United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, BEAUMONT
STATION POST OFFICE, Lexington, KY,
Employer
__________________________________________

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

Docket No. 20-1126
Issued: January 20, 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 May 4, 2020 appellant filed a timely appeal from a March 3, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 3, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 2, 2019, finding that she no longer had
disability or residuals causally related to her accepted November 13, 2017 left shoulder conditions.
FACTUAL HISTORY
On November 13, 2017 appellant, then a 52-year-old sales and services associate, filed a
traumatic injury claim (Form CA-1) alleging that on that date she dislocated her left shoulder while
lifting a package. OWCP accepted the claim for left shoulder joint dislocation, and subsequently
expanded acceptance of the claim to include incomplete left shoulder rotator cuff tear or rupture.
It paid appellant wage-loss compensation on the supplemental rolls beginning December 29, 2017
and on the periodic rolls beginning April 1, 2018.
Appellant underwent authorized left shoulder rotator cuff shoulder repair, and left shoulder
capsule repair on April 27, 2018.
On November 2, 2018 OWCP referred appellant to Dr. Gregory Grau, a Board-certified
orthopedic surgeon, together with a statement of accepted facts and medical record, for a second
opinion evaluation as to whether she continued to have residuals or disability due to the accepted
November 13, 2017 employment injury.
In a November 28, 2018 report, Dr. Grau, summarized appellant’s history of injury and
medical treatment. He reviewed her medical records and provided physical examination findings.
Dr. Grau noted that appellant had not experienced further issues regarding her left shoulder,
following left shoulder arthroscopy, and rotator cuff repair in April 2018. He did, however, note
her current complaints regarding her right shoulder. Dr. Grau diagnosed status post left shoulder
rotator cuff tear, and right shoulder impingement with acromioclavicular arthritis and underlying
rotator cuff tear. He opined that her accepted left shoulder conditions had resolved. In support of
this conclusion, Dr. Grau noted that the subjective and objective findings showed that appellant
was status post left shoulder rotator cuff repair and doing well based on findings that she had
regained range of motion and strength. He also opined that her right shoulder conditions, which
he attributed to her work had not resolved based on positive examination findings and magnetic
resonance imaging (MRI) scan findings. With respect to appellant’s ability to work, Dr. Grau
opined that she was disabled from her date-of-injury job, but would be able to work with right
shoulder restrictions.
On April 26, 2019 OWCP requested clarification from Dr. Grau regarding whether
appellant’s accepted conditions had resolved. It noted that he had opined that the accepted left
shoulder conditions had resolved; however, he had also opined that conditions of unspecified right
shoulder rotator cuff tear or rupture, right shoulder impingement syndrome, and right shoulder
primary osteoarthritis were employment related and had not resolved. OWCP requested that
Dr. Grau provide a supplemental opinion explaining how these conditions had been caused or
aggravated by the accepted November 13, 2017 employment injury and whether any of these
conditions had resolved.

2

On April 17, 2019 OWCP requested that appellant’s treating physician, Dr. Thomas D.
Cervoni, a Board-certified orthopedic surgeon, address appellant’s current medical status.
In response to OWCP’s request, on May 2, 2019 Dr. Cervoni, agreed with Dr. Grau that
appellant’s accepted left shoulder conditions had resolved.
On July 30, 2019 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits as her accepted left shoulder condition had resolved based on
Dr. Grau’s second opinion report. It advised that the right shoulder conditions were not accepted
conditions and he had not provided any medical reasoning explaining how those condition s were
related to the accepted November 13, 2017 employment injury. In addition, OWCP noted that
appellant’s treating physician, Dr. Cervoni agreed that the accepted left shoulder conditions had
resolved.
In an August 27, 2019 report, Daniel Coby, a physician assistant, provided examination
findings, detailed the injury history, and diagnosed consequential right shoulder impingement
syndrome, right rotator cuff tendonitis, and right rotator cuff tear, unspecified tear extent.
By decision dated October 1, 2019, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective October 2, 2019. It found that her accepted left
shoulder conditions had resolved based on the opinions of Dr. Grau, an OWCP referral physician,
and Dr. Cervoni, appellant’s treating physician.
On October 29, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated March 3, 2020, the hearing representative affirmed OWCP’s October 1,
2019 decision terminating appellant’s wage-loss compensation and medical benefits, finding that
the medical evidence established that her accepted left shoulder conditions had resolved.3
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 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

3

The hearing representative remanded the case for further development of the evidence on whether appellant
sustained consequential right shoulder conditions.
4

A.T., Docket No. 20-0334 (issued October 8, 2020); R.P., Docket No. 17-1133 (issued January 18, 2018); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment. 8
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 2, 2019, as she no longer had disability or
residuals causally related to her accepted left shoulder conditions.
In a report dated November 28, 2018, Dr. Grau concluded that appellant’s accepted left
shoulder conditions had resolved. He noted that she had a good recovery and had no left shoulder
issues following her April 2018 surgical procedure. Dr. Grau opined that appellant’s left shoulder
conditions had resolved without residuals and that any remaining disability was due to her right
shoulder conditions.
Dr. Cervoni, appellant’s attending physician, agreed in a report dated May 2, 2019 that
appellant’s accepted left shoulder conditions had resolved.
As the evidence of record establishes that appellant no longer has disability or residuals
due to her accepted left shoulder employment conditions, the Board finds that OWCP properly
terminated her entitlement to wage-loss compensation and medical benefits effective
October 2, 2019.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 2, 2019, as she no longer had disability or
residuals causally related to her accepted November 13, 2017 left shoulder conditions.

5

A.T., id.; R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

G.B., Docket No. 20-0750 (issued October 27, 2020); K.W., Docket No. 19-1224 (issued November 15, 2019);
see M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).
7

A.T., supra note 4; A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5,
2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361,
364 (1990).
8

A.T., supra note 4; K.W., supra note 6; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford,
53 ECAB 727 (2002); Furman G. Peake, id.

4

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 20, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 21-0995
Issued: March 2, 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 June 17, 2021 appellant filed a timely appeal from a December 21, 2020 nonmerit
decision and an April 15, 2021 merit decision and 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) whether
appellant has met his burden of proof to establish permanent impairment of a scheduled member
or function of the body, warranting a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 10, 1989 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 1989 he sustained a left knee injury when pulling an allpurpose container (APC) while in the performance of duty. He did not stop work but was granted
disability retirement on March 11, 1992. OWCP accepted that appellant sustained a sprain/strain
of the left knee and leg, a tear of the left lateral meniscus, and left corns/calluses. It authorized
arthroscopic surgery on the left knee, performed on January 23, 1990.3
On April 15, 2005 appellant filed a notice of recurrence of disability (Form CA-2a),
alleging that he experienced pain and weakness in his left knee commencing October 30, 2004,
causally related to the accepted May 10, 1989 employment injury.
By decision dated August 16, 2006, OWCP denied appellant’s recurrence of disability
claim, finding that the evidence of record was insufficient to establish that appellant sustained a
recurrence of disability commencing October 30, 2004 causally related to his work injury of
May 9, 1989.
On November 28, 2006 appellant appealed to the Board. 4 By decision dated June 7, 2007,
the Board affirmed the August 16, 2006 OWCP decision.
OWCP received additional evidence. Appellant subsequently submitted employing
establishment medical records dated March 4, 1977 through June 7, 1988 where he was treated for
several conditions including ankle, toe, right foot, and back pain. He was treated by Dr. Michael
Redlich, a Board-certified neurologist, on February 25, 1992 for cervical and thoracic disc
syndrome. Likewise, from March 12, 1993 through August 11, 2000, Dr. A. Janati, a Boardcertified neurologist, treated appellant for chronic neck and left lower extremity pain. He
diagnosed degenerative arthritis of the cervical and thoracic spine, which was related to trauma
while in the military in 1978. Appellant attended physical therapy from July 17, 1978 through
March 16, 2000. He also submitted a position description for a personnel clerk.
Dr. Azer treated appellant from October 20, 1989 through September 10, 1991 for
callouses on his left foot and left knee pain. OWCP received diagnostic studies from March 3,
1992 through December 21, 2017.

2

Docket No. 07-406 (issued June 7, 2007).

3

On January 23, 1990 Dr. Samir N. Azer, a Board-certified orthopedist, performed arthroscopy of the left knee,
removed loose chondral fracture, shaved crater, and diagnosed loose chondral body of the left knee with greater defect
of the left medial femoral condyle weight bearing surface.
4

Supra note 2.

2

On January 21, 2017 Dr. Ferdinand M. Amante, Jr., an orthopedic surgeon, reevaluated
appellant for a painful left knee. Appellant reported sustaining a proximal left leg fracture at 14
years old and underwent a left knee meniscectomy in 1990. He diagnosed osteoarthritis of the left
knee and left leg length discrepancy which could be an aggravating factor for osteoarthritis.
In a statement dated September 13, 2018, appellant provided a history of his employment
with the Federal Government. He sought to expand the acceptance of his claim to include
aggravated underlying preexisting medical conditions. In a statement dated December 13, 2018,
appellant again requested expansion of his claim.
In a medical certificate and report dated November 20, 2018, Dr. Emiliano B. Tablante, a
Board-certified orthopedist, noted a history of the May 9, 1989 work injury and provided a medical
history from May 1967 through January 2, 2018. He noted that appellant underwent a posterior
decompression L3-4 and L4-5 on January 2, 2018. Dr. Tablante noted findings on examination of
decreased stride length, tight on trapezius, paracervical and lats doris, muscle spasm o f lower
trapezius, intermittent localized pain of the knee and patella, muscle spasm with dull pain in the
feet and hand, and cervical pain with radiculopathy. He diagnosed left ganglion cyst of first
metatarsal head, focal right synovitis, posterior calcaneal spur, left os peroneum, right pes planus,
overpronation of the foot, osteoarthritis changes of the knees, left patella osteophyte, right knee
varus, status post chronic low back pain with radiculopathy, levoscoliosis, compression deformity
of the thoracic spine, thoracic spondylosis, cervical spondylosis with radiculopathy at C4-5, C5-6,
C6-7, mild anterior wedge compression deformities at C5-6, and bilateral carpal tunnel syndrome.
Dr. Tablante opined within a reasonable degree of medical certainty that the above medical
conditions were consequential to the accepted left knee and leg sprain/strain, left lateral meniscus
tear, and left calluses. He recommended further diagnostic work up including epidural cervical
injections and diagnostic arthroscopy of the left knee.
On May 30, 2019 appellant again requested his claim be reopened and expanded to include
additional conditions.
On September 28, 2020 appellant requested reconsideration of the August 16, 2006 OWCP
decision denying his recurrence claim. He alleged clear evidence of error in the last OWCP
decision based on OWCP’s failure to develop his subsequent injury claims after the January 25,
1990 OWCP-authorize arthroscopic left knee surgery revealed loose chondral bodies and defect
of the medial femoral condyle. Appellant also requested a schedule award for the left lower
extremity, and expansion of the acceptance of his claim.
On September 28, 2020 OWCP received an electromyogram (EMG) and nerve conduction
velocity (NCV) study dated September 18, 2003 that revealed multiple peripheral neuropathy,
sensorimotor affecting the lower more than upper extremities without ruling out bilateral chronic
cervical C5-6 radiculopathies and bilateral lumbar L5 radiculopathies. X-rays of the feet dated
October 3, 2017 revealed posterior calcaneal spurs and os peroneum of the left foot. An x -ray of
the right hip dated November 24, 2019 revealed no discrete fracture or dislocation. An x-ray of
both knees dated March 10, 2020 revealed mild degenerative osteoarthritic changes and bilateral
patellar enthresophytes.

3

On October 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated October 20, 2020, OWCP requested that appellant submit an
impairment evaluation addressing whether he had reached MMI and provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days to submit additional medical
evidence in support of his schedule award claim.
By decision dated December 21, 2020, OWCP denied appellant’s reconsideration request
of the August 16, 2006 recurrence decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
By decision dated April 15, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely, it undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.11
5

A.M.A., Guides (6 th ed. 2009).

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 (September 2020).

4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures 16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including a merit decision of the Board.17 The most recent merit decision on the recurrence issue
was the Board’s June 7, 2007 decision, which affirmed the denial of appellant’s claim for a
recurrence of disability on October 30, 2004. As OWCP received his request for reconsideration
on September 28, 2020, more than one year after the June 7, 2007 decision, the Board finds that it
was untimely filed. Because appellant’s request was untimely filed, he must demonstrate clear
evidence of error on the part of OWCP in its August 16, 2006 decision.

12

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (September 2020).

14

U.C., Docket No. 19-1753 (issued June 10, 2020).

15

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

20 C.F.R. § 10.607(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a. (September 2020); R.G., Docket No. 21-0540 (issued November 9, 2021); B.P., Docket No. 20-0178
(issued August 23, 2021); Debra McDavid, 57 ECAB 149 (2005).

5

Appellant submitted employing establishment medical records dated March 4, 1977
through June 7, 1988; treatment notes from Dr. Redlich dated February 25, 1992; reports from
Dr. Janati dated March 12, 1993 through August 11, 2000; physical therapy treatment notes from
July 17, 1978 through March 16, 2000; and reports from Dr. Azer dated October 20, 1989 through
September 10, 1991. These reports are not relevant to the recurrence claim as they predate the
alleged date of the recurrence and do not raise a substantial question as to whether the August 16,
2006 decision was in error. 18
Appellant submitted diagnostic studies dated March 3, 1992 through March 10, 2020
including x-rays, MRI scans, and an EMG/NCV study. Diagnostic studies, standing alone, lack
probative value on the issue of causal relationship. 19 Therefore, none of this evidence manifests
on its face that OWCP committed an error in denying appellant’s claim for recurrence of disability
commencing October 30, 2004. Thus, the evidence is insufficient to demonstrate clear evidence
of error.20
Appellant also submitted a January 21, 2017 report from Dr. Amante who diagnosed
osteoarthritis of the left knee and left leg length discrepancy, which could be an aggravating factor
for osteoarthritis. Similarly, in a medical certif icate and report dated November 20, 2018,
Dr. Tablante provided additional nonaccepted diagnoses and opined within a reasonable degree of
medical certainty the mentioned diagnoses were consequential to the accepted left knee and leg
sprain/strain, left lateral meniscus tear, and left calluses. However, these reports do not address
the claimed recurrence of disability commencing October 30, 2004. Thus, this evidence does not
raise a substantial question as to the correctness of OWCP’s August 16, 2006 merit decision. 21
As appellant has not raised an argument or submitted any evidence that manifests on its
face that OWCP committed an error in denying his recurrence claim, the Board finds that his
untimely request for reconsideration failed to demonstrate clear evidence of error. 22
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA, 23 and its implementing federal regulations,24 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
18

M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).

19

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
20

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

21

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

22

Id.

23

5 U.S.C. § 8107.

24

20 C.F.R. § 10.404.

6

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 25 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 26
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 27 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.28 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a d iscussion of how the
impairment rating was calculated. 29 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.30
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 31 OWCP procedures, however,
further provide that if a claimant does not provide an impairment evaluation from his or her
physician when requested, and there is an indication of permanent impairment in the medical
evidence of file, the claims examiner (CE) should refer the claimant for a second opinion
evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion
examination to determine if the evidence in the file is sufficient for the DMA to provide an
impairment rating. If the case is referred for a second opinion, the report should contain the
information described in 6a above.32 If it does not contain this information, clarification with the
second opinion should be sought. 33

25

Id. at § 10.404(a).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
27

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

28

Supra note 8 at Chapter 2.808.5 (March 2017).

29

Id. at Chapter 2.808.6(a) (March 2017).

30

Id. at Chapter 2.808.6(c).

31

Id.

32

Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was
calculated. Supra note 8 at Chapter 2.808.6a.
33

Supra note 8 at Chapter 2.808.6d (March 2017).

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted the claim for sprain/strain of the left knee and leg, a tear of the left lateral
meniscus, left corns/calluses, and aggravation of other spondylosis with radiculopathy,
lumbosacral region. On October 9, 2020 appellant filed a claim for a schedule award. Under
FECA,34 where a claimant is seeking a schedule award, he or she must submit a medical report
that “must contain accurate measurements of the function of the organ or member, in accordance
with the A.M.A., Guides.”35 The burden is on the claimant to provide this evidence. 36
In support of his claim, appellant submitted a November 20, 2018 report by Dr. Tablante.
However, the Board finds that it is of diminished probative value because he neither utilized the
sixth edition of the A.M.A., Guides, nor found that appellant reached MMI. Therefore,
Dr. Tablante’s report is insufficient to establish permanent impairment of a scheduled member or
function of the body causally related to appellant’s accepted employment condition. 37
The remaining medical evidence submitted by appellant is also insufficient to establish
permanent impairment of a scheduled member or function of the body causally related to
appellant’s accepted employment condition as it also does not conform with the protocols of the
A.M.A., Guides.
Accordingly, the Board finds that appellant has not met his burden of proof.
Appellant may request a schedule award, or increased schedule award, at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. The Board
further finds that appellant has not met his burden of proof to establish permanen t impairment of
a scheduled member or function of the body, warranting a schedule award.

34

Supra note 1.

35

20 C.F.R. § 10.333.

36

Id. at § 10.115.

37

See M.G., Docket No. 19-0823 (issued September 17, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 and December 21, 2020 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 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
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, ARCADIA STATION,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 19-0972
Issued: November 18, 2019

Case Submitted on the Record

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

JURISDICTION
On April 5, 2019 appellant, through counsel, filed a timely appeal from a February 27,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral foot
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 27, 2018 appellant, then a 42-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she experienced swelling and pain in her foot as a result of
walking eight miles a day on her dismount and loop route while in the performance of duty. She
noted that she first became aware of her condition and its relationship to her federal employment
on April 25, 2018. Appellant stopped work on April 30, 2018. On the reverse side of the claim
form, the employing establishment controverted the claim as there was no medical evidence to
support a work-related injury and pain was not a medical diagnosis.
In an accompanying undated statement, appellant noted that on April 25, 2018 she felt a
sharp pain in her foot, which worsened with every step she took, while walking on her route. She
reported her injury to her supervisor and manager and sought medical treatment on April 27, 2018.
In support of her claim, appellant submitted reports dated April 28 and 30, 2018 from
Kaitlin Buss and Jaimie Branning, certified physician assistants who noted appellant’s history of
injury and provided examination findings. Ms. Buss diagnosed bunion and pain of the left foot.
Ms. Branning diagnosed stable and improved left foot pain. Both physician assistants advised that
appellant was fit for duty with restrictions.
Appellant also submitted a left foot x-ray report dated April 28, 2018 from Dr. Lee W.
Beville, a Board-certified diagnostic radiologist. Dr. Beville provided impressions of no acute
findings and normal for age.
In a development letter dated May 9, 2018, OWCP notified appellant of the factual and
medical deficiencies of her claim. It provided a development questionnaire for her completion and
requested that she submit a response in order to substantiate the factual basis of her claim. OWCP
asked appellant to provide detailed information concerning the employment-related activities she
believed contributed to her medical condition and how often and long she performed such duties.
It also asked her to provide a description of all activities outside her federal employment. OWCP
also instructed appellant to provide a narrative medical report from her physician which contained
a detailed description of findings and diagnoses, explaining how her work activities caused,
contributed to, or aggravated her medical condition. It afforded her 30 days to respond.
In a response dated May 4, 2018, appellant noted that she had worked as a city carrier for
17 years. She described the employment duties that she believed contributed to her condition.
Appellant alleged that her job duties involved walking 2 to 12 miles a day, lifting up to 70 pounds,
twisting, bending, climbing stairs, reaching, and repetitive elbow and wrist motion. She further
alleged that from June/July 2004 until October 2017, she worked as a regular carrier on a route
that was 75 percent “NBU” and involved walking an average of four miles or less depending on
the amount of parcels. Appellant claimed that the increase in physical demand on her feet caused
stiffness, soreness, and swelling which occurred on April 25, 2018. Occasionally, her feet became

2

sore throughout her career, but not to the point where every step she took hurt. Appellant further
claimed that she never had any issues with her feet until she had bid on an all-residential and
walking route. She claimed that given her duties since becoming a union steward in
February 2016, she did not have any activities and hobbies. Appellant also did not have any stress.
OWCP subsequently received an Arizona state worker’s and physician’s report of injury
dated April 28, 2018 from Ms. Buss who noted examination findings and reiterated her diagnosis
of left foot bunion.
OWCP also received an undated letter by Dr. Vanna R. Campion, a Board-certified family
practitioner. Dr. Campion noted that appellant was currently being evaluated by podiatry for a
musculoskeletal injury sustained from prolonged walking that limited her ability to walk long
distance without pain.
By decision dated June 25, 2018, OWCP accepted appellant’s duties as a city carrier as
described, but denied her occupational disease claim because the medical evidence of record failed
to establish a medical condition causally related to the accepted work event(s). It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
In a statement dated July 7, 2018, appellant described additional work duties that she
believed contributed to her bilateral foot condition. She alleged that she walked seven plus miles
five to six days a week depending on overtime scheduling, stood one to two hours a day while
sorting mail, and stood in a stationary place 45 minutes to 1 hour while delivering to apartment
boxes. Appellant also alleged that she parked to dismount to deliver single deliveries when she
felt pain from the impact of her feet on the pavement.
Appellant submitted a July 6, 2018 report from Dr. Parisa M. Morris, an attending
orthopedic surgeon. Dr. Morris noted that appellant presented for evaluation of bilateral plantar
foot pain. She further noted that appellant reported that she worked as a mail carrier which
typically involved walking seven plus miles a day over many years and now she had worsening
plantar foot pain. Dr. Morris provided examination findings and an impression of plantar fasciitis.
She recommended light-duty work.
On July 20, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the June 25, 2018 decision.
OWCP thereafter received an additional report dated July 30, 2018 from Dr. Morris
regarding appellant’s bilateral foot pain. Dr. Morris reported examination findings and reiterated
her impression of plantar fasciitis and other acquired deformities of the feet. She advised that
appellant’s continued bilateral foot pain was “likely” related to her years of service as a mail carrier
walking seven plus miles a day carrying approximately 35 pounds. Dr. Morris noted that she also
had a subtle cavus foot alignment which “could be” contributing to her lateral foot pain, but
maintained that her findings still “seemed” most consistent with plantar fasciitis although she could
not elicit pain on examination.
An April 30, 2018 return to work status medical status report from a certified physician
assistant, whose signature is illegible, indicated that appellant could work full time with
restrictions.
3

Ms. Branning, in an April 30, 2018 patient clinical summary report, reiterated her prior
diagnosis of left foot pain.
In work/school status forms dated September 19 and October 22, 2018, Dr. Morris again
advised that appellant could return to light-duty work with restrictions.
In a January 10, 2019 letter, the employing establishment continued to controvert
appellant’s claim, contending that the medical evidence submitted was insufficient to establish
causal relationship. In a February 11, 2019 letter, appellant responded that she had submitted
sufficient medical evidence to establish that her claimed bilateral foot conditions and which
necessitated work restrictions were employment related.
An OWCP hearing representative, by decision dated February 27, 2019, affirmed the
June 25, 2018 decision. She found that the additional medical evidence submitted failed to
establish causal relationship between the accepted employment factors and the diagnosed bilateral
foot conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition;6 (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed;7 and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.8

3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

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

7

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

8

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

4

The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, 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 specific employment factors identified by the employee.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a bilateral foot
condition causally related to the accepted factors of her federal employment.
Appellant submitted a series of reports from her physician, Dr. Morris. In a July 30, 2018
report, Dr. Morris provided impressions of plantar fasciitis and other acquired bilateral foot
deformities. She opined that appellant’s foot pain was “likely” related to the years she walked
seven plus miles a day carrying approximately 35 pounds while working as a mail carrier.
Dr. Morris further opined that her subtle cavus foot alignment “could be” contributing to her lateral
foot pain. She maintained that her findings still “seemed” most consistent with plantar fasciitis
although she could not elicit pain on examination. Dr. Morris did not offer a clear opinion that
appellant’s plantar fasciitis and subtle cavus foot alignment were causally related to the accepted
employment factors. The Board notes that she did not definitively relate her diagnosed medical
conditions to the accepted work exposure. As such, Dr. Morris’ opinion on causation is
speculative and equivocal. To be of probative value, a physician’s opinion on causal relationship
should be one of reasonable medical certainty. Dr. Morris’ opinion therefore lacks the specificity
and detail needed to establish appellant’s claim.10
Dr. Morris’ remaining reports are of no probative value because they did not relate
appellant’s bilateral foot diagnoses and work restrictions to the accepted employment factors.11
For the reasons stated, the Board finds that her reports are insufficient to establish appellant’s
burden of proof.
Dr. Campion, in an undated report, found that appellant had a musculoskeletal injury
resulting from prolonged walking that limited her ability to walk long distance without pain. The
Board finds that Dr. Campion’s report note fails to provide a firm medical diagnosis as the
physician only related a “musculoskeletal injury.” Dr. Campion did not diagnose a medical
condition.12 As such, this report lacks the probative value and is thus insufficient to establish the
claim.
9

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

10

C.H., Docket No. 19-0409 (issued August 5, 2019); D.P., Docket No. 18-1647 (issued March 21, 2019); P.O.,
Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).
11
See K.B., Docket No. 19-0411 (issued July 19, 2019); S.G., Docket No. 19-0041 (issued May 2, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018) (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).
12

See J.S., Docket No. 18-0726 (issued November 5, 2018); J.P., Docket No. 14-0087 (issued March 14, 2014).

5

Dr. Beville’s April 28, 2018 left foot x-ray report is also insufficient to establish causal
relationship. The Board has consistently held that diagnostic studies are of limited probative value
as they do not provide an opinion on causal relationship between the accepted employment
factor(s) and a diagnosed condition.13 Therefore Dr. Beville’s April 28, 2018 diagnostic report is
insufficient to establish appellant’s claim.
Appellant also submitted reports from several physician assistants. These reports have no
probative medical value in establishing appellant’s claim as physician assistants are not considered
“physicians” as defined under FECA.14 As such, this evidence is also insufficient to meet
appellant’s burden of proof.
On appeal counsel contends that OWCP failed to adjudicate the claim in accordance with
the proper standard of causation, to give due deference to the findings of the attending physician,
and to follow its procedure manual. He has not, however, provided any evidence to support his
arguments. As discussed above, Dr. Morris did not provide a rationalized opinion sufficient to
establish that appellant’s diagnosed bilateral foot conditions were caused or aggravated by the
accepted factors of her federal employment.
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 bilateral foot
condition causally related to the accepted factors of her federal employment.

13

See G.M., Docket No. 19-0539 (issued August 6, 2019); T.S., Docket No. 18-0150 (issued April 12, 2019); L.T.,
Docket No. 18-1603 (issued February 21, 2019).
14

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See id. at § 8102(2); 20 C.F.R. § 10.5(t); T.C., Docket No. 19-0227 (issued July 11, 2019); K.W., 59 ECAB 271, 279
(2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician assistants, and
physical therapists are not competent to render a medical opinion under FECA). See also Gloria J. McPherson, 51
ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can
only be resolved through the submission of probative medical evidence from a physician).

6

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, ALEDO POST
OFFICE, Aledo,TX, Employer
__________________________________________

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

Docket No. 21-0341
Issued: August 10, 2021

Case Submitted on the Record

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

JURISDICTION
On January 4, 2021 appellant filed a timely appeal from an August 13, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted November 28, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 13, 2020 decision, appellant submitted additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 1, 2018 appellant, then a 57-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 28, 2017 he strained the left side of his groin when
he tripped on a floor mat while in the performance of duty. He did not immediately stop work.
In a November 14, 2018 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the requested information. No response was received.
By decision dated December 20, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as he described. It noted that he had not responded to the development letter of
November 14, 2018. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
In a November 29, 2017 authorization for examination and/or treatment (Form CA-16), the
employing establishing authorized appellant to seek medical care. In Part B of the Form CA-16,
attending physician’s report, dated August 14, 2019, an unidentified healthcare provider reported
that appellant retrieved a mail tub and injured his back and left hip. Appellant was diagnosed with
lumbar sprain, lumbar radiculopathy, and left hip sprain. The healthcare provider checked a box
marked “Yes” indicating that the diagnosed conditions were caused or aggravated by the described
employment activity.
In a November 29, 2017 accident report, the postmaster indicated that appellant was
moving to the back of his long life vehicle (LLV) when he tripped over a loose/torn floor mat.
An August 2, 2018 magnetic resonance imaging (MRI) scan of the lumbar spine revealed
unilateral right spondylolysis at L5-S1, mild grade one anterior spondylolisthesis, disc desiccation
noted at L5-S1, mild grade one retrolisthesis at L1-2 and L2-3, mild right neural foraminal
narrowing at L1-2, and disc desiccation at L1-2 and L2-3. An x-ray of the left hip performed on
December 19, 2018 revealed no acute fracture, dislocation, or advanced arthritic changes.
On April 2, 2019 Dr. Theodore W. Crofford, a Board-certified orthopedist, treated
appellant for left hip discomfort/pain with a gradual onset of symptoms beginning one year ago.
Appellant reported that the pain was not related to any particular event or injury. Findings on
examination revealed mild antalgic gait and mildly positive impingement sign. Dr. Crofford
reviewed the findings of the February 7, 2019 MRI scan of the left hip. He diagnosed left hip
labral tear confirmed by MRI scan, left hip greater trochanteric bursitis, possible left sacroiliac
disease, and possible lumbar spine arthritis. Dr. Crofford performed a left greater trochanter bursa
injection. He saw appellant in follow up on May 7, 2019 who reported complete relief of his hip
symptoms for approximately three weeks after the injection. The diagnosis remained the same
and Dr. Crofford recommended physical therapy.
Dr. Rory Allen, an osteopath, treated appellant on August 14, September 4 and 25, and
October 16, 30, 2019 for injuries to appellant’s lumbar spine, left hip, and left leg. Appellant

2

reported working as a rural mail carrier and on November 28, 2017, while retrieving a tub of mail
from the back of his LLV weighing approximately 40 to 50 pounds his foot got caught on a floor
mat causing him to twist and pull his lumbar spine, left hip, and left leg. Findings on examination
of the lumbar spine revealed paraspinal tenderness, muscle spasms, decreased range of motion,
positive straight leg test, antalgic gait, sensory decreased at left L3, L4, diffuse tenderness, and
decreased range of motion of the left hip. An MRI scan of the left hip revealed full thickness
chondral delamination of the antero-superior acetabulum, chondromalacia, mild-to-moderate
tendinopathy, mild-to-moderate degenerative change at the sacroiliac joints bilaterally, mild
degenerative change of the pubic synthesis, and increased T2 signal intensity of the right pubic
bone suspicious for partial-thickness tear of the right rectus abdominis-adductor longus
aponeuroses. Dr. Allen diagnosed lumbar sprain, lumbar radiculopathy, and left hip sprain.
In a letter of causation dated August 14, 2019, Dr. Allen opined that in his professional
medical opinion appellant sustained a traumatic work-related injury while employed as a mail
handler on November 28, 2017 when appellant retrieved a tub of mail from the back of his LLV
and his left foot caught the floor mat causing him to twist and pull the lumbar spine, left hip, and
left leg. He described a compression and rotational force to both the lumbar spine and the left hip
and left leg directly causing the diagnosed conditions. In duty status reports (Form CA-17) dated
August 14, September 25, and October 16, 2019, Dr. Allen noted clinical findings of decreased
range of motion, weakness, and neuropathy and noted the diagnoses due to injury was sprain of
the ligaments of the lumbar spine, radiculopathy, and sprain of the left hip.
On October 31, 2019 appellant requested reconsideration. He explained that he was
attempting to retrieve mail from the back of his LLV when he tripped on the floor mat and hit his
leg. Appellant promptly reported the injury to his supervisor and asserts that he delayed filing his
claim because he was informed that appellant would be disciplined and would lose his job. In an
undated routing slip, appellant indicated that on November 28, 2017 he was attempting to get a
tub of mail from the back of the LLV when his left “foot got tangled up in the mat” causing him
to twist his left leg. In an additional undated statement, appellant reported that on November 28,
2017 while at work he was attempting to move a tub of mail from the back of his LLV to the front
and his left foot became tangled in the torn floor mat causing him to injury his left leg.
On November 12 and December 13, 2019 Dr. Allen treated appellant, noting a history of
injury and diagnosed lumbar sprain, lumbar radiculopathy, and left hip sprain. He continued in a
limited-duty work status. In duty status reports (Form CA-17) dated November 12 and
December 13, 2019, Dr. Allen noted the diagnoses due to injury was sprain of the ligaments of the
lumbar spine, radiculopathy, and sprain of the left hip and returned appellant to work for four hours
a day with restrictions.
By decision dated January 16, 2020, OWCP denied modification of the decision dated
December 20, 2018.
Appellant was evaluated by Dr. Mike Martinez, a Board-certified anesthesiologist, for leftsided lower extremity pain and left-sided hip pain. Dr. Martinez performed a left-sided SI joint
injection on August 9, 2018, a medial branch nerve block at left L4-5 and L5-S1 on September 14,
2018, and a transforaminal epidural steroid injection at left L2-3 on December 31, 2018. On
January 10, 2019 he treated appellant post procedure and appellant reported no pain relief.

3

Appellant reported an onset of symptoms in May 2018, which felt like a pulled back muscle which
progressed to his left hip. Dr. Martinez diagnosed lumbar radiculopathy, lumbar spondylosis,
sacroiliitis, chronic pain, left hip pain, long term drug therapy, and trochanteric bursitis of the left
hip.
Rachel Holland, a physician assistant, treated appellant on August 23 and December 18,
2018, noting that his symptoms began in May 2018 and felt like he pulled a back muscle and later
noticed pain in his hip. She diagnosed lumbar spondylosis, sacroiliitis, chronic pain, left hip pain
and long-term drug therapy.
On February 18, 2019 Jeff Martz, a physician assistant, treated appellant for recurring left
lumbar and left hip pain beginning May 2018. He diagnosed lumbar radiculopathy, lumbar
spondylosis, sacroiliitis, chronic pain, left hip pain, and trochanteric bursitis of the left hip.
On February 28, 2019 Dr. Jon-Paul Harmer, a Board-certified anesthesiologist, evaluated
appellant for left-sided lower extremity pain. He performed radiofrequency of medial branch
nerves bilateral at L4-5 and L5-S1. Dr. Harmer diagnosed lumbar facet syndrome at L3, L4, and
L5, lumbar spondylosis without myelopathy at L4-5 and L5-S1.
Dr. Allen treated appellant in follow up on January 13 and 22, March 2, April 6, May 6,
and June 8, 2020 for lumbar, left leg, and left hip work injuries. He noted a history of injury and
diagnosed lumbar sprain, lumbar radiculopathy, and left hip sprain. An electromyogram (EMG)
and nerve conduction velocity (NCV) study revealed left-sided peroneal motor neuropathy across
the knee, bilateral tibial motor neuropathy, left-sided sural sensory neuropathy, and left-sided
saphenous sensory neuropathy. Dr. Allen noted that appellant could work limited duty four hours
per day. On January 22, 20203 he opined that, due to the sustained work injuries and delays with
the insurance carrier, appellant will not likely return to work full duty and will likely remain limited
duty with a 15-pound lifting restriction. In reports dated June 8 and July 8 and 29, 2020, Dr. Allen
opined that, in his professional medical opinion, appellant sustained a work-related injury while
employed as a rural mail handler on November 28, 2017. He diagnosed lumbar sprain, lumbar
radiculopathy, and left hip sprain.
In duty status reports (Form CA-17) dated January 13, February 3, March 2, April 6,
May 6, June 8, and July 8, 2020, Dr. Allen noted clinical findings of decreased range of motion,
weakness, and neuropathy and noted the diagnoses due to injury was sprain of the ligaments of the
lumbar spine, radiculopathy, and sprain of the left hip.
A computerized tomography (CT) scan of the lumbar spine dated January 15, 2020
revealed many metallic foreign bodies from a gunshot injury at L2 and L3, L1-2 and L2-3
retrolisthesis, broad disc protrusion/herniation at L2-3 with mild thecal sac stenosis, L3-4 broad
disc protrusion/herniation and mild foraminal narrowing, L4-5 broad disc protrusion/herniation
with mild thecal sac stenosis and mild bilateral neural foraminal narrowing, L5-S1grade one

3
Dr. Allen submitted an amended January 22, 2020 progress note and disability narrative dated February 3, 2020,
which appears to be the same report.

4

anterolisthesis with right L5 pars interarticularis deft, disc protrusion/herniation, mild thecal sac
stenosis, and mild bilateral neural foraminal narrowing.
In a January 22, 2020 statement, appellant provided a history of injury to his left leg, back,
and hip that occurred on November 28, 2017. He noted that he immediately reported his injury to
his supervisor, D.K., who informed him that a disciplinary hearing would be scheduled. Appellant
feared that his 17-year career with the employing establishment might be in jeopardy if he pursued
a claim. He indicated that his symptoms continued and, after a month, he sought treatment through
his private insurance. After several months with no significant improvement, appellant was
referred to a pain management clinic and then for physical therapy. He continued to work
restricted duty.
On May 15, 2020 appellant requested reconsideration.
By decision dated August 13, 2020, OWCP modified the January 16, 2020 decision,
finding that appellant had established that the employment incident occurred as alleged, but
affirmed the denial of the claim, further finding that the medical evidence of record was insufficient
to establish a causal relationship between his diagnosed conditions and the accepted November 28,
2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation 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 first must be determined whether fact of injury has been established. 8
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment

4

Supra note 1.

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (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

K.M., Docket No. 15-1660 (issued September 16, 2016).

8

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

5

incident that allegedly occurred.9 The second component is whether the employment incident
caused a personal injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.13
In a case in which 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.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted November 28, 2017 employment incident.
Dr. Allen treated appellant August 14, September 4 and 25, October 16 and 30,
November 12, and December 13, 2019, and January 13 and 22, March 2, April 6, May 6, and
June 8, 2020 and diagnosed lumbar sprain, lumbar radiculopathy, and left hip sprain. Appellant
reported working as a rural mail carrier and on November 28, 2017, while retrieving a tub of mail
weighing approximately 40 to 50 pounds, his foot got caught on a floor mat causing him to twist
and pull his lumbar spine, left hip, and left leg. However, these generalized statements do not
establish causal relationship because they merely repeat his allegations and are unsupported by
adequate medical rationale explaining how the accepted November 28, 2017 employment incident
actually caused a diagnosed medical condition.15 The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how an employment activity could have caused or aggravated a medical condition.16 Thus, these

9

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

T.H., supra note 8; Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
15

See J.B., Docket No. 18-1006 (issued May 3, 2019).

16

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

6

reports are of limited probative value and insufficient to establish that appellant sustained an
employment-related injury.
In a letter of causation dated August 14, 2019, Dr. Allen opined that appellant sustained a
traumatic work-related injury while employed as a mail handler on November 28, 2017 when
appellant retrieved a tub of mail from the back of his LLV and his left foot caught the floor mat
causing him to twist and pull the lumbar spine, left hip, and left leg. He described a compression
and rotational force to both the lumbar spine and the left hip and left leg directly causing the
diagnosed conditions. Similarly, on January 22, June 8, and July 8 and 29, 2020, Dr. Allen opined
that appellant sustained a work-related injury while employed as a rural mail handler on
November 28, 2017. He diagnosed lumbar sprain, lumbar radiculopathy, and left hip sprain.
Dr. Allen, however, did not provide medical rationale supporting his conclusory opinion. A
medical opinion must explain how the implicated employment factors physiologically caused,
contributed to, or aggravated the specific diagnosed conditions.17 Without this explanation,
Dr. Allen’s reports are insufficient to meet appellant’s burden of proof to establish his claim.18
Appellant also submitted Form CA-17 reports from Dr. Allen dated August 14,
September 25, October 16, November 12, and December 13, 2019, and January 13, February 3,
March 2, April 6, May 6, June 8, and July 8, 2020. In these reports, Dr. Allen noted the diagnoses
due to injury was sprain of the ligaments of the lumbar spine, radiculopathy, and sprain of the left
hip. He, however, did not offer an opinion as to whether appellant’s diagnosed conditions were
causally related to the employment incident on November 28, 2017 in any of these Form CA-17
reports. 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.19
Accordingly, these reports are insufficient to establish appellant’s claim.
Appellant was evaluated by Dr. Martinez who performed a left-sided SI joint injection on
August 9, 2018, a medial branch nerve block at left L4-5 and L5-S1 on September 14, 2018, and
a transforaminal epidural steroid injection at left L2-3 on December 31, 2018. In a January 10,
2019 note, Dr. Martinez reported an onset of symptoms in May 2018, which felt like a pulled back
muscle that progressed to his left hip. He diagnosed lumbar radiculopathy, lumbar spondylosis,
sacroiliitis, chronic pain, left hip pain, long-term drug therapy, and trochanteric bursitis of the left
hip. In these notes, Dr. Martinez did not offer an opinion as to whether a diagnosed condition was
causally related to the accepted employment incident on November 28, 2017. The Board has held
that medical evidence that does not include an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.20 These notes from
Dr. Martinez are, therefore, insufficient to establish appellant’s claim.
On April 2 and May 7, 2019 Dr. Crofford treated appellant for left hip discomfort/pain with
a gradual onset of symptoms beginning one year ago. Appellant indicated that the pain was not
17

K.G., Docket No. 18-1598 (issued January 7, 2020).

18

Id.

19

L.B., Docket No. 19-1907 (issued August 14, 2020); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

Id.

7

related to any particular event or injury. Dr. Crofford diagnosed left hip labral tear confirmed by
MRI scans, left hip greater trochanteric bursitis, possible left sacroiliac disease, and possible
lumbar spine arthritis. However, these reports do not support causal relationship as neither
appellant nor his physician attribute the injury to the November 28, 2017 work incident.
In a February 28, 2019 report, Dr. Harmer diagnosed lumbar facet syndrome at L3, L4, and
L5, lumbar spondylosis without myelopathy at L4-5 and L5-S1 and performed radiofrequency of
medial branch nerves bilateral at L4-5 and L5-S1. However, he did not render an opinion on
causation. 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.21
Appellant submitted treatment notes from physician assistants, Ms. Holland and
Mr. Martz, dated August 23 and December 18, 2018 and February 18 and April 3, 2019,
respectively. Certain healthcare providers such as physician assistants, however, are not
considered physicians as defined under FECA.22 Consequently, these reports will not suffice for
purposes of establishing entitlement to FECA benefits.23
In a November 29, 2017 authorization for examination and/or treatment (Form CA-16), the
employing establishing authorized appellant to seek medical care. Appellant submitted Part B of
the Form CA-16, attending physician’s report, dated August 14, 2019, which was not signed. The
Board has held that a medical note containing an illegible signature or which is unsigned has no
probative value, as it is not established that the author is a physician.24
The record also contains a lumbar spine MRI scan, a CT scan of the lumbar spine, and xrays of the lumbar spine and left hip, as interpreted by diagnostic radiologists and an EMG/NCV.
The Board has held that diagnostic tests, standing alone, lack probative value on the issue of causal
relationship as they do not address whether the employment incident caused a diagnosed
condition.25
As appellant has not submitted rationalized medical evidence establishing that his injury is
causally related to the accepted November 28, 2017 work accident, the Board finds that he has not
met his burden of proof to establish his claim.

21

Id.

22

See S.K., Docket No. 20-1049 (issued June 28, 2021); S.E., Docket No. 08-2214 (issued May 6, 2009).

23
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 14 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); see also V.W., Docket No. 20-0693 (issued June 2, 2021).
24

See Z.G., 19-0967 (issued October 21, 2019); see R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB
1568(1982) (where the Board held that a medical report may not be considered as probative medical evidence if there
is no indication that the person completing the report qualifies as a “physician” as defined in FECA).
25

V.Y., Docket No. 18-0610 (issued March 6, 2020).

8

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 his burden of proof to establish a medical
condition causally related to the accepted November 28, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.26
Issued: August 10, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

26

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 may
constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. The
form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
INDEPENDENCE ANNEX, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 19-0634
Issued: September 19, 2019

Case Submitted on the Record

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

JURISDICTION
On January 30, 2019 appellant filed a timely appeal from a January 7, 2019 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 following the January 7, 2019 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish that acceptance of
her claim should be expanded to include binaural hearing loss causally related to her accepted
August 12, 2017 employment injury.
FACTUAL HISTORY
On August 15, 2017 appellant, then a 39-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on August 12, 2017, she injured her right ankle, right hip, and right
shoulder when she fell, striking the side of her vehicle, while stepping out of her vehicle onto
uneven pavement while in the performance of duty. She stopped work on August 13, 2017.
On August 12, 2017 Dr. Arthur A. Olyai, an osteopathic physician Board-certified in
emergency medicine, examined appellant immediately after her alleged employment incident. He
noted that she complained of right ankle pain after falling while at work. Appellant related that
the pain radiated from her ankle, all the way up into her head, however she also indicated that she
did not hit her head, and that this was not a syncopal event. He diagnosed ankle sprain.
In a report dated August 15, 2017, Sir Wesley Funchess Jr., a physician assistant, noted
appellant’s hip and foot complaints. He related appellant’s history of injury as: “this past Saturday
she stepped out of her work truck and fell due to new construction on the street.”
In a supplemental statement dated August 15, 2017, appellant indicated that she stepped
out of her vehicle and onto uneven pavement, which caused her to twist her ankle and hit the inside
of her vehicle with her hip and shoulder.
On September 6, 2017 Dr. Everlyn L. Hall-Baker, Board-certified in family practice,
reported that appellant was previously seen by a physician assistant and was informed of right
shoulder, right hip, and right foot complaints arising from a fall on August 12, 2017. She related
appellant’s history of injury as: “Patient stepped from vehicle to pavement and ankle gave way
and patient fell backwards and body hit inside of door or postable vehicle.”
By decision dated October 3, 2017, OWCP accepted appellant’s claim for right ankle
sprain.
OWCP subsequently received an October 3, 2017 report from Dr. Jason Silva, a Boardcertified orthopedic surgeon. He related that appellant was seen for right hip and shoulder pain
due to an August 12, 2017 injury. Dr. Silva noted: “On August 12, 2017 she fell getting out of
a[n] [employing establishment] truck. Her ankle twisted and she fell back in the truck hitting her
shoulder and hip.”
In a report dated October 27, 2017, Larry P. Lease, a physician assistant, diagnosed lateral
vestibular neuronitis. He noted that appellant had a three-week history of intermittent vertigo and
a feeling of persistent imbalance, for which she had spent several days in a hospital for “stroke
protocol.”

2

In a statement dated December 30, 2017, appellant requested that the acceptance of her
claim be expanded to include injuries to her right hip, right shoulder, back, and inner ear as a result
of the accepted August 12, 2017 employment injury. She related that she hit her head inside her
vehicle which caused inner ear damage resulting in severe and “permanent” vertigo, and binaural
hearing loss.
On January 11, 2018 OWCP expanded acceptance of appellant’s claim to include sprain of
right rotator cuff capsule. Appellant continued to seek medical treatment for her accepted
conditions.
In a letter dated February 16, 2018, appellant indicated that, due to her inner ear damage,
hearing loss, severe vertigo, and migraines, she was unable to drive her mail vehicle and requested
reasonable accommodations from the employing establishment.3
In a report dated September 25, 2018, Dr. Karen E. Daniels-Mitchell, a Board-certified
family practitioner, examined appellant and diagnosed “bilateral hearing loss,” migraines, tinnitus,
and vertigo, and referred appellant to an otolaryngologist for further evaluation.
In a letter dated September 28, 2018, appellant requested that her accepted medical
conditions be expanded to include binaural hearing loss, tinnitus, vertigo, migraines, “vision
issues,” sinus tachycardia, elevated blood pressure, paresthesia, and depression.
In a development letter dated November 29, 2018, OWCP advised appellant that it was in
receipt of her request for alleged “consequential” injuries. It informed her that the evidence
submitted was insufficient and requested additional medical evidence regarding her “mental health
medical conditions and sensorineural hearing loss.” This evidence was to include a rationalized
medical report from her treating physician explaining causal relationship between her alleged
conditions and the accepted employment injury. OWCP afforded appellant 30 days to submit the
necessary evidence.
In a report dated December 18, 2018, Dr. William H. Roberts, a Board-certified
otolaryngologist, evaluated appellant who complained of binaural hearing loss. He noted that
appellant related that she was in an automobile accident on August 12, 2017 and struck her head
on the metal portion of her vehicle. Dr. Roberts indicated that she immediately noticed the onset
of hearing loss with tinnitus, and subsequently had episodes of vertigo with headaches. He
reviewed an audiogram from October 15, 2018, and diagnosed “bilateral” sensorineural hearing
loss. Dr. Roberts opined that there was causal relationship between appellant’s hearing loss and
her trauma.
By decision dated January 7, 2019, OWCP denied expansion of the acceptance of
appellant’s claim to include binaural hearing loss, finding that the evidence of record did not
demonstrate that the employment-related incident occurred as she described. It noted that

3
By decision dated April 12, 2018, OWCP terminated appellant’s wage-loss compensation as her disability due to
the accepted employment injury had ceased. The claim remained open for medical benefits.

3

appellant had not mentioned a head injury when she first filed her claim or in her initial narrative
statement, and that the medical evidence did not support a head injury.
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.4 To establish causal relationship between the condition
as well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence.5 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 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.7
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.8 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons. The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it.9
ANALYSIS
The Board finds that this case is not in posture for decision.
In her initial CA-1 claim form, appellant alleged that she injured her right ankle, right hip,
and right shoulder when she fell, striking the side of her vehicle, while stepping out of her vehicle
onto uneven pavement. By decision dated October 3, 2017, OWCP accepted that appellant’s
August 12, 2017 employment-related fall resulted in a right ankle sprain. It later expanded the
acceptance of the claim to include sprain of right rotator cuff capsule. Appellant subsequently
requested that her accepted conditions be expanded to include binaural hearing loss, tinnitus,
4

V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

5
T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
6

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

7

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

8

5 U.S.C. § 8124(a).

9

L.M., Docket No. 13-2017 (issued February 21, 2014); D.E., Docket No. 13-1327 (issued January 8, 2014); L.C.,
Docket No. 12-0978 (issued October 26, 2012); Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances
Chapter 2.1400.5 (February 2013) (all decisions should contain findings of fact sufficient to identify the benefit being
denied and the reason for the disallowance).

4

vertigo, migraines, “vision issues,” sinus tachycardia, elevated blood pressure, paresthesia, and
depression. In a development letter dated November 29, 2018, OWCP informed appellant that the
evidence submitted was insufficient to establish that she sustained additional “mental health
medical conditions and sensorineural hearing loss” causally related to the August 12, 2017
employment injury. By decision dated January 7, 2019, OWCP denied expansion of the
acceptance of appellant’s claim only with regard to binaural hearing loss, finding that the evidence
of record did not demonstrate that the employment-related incident occurred as she described.
The Board notes that OWCP treated appellant’s request to expand the accepted conditions
as a claim for a new injury when it found that the factual and medical evidence did not support a
head injury. However, OWCP had already accepted that the August 12, 2017 fall occurred as
alleged when it initially accepted a right ankle sprain. Where an employee claims that an additional
condition not accepted by OWCP was due to the employment injury, the only burden on appellant
is to establish that the additional condition is causally related to the employment injury.10
As noted above, 5 U.S.C. § 8124(a) provides: “[OWCP] shall determine and make a
finding of facts and make an award for or against payment of compensation.” Also, 20 C.F.R.
§ 10.126 provides in pertinent part that the final decision of OWCP shall contain findings of fact
and a statement of reasons. It has a responsibility to set forth findings of fact and a clear statement
of reasons explaining the disposition so that the claimant can understand the basis for the decision,
as well as the precise defect and the evidence needed to overcome the denial of his traumatic injury
claim.
The Board finds that OWCP failed to make findings of fact and provide a statement of
reasons regarding whether the medical evidence of record established causal relationship between
appellant’s accepted August 12, 2017 employment injury and her diagnosed binaural hearing loss.
The Board further finds that OWCP failed to make findings of fact and provide a statement of
reasons regarding whether appellant’s claim should be expanded to include the additional
requested conditions. Thus, appellant was unable to understand the precise defect of the claim and
the kind of evidence which would overcome it.
The case shall therefore be remanded to OWCP for a proper decision, to include findings
of fact and a clear and precise statement of reasons as to whether appellant’s claim should be
expanded to include additional conditions. Following further development as OWCP deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

Supra note 4.

5

ORDER
IT IS HEREBY ORDERED THAT the January 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 19, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 08-341
Issued: May 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 13, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 16, 2007 nonmerit decision denying his reconsideration
request. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this
nonmerit decision. The last merit decision of record was the Office’s May 9, 2005 decision
denying appellant’s emotional condition claim. Because more than one year has elapsed
between the last merit decision and the filing of this appeal on November 13, 2007, the Board
lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on August 2, 2006 in
which it affirmed the May 9, 2005 decision of the Office on the grounds that appellant had not met
his burden of proof to show that he sustained an employment-related emotional condition.2 The
Board affirmed the Office’s finding that appellant had established an employment factor in the
form of his reaction to pain from his accepted right shoulder injuries.3 The Board further found
that the medical evidence, including the reports of Dr. Keith L. Rogers, an attending clinical
psychologist, did not show that appellant sustained an emotional condition due to the accepted
employment factor.4 The facts and circumstances of the case up to that point are set forth in the
Board’s prior decision and are incorporated herein by reference.
In a July 31, 2007 letter received by the Office on August 1, 2007, appellant, through his
attorney, requested reconsideration of his claim. Appellant submitted a September 1, 2006 report
in which Dr. Rogers stated:
“I have seen [appellant] in Mental Health Clinic of the [Veterans Affairs] Puget
Sound for a number of years. He suffers from recurrent major depressive disorder
and he takes medication for this. He also suffers from chronic pain resulting from
an on-the-job shoulder injury in 1996. It is widely and extensively recognized
that chronic pain conditions contribute to, cause and exacerbate depressive
conditions. This is the case for [appellant]; his chronic pain no doubt contributed
to his major depression which persists to the present.”
In an August 16, 2007 decision, the Office denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).5

2

Docket No. 06-806 (issued August 2, 2006).

3

On November 5, 2003 appellant, then a 52-year-old letter box mechanic, filed an occupational disease claim
alleging that he sustained an emotional condition due to several incidents and conditions at work. The Board
determined that appellant did not establish any employment factors other than the one relating to his employmentrelated right shoulder injuries.
4

In an October 21, 2003 report, Dr. Rogers stated, “We are aware of your employment with the United States
Postal Service and have some knowledge of your assigned duties as a letter box mechanic. It is our opinion, your
injuries and the difficulty performing your duties in the context of these injuries, contributed to developing
depression.” In a March 21, 2005 report, Dr. Rogers stated, “We are aware of your employment with the United
States Postal Service and have some knowledge of your assigned duties as a letter box mechanic…. As you relayed
to us, you injured your right arm/shoulder initially in 1993 with reinjury of the same extremity in October 1996 and
were subsequently diagnosed with depression in 1997 at Group Health. It is our opinion that the results of your
physical injuries and the difficulty performing your duties in the context of these injuries, contributed to developing
depression.”
5

Appellant submitted additional evidence after the Office’s August 16, 2007 decision, but the Board cannot consider
such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,6 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.7 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.8 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.9 The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record does not constitute a basis for reopening
a case.10
ANALYSIS
In support of his timely August 1, 2007 reconsideration request,11 appellant submitted a
September 1, 2006 report of Dr. Rogers, an attending clinical psychologist. However, the
submission of this report would not require reopening of appellant’s claim as this report is similar
to the previously submitted reports of Dr. Rogers, dated October 21, 2003 and March 21, 2005.12
In each of these brief reports, Dr. Rogers indicated that pain from appellant’s employment-related
right shoulder condition contributed to his depression. Dr. Rogers’ September 1, 2006 report did
not provide any significantly greater level of discussion or explanation for this opinion than his
prior reports.
Appellant has not established that the Office improperly denied his request for further
review of the merits of its May 9, 2005 decision under section 8128(a) of the Act, because the
evidence and argument he submitted did not to show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
6

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.606(b)(2).
8

20 C.F.R. § 10.607(a). According to Office procedure, the one-year period for requesting reconsideration begins
on the date of the original Office decision, but the right to reconsideration within one year also accompanies any
subsequent merit decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b (January 2004).
9

20 C.F.R. § 10.608(b).

10

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

11

Appellant’s request was within one year of the Board’s August 2, 2006 merit decision and therefore would be
considered timely. See supra note 8.
12

See supra note 10 and accompanying text.

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by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 16, 2007 decision is affirmed.
Issued: May 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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