April 11, 2008 report,
Dr. Hennes, an attending family practitioner, expressed concern about the effects of antiinflammatory drugs, including Diclofenac, on appellant’s stomach.
The Board notes that, although these reports suggest a connection between antiinflammatory drugs prescribed for appellant’s back condition and her gastrointestinal problems,
the record lacks a rationalized medical report establishing such a connection. Dr. Furaji merely
stated that appellant had a gastric ulcer induced by nonsteroidal anti-inflammatory drugs
including Diclofenac and Ibuprofen.
He did not describe appellant’s longstanding
gastrointestinal problems in any detail or explain how they were related to such drugs. Such
rationale is especially necessary as appellant underwent several gastrointestinal surgeries prior to
7

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
8

John R. Knox, 42 ECAB 193, 196 (1990).

5

suffering the accepted employment injuries. Appellant did not submit any medical evidence
linking her hip problems to the accepted employment injuries. For these reasons, the Office
properly denied appellant’s claim for consequential injuries.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective October 5, 2007 on the grounds that she had no residuals after that date
of her accepted employment injuries, lumbar sprain and intervertebral lumbar disc disorder. The
Board further finds that appellant did not meet her burden of proof to establish that she sustained
a gastrointestinal or hip condition due to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 4 and May 6, 2008 and October 5, 2007 decisions are affirmed.
Issued: January 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Greensboro, NC,
Employer
__________________________________________

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

Docket No. 15-263
Issued: March 17, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 17, 2014 appellant filed a timely appeal from a December 1, 2014
nonmerit decision and a September 25, 2014 merit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the September 25, 2014 decision.
Because the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final merit
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D.
Pruitt, 57 ECAB 126 (2005). Appellant may submit this evidence to OWCP along with a request for
reconsideration.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a traumatic
injury in the performance of duty on December 27, 2013; and (2) whether the Branch of
Hearings and Review properly denied his request for a hearing.
FACTUAL HISTORY
On December 27, 2013 appellant, then a 41-year-old electronic technician, filed a
traumatic injury claim (Form CA-1) alleging a fracture and cut to the middle finger of his right
hand. He stated that on this date, he momentarily lost balance while trying to determine the
location of a bad bearing. A supervisor checked a box indicating that appellant was injured in
the performance of duty. Appellant did not stop work.
In a note dated December 27, 2013, a physician assistant stated that appellant could
return to work the next day and should see a hand specialist the next week.
By letter dated August 14, 2014, OWCP advised appellant that his claim had been
reopened for consideration because medical bills had exceeded $1,500.00 It stated that the
evidence of record was insufficient to support his claim, noting that the only medical evidence of
record had been signed by a physician assistant, who did not qualify as a physician under FECA.
OWCP afforded appellant 30 days to submit additional medical evidence in support of his claim.
Appellant did not respond.
By decision dated September 25, 2014, OWCP denied appellant’s claim. It found that he
had not established an injury in the performance of duty. OWCP accepted that appellant was a
federal civilian employee who filed a timely claim and that the evidence supported that an
employment incident occurred, but that an injury had not been established.
By letter dated November 13, 2014, appellant requested an oral hearing before an OWCP
hearing representative. The request was postmarked November 17, 2014. Appellant submitted a
statement with his request, which described in detail how his injury occurred and suggesting that
OWCP contact his physician for medical evidence.
By decision dated December 1, 2014, the Branch of Hearings and Review denied the
hearing request as untimely. The hearing representative also denied a discretionary hearing,
noting that appellant could instead file a request for reconsideration along with additional
relevant evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time

3

Supra at note 1.

2

limitation period of FECA, that an injury4 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.6
OWCP procedures provide for acceptance of a claim without a medical report when the
following criteria are satisfied: (1) the condition reported is a minor one which can be identified
on visual inspection by a lay person (e.g., burns, lacerations, insect stings, or animal bites);
(2) the injury was witnessed or reported promptly and no dispute exists as to the fact of injury;
and (3) no time was lost from work due to disability.7
ANALYSIS -- ISSUE 1
Appellant alleged that on December 27, 2013, he sustained a fracture and cut to the
middle finger of his right hand in the performance of duty. OWCP originally accepted the claim
as a minor injury but reopened the claim once the medical expenses exceeded $1,500.00. Upon
further review, it denied the claim on September 25, 2014, finding that appellant had not
submitted evidence to substantiate an injury as a result of this incident. The Board finds the
evidence submitted in support of the claim was insufficient to establish fact of injury.
The Board also finds that appellant has not established by submission of medical
evidence from a qualified physician an injury due to the accepted incident.8

4

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

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

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

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013);
Melissa A. Carter, 45 ECAB 618 (1994).
8

Id.

3

Under FECA, the reports of nonphysicians, including physician assistants, do not
constitute probative medical evidence unless countersigned by a physician.9 The December 27,
2013 note from a physician assistant does not constitute probative medical evidence. As such,
there is no probative medical evidence of record in this case. Because appellant did not submit
any medical evidence from a qualified physician in support of his claim, he has not established
that the employment incident of December 27, 2013 caused a personal injury.
LEGAL PRECEDENT -- ISSUE 2
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP may obtain a hearing by writing to the address specified in the decision.10 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.11 The claimant must not have
previously submitted a reconsideration request (whether or not it was granted) on the same
decision.12 If the request is not made within 30 days, a claimant is not entitled to a hearing as a
matter of right. However, the Branch of Hearings and Review may exercise its discretion to
either grant or deny a hearing.13
ANALYSIS -- ISSUE 2
OWCP issued its latest merit decision on September 25, 2014. Appellant had 30 days to
request a hearing, but the hearing request was postmarked November 13, 2014. The regulations
provide that “[t]he hearing request must be sent within 30 days […] of the date of the decision
for which a hearing is sought.”14 Because appellant’s November 13, 2014 request was untimely,
he was not entitled to a hearing as a matter of right. The Branch of Hearings and Review also
denied his hearing request because it found that his claim for traumatic injury could be equally
well addressed by requesting reconsideration before OWCP. The Board finds that the hearing
representative properly exercised his discretionary authority in denying appellant’s request for a
hearing.15

9

See 5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369, 372 (1998) (regarding physicians’ assistants).

10

20 C.F.R. § 10.616(a).

11

Id.

12

Id.

13

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
14

Supra note 10.

15

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury in the performance of duty on December 27, 2013. The Board further finds that the
Branch of Hearings and Review properly denied appellant’s hearing request.
ORDER
IT IS HEREBY ORDERED THAT the December 1 and September 25, 2014 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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