United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eatontown, NJ, Employer
__________________________________________

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

Docket No. 14-1712
Issued: June 9, 2016

Case Submitted on the Record

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

JURISDICTION
On August 26, 2014 appellant, through counsel, filed a timely appeal from May 9 and
July 15, 2014 merit decisions 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 appellant met her burden of proof to establish that she
sustained an aggravation of her left elbow condition causally related to factors of her federal
employment between June 10 and 13, 2013; and (2) whether OWCP properly terminated
appellant’s wage-loss compensation under 5 U.S.C. § 8106(c) for abandonment of suitable work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 4, 2011 appellant, then a 40-year-old rural carrier, filed a recurrence claim
(Form CA-2a) alleging that upon returning to work she experienced slight pain, tightness,
numbness, and swelling in and around her elbow after picking up trays at the end of her route on
April 5, 2011. By letter dated May 23, 2011, OWCP informed appellant that it had
administratively converted this claim for recurrence to a claim for a new traumatic injury
because the circumstances described on her claim form indicated that she had experienced a new
injury, rather than a spontaneous worsening of her work-related condition without new injury or
exposure to work factors. The new claim was opened under file number xxxxxx726. Appellant
stopped work on April 6, 2011. OWCP accepted her claim for left lateral epicondylitis on
July 1, 2011.
She underwent a left lateral epicondyle release surgical procedure on
January 27, 2012.
In a functional capacity evaluation dated November 2, 2011, physical therapists
recommended that appellant had the ability to perform light work, including occasional lifting
and working up to 20 pounds, with precautions on activities involving her left upper extremity.
Additional recommended restrictions included no reaching above shoulder level; allowed
changes to her duties involving her left upper extremity during prolonged or repetitive activities
for durations longer than 10 minutes including pushing/pulling, lifting, gripping/grasping,
reaching, typing, and pinching; and use of a step stool to keep her work load at shoulder level or
below.
In reports dated August 28, 2012, Dr. Franklin Chen, a Board-certified orthopedist, stated
that appellant could return to work with permanent light-duty restrictions as outlined in the
functional capacity evaluation of November 2, 2011.
On April 4, 2013 the employing establishment made an offer of modified assignment
(limited duty) for a position as a modified clerk. The duties of the assignment were described as
“duties of a sales and service associate” (or “window job”) for 8 hours per day. The physical
requirements of the modified assignment were standing for up to eight hours daily; lifting 20
pounds occasionally for up to 2.6 hours daily; pushing, pulling, and gripping occasionally on the
left for up to 2.6 hours daily; and reaching occasionally to shoulder level on the left side for up to
2.6 hours daily. Appellant accepted this modified job offer on April 30, 2013. She resumed fulltime, limited duty on May 28, 2013.
In a report dated June 17, 2013, a vocational rehabilitation counselor noted that, on
June 11, 2013, appellant informed her she had been sent home after 3.5 hours because her
manager had not issued a notification of personnel action form indicating a change in craft, and
that she could therefore not work the “window job.” The form still had not been issued as of
June 13, 2013. On June 14, 2013 appellant reported that her supervisor had asked her to work
outside of her restrictions. The counselor contacted this supervisor on the same date, who
contended that she had not asked appellant to work outside of her restrictions, that she was trying
to accommodate appellant, and that she advised appellant to go home if she could not work. The
rehabilitation counselor advised appellant to report for work on her next scheduled workday and
to show her supervisor her job offer if she is asked to do anything outside of her restrictions.

2

In an attending physician’s report dated June 18, 2013, Dr. Chen noted that appellant was
currently unable to perform the modified duty activities of her position. He recommended an
independent medical examination. In a narrative report of the same date, Dr. Chen noted that
appellant came to visit for a follow up of “left elbow lateral epicondylitis s/p release on
January 27, 2012” and that “the patient reports since returning to work with the light-duty
restrictions she has had increased left elbow pain with recurring swelling. She was performing
repetitive activities at work. The patient describes her pain as aching with associated spasms to
the left upper arm which is worse with her work activities.” He opined that appellant was unable
to perform modified duty and that “it is within medical probability that the current orthopedic
complaints are causally related to the patient’s work injury.”
By letter dated June 25, 2013, Dr. Chen noted that “Based on the exam[ination] of the
patient, there is no objective finding that would [necessarily] prohibit her from working with the
outlined restrictions. She has subjective complaints of spasm, fatigue and pain with those
activities which she feels makes it unable for her to perform such activities. I received her
[impartial medical examination] for a second opinion and I have no other treatment
recommendations and feel that she is at [m]aximum medical improvement.”
In a record of a telephone conversation dated July 11, 2013, the employing establishment
confirmed that appellant’s modified job offer was still available.
By letter dated July 11, 2013, OWCP stated that it had reviewed the modified job offer of
April 4, 2013 and found it suitable in accordance with her medical limitations based on the report
of Dr. Chen dated August 28, 2012. It noted that she returned to work on May 28, 2013, but
stopped on June 19, 2013, and that Dr. Chen had advised by letter dated June 25, 2013 that there
was no objective finding that would prohibit her from working the limited-duty position. OWCP
afforded appellant 30 days either to submit a statement explaining why she had stopped work or
to return to work.
In reports dated July 9, 2013, Dr. Mark A. Filippone, Board-certified in physical
medicine and rehabilitation, noted that appellant was totally disabled beginning June 13, 2013.
He diagnosed her with a status post fracture of the left proximal radius at the elbow; suspect
reflex sympathetic dystrophy of the left upper extremity; and internal derangement of the left
shoulder. Dr. Filippone examined her, noting pain on palpation over the medial more than the
lateral left humeral epicondyle; diminished pinprick sensations; no definite motor deficits of the
abductor pollicis brevis, ulnar nerve intrinsics, extensor indicis proprius, or extensor halluces
longus; and pain on reaching from above and behind from below with her left arm. He stated
that his diagnoses were directly and solely the result of a slip and fall accident at work.
In a report dated July 25, 2013, Dr. Filippone examined the results of an
electromyography/nerve conduction velocity (EMG/NCV) study, and diagnosed appellant with
left C5-6 cervical radiculopathy and bilateral carpal tunnel syndrome, worse on the left. He
noted that these diagnoses were directly and solely the result of injuries sustained while working
for the employing establishment.
On July 31, 2013 appellant filed a recurrence claim (Form CA-2a) alleging that on
June 13, 2013, she was filling boxes with mail in the post office box section for approximately 2

3

hours when sharp pains began to radiate up and down her left arm. She noted that after returning
to work following the original injury of April 5, 2011, she was put on permanent restrictions and
then moved to the position of a modified window clerk. A supervisor noted that the duty alleged
to have caused her injury was within her restrictions.
By letter dated August 1, 2013, OWCP informed appellant that it had administratively
converted this claim for recurrence to a claim for traumatic injury because the circumstances
described on her claim form indicated that she had experienced a new injury, rather than a
spontaneous worsening of her work-related condition without new injury or exposure to work
factors. The new claim was opened under file number xxxxxx401.
By letter dated August 12, 2013, OWCP informed appellant that the evidence of record
was insufficient to support her claim for compensation under file number xxxxxx401. It
requested that she respond to a questionnaire and afforded her 30 days to submit additional
evidence.
The employing establishment challenged appellant’s claim by letter dated
August 23, 2013. It stated that appellant was assigned to duties within her limitations and that
she was given mainly post office box duties. The employing establishment noted that the duties
in that capacity were to case letters and flats, which were ounces in weight. It contended that
these duties would not have caused her to have the type of injury that she claims, and stated that
she only worked minimal hours per day. The employing establishment also noted that her injury
occurred over a period of time, from May 28 through June 13, 2013.
On August 28, 2013 appellant responded to OWCP’s inquiries. She stated that on
June 13, 2013, she was working in the post office box section of the employing establishment
when she noticed her left arm starting to swell and then experienced sharp shooting pains from
her elbow radiating up to her shoulder and down to her fingertips. Appellant noted that before
this injury, she had a slip and fall on the job while delivering mail on January 4, 2011, which
resulted in a fractured radius and constant pain of her left arm and shoulder. She noted that she
returned to work on March 26, 2011, which was diagnosed by Dr. Chen as lateral epicondylitis.
Appellant stated that on April 4, 2013 she was given a modified job offer as a sales and service
associate, and that she began window training on May 28, 2013. She noted that up until the date
of injury she continued to have pain, swelling, numbness, and tingling of her left arm. Appellant
stated that she was claiming a traumatic injury due to the stress and strain of the job functions
she performed.
In a narrative report dated August 30, 2013, Dr. Filippone reported that appellant
informed him that on April 5, 2011 she slipped and fell landing on her flexed left elbow and
fractured her proximal left radial bone, requiring surgery on January 27, 2012. He noted that she
continued to be symptomatic for left lateral humeral epicondylitis. Dr. Filippone examined
appellant but did not make findings on examination regarding her left upper extremity. He
concluded that she was totally disabled. Dr. Filippone diagnosed appellant with left
epicondylitis, status post fracture of the left proximal radius at the elbow, and internal
derangement of the left shoulder. He opined that all of appellant’s abnormalities were directly
and solely the result of the injury of April 5, 2011.

4

In a decision dated September 17, 2013, OWCP denied appellant’s claim for
compensation for traumatic injury under file number xxxxxx401. It reviewed evidence under
both this file number and file number xxxxxx726 in the adjudication of her claim. OWCP found
that appellant had not submitted a diagnosis in connection with the event of June 13, 2013,
noting that her physicians did not describe this incident and did not indicate that her diagnosis of
lateral epicondylitis had been caused or aggravated by this incident, but instead indicated that it
had been caused by the injuries of January 4 and April 5, 2011. OWCP accepted that appellant
was a federal civilian employee who filed a timely claim and that the evidence supported that the
incident occurred as described.
In a decision dated September 17, 2013, OWCP determined that appellant’s reasons for
abandonment of her position were not valid. It afforded her a period of 15 additional days to
report to her position.
On September 23, 2013 appellant, through counsel, requested a hearing before an OWCP
hearing representative on the issue of her claim for a June 13, 2013 traumatic injury.
In an attending physician’s report dated September 27, 2013, Dr. Filippone noted that
appellant continued to be totally disabled and that she needed a magnetic resonance imaging
(MRI) scan of her left shoulder.
By decision dated November 1, 2013, OWCP terminated appellant’s wage-loss and
schedule award benefits as she abandoned suitable employment upon her failure to report to
duty.
On November 8, 2013 appellant, through counsel, requested a hearing before an OWCP
hearing representative on the issue of her abandonment of suitable work.
By letter dated November 11, 2013, OWCP referred appellant to Dr. Kenneth Heist, a
Board-certified orthopedic surgeon, for a second opinion evaluation. It requested an opinion on
whether appellant continued to suffer disability as a result of her injury of April 5, 2011, whether
appellant was capable of returning to her job, and any recommended work restrictions.
In a report dated November 25, 2013, Dr. Heist noted that appellant began training in
May 2013 to be a window clerk, but that occupation was not available, and so she was “casing
mail” when her symptoms reoccurred. He examined appellant and found that her “current
restrictions, or disability, are directly related to the job injury of April 5, 2011.” Dr. Heist noted
that appellant had tenderness over the elbow joint and restriction of motion of the left elbow, and
that due to her symptoms she was unable to perform repetitive tasks or lift heavy articles. He
noted that appellant was not capable of performing her job as a letter carrier, but that she was
capable of working a full day in a less strenuous position such as a light-duty window clerk.
Dr. Heist reviewed a functional capacity evaluation dated January 7, 2014, and noted that its
conclusion that appellant was capable of performing light-duty work was congruent with his
evaluation.2 He recommended work restrictions of no more than two hours per day of pushing,
2

While Dr. Heist stated that his report was signed on November 25, 2013, the evaluation of a January 7, 2014
functional capacity evaluation in the body of the report reveals that Dr. Heist composed the report at a later date.

5

pulling, or lifting per day of over 20 pounds; no more than two hours per day of repetitive
movements involving the wrists; no more than one hour per day of repetitive movements
involving the elbow; and breaks of five minutes every hour.
In a functional capacity evaluation dated January 7, 2014, a physical therapist found that
appellant was capable of working a full eight-hour workday on light duty.
On February 4, 2014 Dr. Filippone noted that he had discussed the events of June 10
through 13, 2013 with appellant. Appellant told him that on June 10, 2013, her supervisor
advised appellant that because there was no Notification of Personnel Action form showing her
new position she could not give her a cash drawer or have her work the front window. She was
brought to the post office box section of the office and told to fill the boxes with mail and flyers.
After two hours of performing this duty, she felt sharp shooting pains along with numbness and
tingling about her left arm and fingers. Appellant was given a short break to rest and sent home.
She reported to duty the next day, where she once again filled post office boxes and felt pain in
her left arm with swelling. Appellant stated that she was then sent to the parcel area, where she
lifted and placed parcels to scan and placed them in a hamper, then was sent home after about an
hour. On June 12, 2013 she worked the post office box section, and after about an hour and a
half, her arm swelled and began to throb. Appellant stated that she told her supervisor, who gave
her a short break and sent her home. On June 13, 2013 she worked the post office box section
and her arm began to swell again, causing pain significant enough to bring her to tears.
Appellant reported to her supervisor and was advised to go home and contact her physician.
Dr. Filippone noted that he found that these work duties would aggravate her preexisting left
elbow injury. He noted subjective complaints of constant pain in the radial aspect of her left
forearm; pain in the left fingers; burning sensations in the left hand, shoulder, and neck; and
numbness and tingling in the thumb, index, and middle fingers of both hands.
In an attending physician’s report dated February 4, 2014, Dr. Filippone noted that
appellant continued to be totally disabled.
A hearing before an OWCP hearing representative on the issue of appellant’s claim for
traumatic injury based upon a traumatic incident of June 13, 2013 was held on
February 18, 2014. At the hearing, appellant stated that she began working for the employing
establishment in August 1995. She noted that on January 4, 2011 she injured herself when she
slipped on black ice, and that OWCP accepted her claim for fracture of the left radius neck,
closed. Appellant returned to work in March 2011 and later stopped work in April 2011 due to
an elbow injury, which was accepted for left lateral epicondylitis. She returned to work again on
May 28, 2013 for training after being offered a modified clerk position. Appellant stated that on
June 10, 2013 she returned to work thinking that she would be performing a modified clerk job,
but that on that day a supervisor told her that her paperwork was not finished, and so she was
stuck in the post office box section. She noted that this position involving taking mail out of
buckets and trays and putting them in post office boxes, which was a repetitive task involving
reaching, twisting, and lifting. Appellant stated that she never had to reach above her shoulder in
this position. On June 10, 2013 she began experiencing pain and swelling in her left elbow that
radiated from her shoulders to her fingers. Appellant continued performing these duties until
June 13, 2013, at which point the pain made her unable to move her arm. She noted that
Dr. Chen thought her injury was a recurrence of her prior elbow injury, and he told her that he

6

thought this because she had been performing repetitive activities. Appellant stated that she had
“maxed out” her visits with Dr. Chen, so he released her that day to see another physician for a
second opinion. She explained that, because OWCP denied payment to check her shoulder,
Dr. Chen told her that there was nothing more he could do for her, and referred her to
Dr. Filippone. Appellant had been out of work since that time under Dr. Filippone’s care.
Appellant’s counsel contended that appellant’s claim under file number xxxxxx401 was an
aggravation of her previous work injury of left epicondylitis due to new exposure from June 10
through 13, 2013.
A hearing before an OWCP hearing representative on the issue of appellant’s
abandonment of suitable work was held on April 28, 2014. Appellant’s counsel contended that
upon appellant’s return to work on June 10, 2013, her work restrictions of occasional left-sided
pushing, pulling, and gripping were not honored when she was put to work in the post office box
section. He noted that Dr. Chen had noted in his report of June 18, 2013 that appellant was
doing repetitive activities at work. Counsel contended that appellant was not performing the
duties outlined in the April 4, 2013 modified job offer when she returned to work, but instead she
was working in the post office box area, and that as such, Dr. Chen’s June 25, 2013 opinion that
there were no objective findings that would prohibit her from working with the outlined
restrictions was irrelevant. He stated that Dr. Filippone’s opinion regarding appellant’s disability
outweighed that of Dr. Chen due to these deficiencies, and that at the very least, there was a
conflict of medical opinion between the two physicians of equal weight, requiring referral to an
impartial medical examiner. Counsel noted that appellant suffered a new traumatic injury on
June 13, 2013 as a result of the post office box duties, and that as such, the issue of appellant’s
abandonment of suitable work was not in posture for decision.
In an attending physician’s report dated May 6, 2014, Dr. Filippone again noted that
appellant continued to be totally disabled.
By decision dated May 9, 2014, the hearing representative affirmed OWCP’s decision of
September 17, 2013. She found that the factual evidence did not support that appellant sustained
a traumatic injury, noting that she attributed her elbow condition to duties over the course of
three days, and as such, analyzed appellant’s claim as an occupational disease. The hearing
representative further found that Dr. Chen, in his June 18, 2013 report, noted that appellant
reported increased pain upon a return to work, but also noted that there were no objective
findings on examination to support that appellant could not perform her modified duties. She
found that Dr. Filippone’s reports were of diminished probative value because he failed to
provide a specific diagnosis or well-reasoned medical opinion on the relationship between her
conditions and the events of June 13, 2013.
By decision dated July 15, 2014, the hearing representative affirmed OWCP’s decision of
November 1, 2013 finding that appellant had abandoned suitable work. She noted that Dr. Chen
had indicated that appellant could work within certain medical restrictions, and that the
employing establishment had offered a position within those restrictions, which OWCP found
suitable. The hearing representative found that the medical records received subsequent to
Dr. Chen’s June 25, 2013 report were not sufficient to shift the weight of the medical evidence or
to require further development of the claim.

7

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; 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.
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the

3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

5

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

8

Leslie C. Moore, 52 ECAB 132, 134 (2000).

8

care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS -- ISSUE 1
Appellant alleged that between June 10 and 13, 2013, she aggravated an injury to her
elbow in the performance of duty while working in the post office box section of the employing
establishment.10 OWCP accepted that the employment factors alleged, that of taking mail out of
buckets and trays and putting them in post office boxes, occurred as described. The issue,
consequently, is whether the medical evidence establishes that she sustained an injury as a result
of these factors. The Board finds that appellant has established the existence of the condition
claimed, but has not met her burden of proof to establish a causal relationship between factors of
her federal employment and her diagnosed conditions.
In reports dated July 9, 2013, Dr. Filippone noted that appellant was totally disabled
beginning June 13, 2013. He diagnosed her with a status post fracture of the left proximal radius
at the elbow; suspect reflex sympathetic dystrophy of the left upper extremity; and internal
derangement of the left shoulder. Dr. Filippone examined her, noting pain on palpation over the
medial more than the lateral left humeral epicondyle; diminished pinprick sensations; no definite
motor deficits of the abductor pollicis brevis, ulnar nerve intrinsics, extensor indicis proprius, or
extensor halluces longus; and pain on reaching from above and behind from below with her left
arm. He opined that his diagnoses were directly and solely the result of a slip and fall accident at
work.
In a report dated July 25, 2013, Dr. Filippone examined the results of an
electromyography/nerve conduction study, and diagnosed appellant with left C5-6 cervical
radiculopathy and bilateral carpal tunnel syndrome, worse on the left. He again opined that these
diagnoses were directly and solely the result of injuries sustained while working for the
employing establishment.
On February 4, 2014 Dr. Filippone noted that he had discussed the events of June 10
through 13, 2013 with appellant. After reviewing the events of those dates, he determined that
he found that these events would aggravate her preexisting left elbow injury. Dr. Filippone
noted subjective complaints of constant pain in the radial aspect of her left forearm; pain in the
left fingers; burning sensations in the left hand, shoulder, and neck; and numbness and tingling in
the thumb, index, and middle fingers of both hands.
9

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

10

The Board notes that in her initial filing of a Form CA-2a for recurrence and in her reply to OWCP’s inquiries,
appellant stated that her injury occurred on June 13, 2013. OWCP’s regulations define a traumatic injury as a
condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday
or shift. 20 C.F.R. § 10.5(ee). These regulations define an occupational disease or illness as a condition produced
by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q). However, at the
February 14, 2013 hearing, appellant alleged that her injury occurred as a result of duties of her federal employment
between June 10 and 13, 2013. Hence, initially, OWCP properly converted appellant’s claim for recurrence to a
traumatic injury claim rather than an occupational disease claim. Subsequently, based upon appellant’s new
testimony, the hearing representative properly analyzed appellant’s injury as an occupational disease.

9

The Board finds that Dr. Filippone’s reports are sufficient to establish the medical
component of fact of injury, as he diagnosed her with a status post fracture of the left proximal
radius at the elbow. However, his reports are not sufficiently rationalized to establish a causal
relationship between factors of appellant’s federal employment and her diagnosed conditions.
Dr. Filippone noted that the events of June 10 through 13, 2013 would aggravate her preexisting
left elbow injury. However, he did not provide a pathophysiological explanation as to how the
duties she performed on these dates would result in or aggravate her elbow conditions, nor did he
explain how appellant’s similar conditions prior to June 10, 2013 were aggravated by this
incident. Thus, Dr. Filippone’s opinion on causal relationship was of diminished probative
value, and as such, his reports are insufficient to establish appellant’s claim.
Dr. Chen’s June 18, 2013 report indicates that appellant came to visit for a follow up of
“left elbow lateral epicondylitis s/p release on January 27, 2012” and that “the patient reports
since returning to work with the light-duty restrictions she has had increased left elbow pain with
recurring swelling. She was doing repetitive activities at work. The patient describes her pain as
aching with associated spasms to the left upper arm which is worse with her work activities.” He
noted that appellant was currently unable to perform modified duty and that “it is within medical
probability that the current orthopedic complaints are causally related to the patient’s work
injury.” As Dr. Chen’s report does not specify which work injury he referred to, and as he did
not provide a detailed pathophysiological explanation as to how the duties she performed
between June 10 and 13, 2013 would result in or aggravate her elbow conditions, his report is
also of diminished probative value and is insufficient to establish appellant’s claim. The
remaining medical evidence of record is similarly deficient.
As such, the Board finds that there is insufficient rationalized medical evidence of record
to establish an aggravation of appellant’s elbow condition as a result of 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8106(c) of FECA provides in pertinent part, “A partially disabled employee who
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”11
It is OWCP’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.12 The implementing regulations provide
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of showing that such refusal or failure to work was reasonable
or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.13 To justify termination, OWCP must show that the
11

5 U.S.C. § 8106(c).

12

Joyce M. Doll, 53 ECAB 790 (2002).

13

20 C.F.R. § 10.517(a).

10

work offered was suitable and that appellant was informed of the consequences of her refusal to
accept such employment.14 In determining what constitutes suitable work for a particular
disabled employee, OWCP considers the employee’s current physical limitations, whether the
work is available within the employee’s demonstrated commuting area, the employee’s
qualifications to perform such work and other relevant factors.15 Once OWCP establishes that
offered work is suitable, the burden of proof shifts to appellant to show that her abandonment of
the position was reasonable or justified.16 Section 8106(c) will be narrowly construed as it
serves as a penalty provision which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment.17
ANALYSIS -- ISSUE 2
OWCP terminated appellant’s wage-loss and schedule award compensation effective
November 1, 2013 finding that she abandoned suitable work. It found that the weight of medical
evidence established that the modified clerk position was within the physical restrictions set forth
by Dr. Chen in his report dated August 28, 2012. The restrictions were incorporated into the
April 4, 2013 job offer, noting physical requirements of lifting less than 20 pounds no more than
2.6 hours per day; pushing, pulling, and gripping occasionally with the left side for no more than
2.6 hours per day; and reaching occasionally to shoulder level with the left side for no more than
2.6 hours per day. The duties of the position were described as “duties of a sales and service
associate.” OWCP determined, based on the medical evidence of record, that the job offered to
appellant on April 4, 2013 was suitable and within her physical capabilities. Appellant accepted
this job offer on April 30, 2013.
On appeal, appellant asserted that the position she worked upon returning to the
employing establishment on June 10, 2013 was not the one detailed in the April 4, 2013 job
offer, in that she was supposed to be working as a window clerk or sales and service associate
according to the job offer, but was assigned to put mail into post office boxes instead. The job
offer of April 4, 2013 stated that the duties of her modified assignment were the “duties of a
sales and service associate” for eight hours per day, and appellant was supposed to be working in
this position as of June 13, 2013. Pursuant to OWCP’s procedures, an acceptable reason for
refusing to perform in a position offered as suitable work is that the offered position has been
withdrawn.18
The suitable work position offered to appellant was a modified clerk position with the
“duties of a sales and service associate.” Appellant returned to work on May 28, 2013, but
14

Linda Hilton, 52 ECAB 476 (2001); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB
818 (1992).
15

20 C.F.R. § 10.500(b); see Ozine J. Hagan, 55 ECAB 681 (2004).

16

M.S., Docket No. 06-797 (issued January 31, 2007).

17

Gloria G. Godfrey, 52 ECAB 486 (2001).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal,
Chapter 2.814.5.a (June 2013).

11

stopped work on June 19, 2013 for an alleged recurrence of disability, after working in the box
section, filling boxes with mail. The employing establishment confirmed by letter on August 23,
2013 that at the time of appellant’s recurrence of disability she was given mainly post office box
duties, which required that she case letters and flats which were light in weight. It posited that
this type of work would not have caused her to suffer the injury claimed.
The Board finds that OWCP failed to meet its burden of proof to establish that the job
offer was suitable. The job offer of April 4, 2013 did not contain a description of the duties to be
performed as required by OWCP’s procedures;19 the case record did not contain a job description
for the “sales and service associate” position; and the Department of Labor’s Dictionary of
Occupational Titles does not contain a description of the duties of a “sales and service
associate.” The Board has explained that it is impossible for the Board to make an informed
decision as to the suitability of a position without knowing the nature of the duties.20 The Board
finds that the reference to “duties of a sales and service associate” was not sufficient, without
additional information of record, to meet its burden of proof to show that the position offered to
appellant was suitable, because the record did not contain an actual description of the duties to be
performed. Without such a description of the actual duties to be performed in the job offer, the
Board is unable to determine whether the duties appellant was performing at the time she
allegedly abandoned work, i.e., putting mail into post office boxes and casing mail would fall
within the scope of duties for a sales and service associate.
For these reasons, OWCP did not establish the suitability of the modified clerk position
on which the offer of suitable work was based. Therefore, it improperly terminated her
compensation effective November 1, 2013.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an aggravation of a left elbow condition causally related to factors of her federal
employment between June 10 and 13, 2013. The Board further finds that OWCP did not meet its
burden of proof to terminate appellant’s wage-loss compensation effective November 1, 2013 on
the ground that she abandoned suitable work.

19

Id. at Chapter 2.814.4.a.1.a (June 2013).

20

See L.C., Docket No. 11-422 (issued October 5, 2011).

12

ORDER
IT IS HEREBY ORDERED THAT the May 9, 2014 decision of the Office of Workers’
Compensation Programs is affirmed and the July 15, 2014 decision of OWCP is reversed.
Issued: June 9, 2016
Washington, DC

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

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

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 09-1089
Issued: December 8, 2009

Case Submitted on the Record

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

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from a January 16, 2009 merit
decision of the Office of Workers’ Compensation Programs denying a recurrence claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant established that he sustained a recurrence of disability on
May 1, 2002 causally related to his employment injury.
FACTUAL HISTORY
On June 26, 1987 appellant, then a 30-year-old custodial worker, filed a traumatic injury
claim (Form CA-1) alleging that on May 22, 1986 he pulled a back muscle while lifting a fivegallon bucket of water. He stopped working on that day. The Office accepted the claim for
lower back strain and provided wage-loss and medical benefits. By decision dated April 17,

1992, the Office terminated appellant’s wage-loss and medical benefits effective April 5, 1992
on the grounds that the medical evidence established that he was no longer experiencing
residuals of the employment-related injury.
On August 18, 2003 appellant filed a claim for a May 2002 recurrence of disability (Form
CA-2a). He claimed that his back, leg and arm pain had been consistent and that he was unable
to lift objects.
In a June 6, 2003 disability certificate, Dr. Kempanna Sudhakar, a Board-certified
internist, stated that appellant was disabled from April 2003 to the present due to right back pain.
By letter dated September 8, 2003, the Office notified appellant of the deficiencies in his
recurrence claim and requested he provide additional information.
Appellant further submitted medical reports from Dr. Montague Blundon, a Boardcertified orthopedic surgeon, dated May 5, 2002 through September 18, 2003. Dr. Blundon
stated that appellant presented for treatment of acute trauma of the lumbar spine from a May 22,
1986 work injury. He reported appellant’s complaints of pain with bending, lifting, range of
motion and any type of stress. Physical examinations revealed decreased range of motion
throughout the lumbar spine and muscle spasms. Previous x-rays did not show any congenital
anomalies or severe degenerative arthritis. Dr. Blundon diagnosed acute lumbar strain. He
further stated that appellant stopped working due to severe back pain and muscle spasms and was
not able to return.
In a November 11, 2008 letter, appellant asked about the status of his case and requested
the Office to issue a decision, in writing, on his claim.
By decision dated January 16, 2009, the Office denied appellant’s recurrence claim on
the grounds that he did not submit sufficient medical evidence to establish that he sustained a
recurrence of disability causally related to his employment injury.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”1 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable
and probative evidence that the disability for which he claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that

1

R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5(x).

2

conclusion with sound medical reasoning.2 Where no such rationale is present, medical evidence
is of diminished probative value.3
ANALYSIS
The Office accepted that appellant sustained a lower back strain as a result of the May 22,
1986 employment injury. On April 7, 1992 it terminated appellant’s wage-loss and medical
benefits on the grounds that the medical evidence established that he was no longer experiencing
any residuals of his employment-related injury. The issue is whether appellant established that
he sustained a recurrence of disability in May 2002 causally related to his employment injury.
The Board finds that he has not met his burden of proof.
In support of his recurrence claim, appellant submitted a June 6, 2003 disability
certificate from Dr. Sudhakar stating that he was disabled due to right back pain. This evidence
is not sufficient to establish appellant’s claim as it does not address the cause of the right back
pain or how this pain was related to appellant’s employment injury.4
Further, appellant submitted medical notes dated May 5, 2002 through September 18,
2003 from Dr. Blundon who stated that he was treating appellant for an acute trauma of the
lumbar spine caused by the May 22, 1986 employment injury. Dr. Blundon performed a
physical examination, revealing decreased range of motion and muscle spasms, and diagnosed
acute lumbar strain. He advised that appellant stopped working due to severe back pain and
muscle spasms and was unable to return. These reports are similarly insufficient to establish
appellant’s recurrence claim. Dr. Blundon did not provide a rationalized medical opinion
describing how appellant experienced a spontaneous condition on May 1, 2002 causally related
to his May 22, 1986 employment injury. Further, he did not explain how appellant’s
employment injury, which occurred 16 years prior and which was found to have resolved
approximately 10 years ago, was related to the current acute lumbar strain. Thus, the Board
finds Dr. Blundon’s reports are of diminished probative value.5
On appeal, appellant contends that the Office advised him to return to work and that his
disability benefits would be reinstated if his injury presented further problems. As stated above,
prior to a reinstatement of disability benefits, appellant is required to submit rationalized medical
evidence establishing that he experienced a spontaneous and disabling medical condition
causally related to his employment injury. The Board finds that the current medical evidence is
insufficient to establish appellant’s claim for a recurrence of disability.6
2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

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

5

See S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

6

Subsequent to the issuance of the Office decision, appellant submitted additional evidence. As this evidence
was not previously submitted to the Office for consideration prior to its January 16, 2009 decision, it represents new
evidence, which cannot be considered by the Board in the current appeal. See 20 C.F.R. 501.2(c). See also Mary A.
Ceglia, 55 ECAB 626 (2004).

3

CONCLUSION
The Board finds that appellant did not establish that he sustained a recurrence of
disability on May 1, 2002 causally related to his employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chamblee, GA, Employer
__________________________________________

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Appearances:
Tim Egbuchunam, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1316
Issued: November 5, 2012

Case Submitted on the Record

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

JURISDICTION
On May 25, 2012 appellant, through his representative, filed a timely appeal from the
January 18, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied authorization for surgery. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for a right hip
replacement.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In the prior appeal,2 the Board affirmed OWCP’s January 15, 2010 decision denying
authorization for appellant’s July 20, 2009 right hip replacement. The Board found that he had
not met his burden to establish that the surgery was for the effects of an employment-related
condition. The evidence contemporaneous to the July 30, 2005 traumatic injury noted that
appellant, in his capacity as a letter carrier, had slipped on the wet metal step-up to his postal
vehicle and twisted his right hip.
In 2007, Dr. Thomas Branch, the attending orthopedic surgeon, reported that, when
appellant’s foot slipped, he twisted around to the side and slammed his right hip and back into
the truck as he held the mirror with his right hand. Two years later, in 2009, he reported that
appellant fell out of his mail truck, striking his right side and back with enough force to sustain a
lower back fracture requiring stabilization surgery in 2008. Also in 2009, Dr. John W. Ellis, the
attending osteopath, related an impact injury when appellant slipped, swung in the air and hit his
right hip, causing a contusion and internal derangement requiring surgery.
The Board found that Dr. Branch and Dr. Ellis based their opinions on a history of injury
that differed materially from what was found in the factual and medical evidence
contemporaneous to the July 30, 2005 work injury. To the extent that the unsupported history of
a forceful impact led these doctors to conclude that appellant’s total hip replacement was a result
of what happened in 2005, the Board found their opinions to be of diminished probative value.
Dr. Barry Koffler, an orthopedic surgeon and second opinion physician, found that
surgery was not a result of what happened on July 30, 2005. He observed that there was no
documentation of any temporal relationship between the 2005 work injury and the hip problem
from which appellant suffered in 2009. There was no documentation that appellant’s hip was a
problem before 2008. Given the lack of probative evidence supporting causal relationship and
the lack of bridging documentation, the Board found that OWCP had acted reasonably in
denying authorization for the surgery. The facts of this case are hereby incorporated by
reference.
On August 4, 2011 Dr. M. Stephen Wilson, specializing in injury evaluation and
rehabilitation, examined appellant and offered an opinion on the causal relationship between his
federal employment and his right hip replacement. He related that on July 30, 2005 appellant
stepped out of his mail truck and slipped. As appellant fell, he grabbed onto the handle of his
truck, causing him to swing around and hit his right shoulder and hip on the vehicle. He had
immediate pain in his back, right hip and right shoulder.
Dr. Wilson noted that appellant suffered from right hip pain after receiving a schedule
award in August 2008. X-rays revealed a severe collapse of the right hip and he was diagnosed
with right hip osteoarthritis, for which Dr. Branch performed a total hip arthroplasty in 2009.
Dr. Wilson found that appellant developed degenerative changes in his right hip due to
his work-related accident and cumulative work-related duties while employed as a letter carrier
2

Docket No. 10-866 (issued November 24, 2010).

2

for 26 years. It was his opinion that physically demanding repetitive duties could definitely
cause degenerative changes and could actually progress degenerative changes in an accelerated
manner following a traumatic injury.
On January 18, 2012 OWCP reviewed the merits of appellant’s case and denied
modification of its prior decision. It found that Dr. Wilson provided insufficient rationale based
on objective evidence. OWCP noted that attributing the right hip condition to appellant’s regular
work duties was a completely different allegation than appellant made on his traumatic injury
claim form. It noted that evidence providing a completely different explanation of the need for
surgery weakened his claim.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.3 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.4 The
only limitation on OWCP’s authority is that of reasonableness.5
OWCP’s obligation to pay for medical treatment under section 8103 of FECA extends
only to treatment of employment-related conditions and appellant has the burden of establishing
that the requested treatment is for the effects of an employment-related condition. Proof of
causal relation must include rationalized medical evidence.6 Medical conclusions unsupported
by rationale are of little probative value.7 Medical conclusions based on inaccurate or
incomplete histories are also of little probative value.8
ANALYSIS
Appellant continues to seek authorization for his right total hip replacement on
July 20, 2009. As before, he bears the burden of establishing that the surgery was for the effects
of an employment-related condition.
3

5 U.S.C. § 8103(a). These services include surgery and hospitalization. Federal (FECA) Procedure Manual,
Part 3 -- Medical, Overview, Chapter 3.100.2.a (October 1990).
4

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of 5 U.S.C. § 8103).
5

Daniel J. Perea, 42 ECAB 214 (1990).

6

Debra S. King, 44 ECAB 203 (1992).

7

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

8

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

3

Appellant submitted a report from Dr. Wilson, a specialist in injury evaluation and
rehabilitation, who, however, related the history of an impact injury to the right hip. As the
Board explained in the prior appeal, this history differs materially from the history found in the
factual and medical evidence contemporaneous to the July 30, 2005 work injury. To the extent
that the unsupported history of an impact led Dr. Wilson to conclude that appellant’s total hip
replacement was a result of what happened on July 30, 2005, the Board finds his opinion to be of
diminished probative value.
Dr. Wilson’s report did not bridge the evidentiary gap between the initial right hip pain
appellant felt following his accepted July 30, 2005 slip and twist injury and the pain he
complained of in 2008, which led to x-rays and eventually a total hip replacement in 2009. He
did not explain how, pathologically speaking, the July 30, 2005 work incident caused or
aggravated degenerative changes in appellant’s right hip, nor did he identify objective evidence
to support that relationship.
Further, Dr. Wilson attributed the need for surgery to the physical demands of appellant’s
job over time, thereby describing an occupational injury appellant has not claimed and OWCP
has not accepted.
OWCP has broad discretionary authority under section 8103 of FECA. As Dr. Wilson
related a history of injury that is not established by the record, and as he provided insufficient
medical rationale causally connecting appellant’s 2009 total hip replacement to what happened
on July 30, 2005, the Board finds that OWCP acted reasonably in denying modification of its
prior decision to deny authorization for the surgery.9 The Board will affirm OWCP’s
January 18, 2012 decision.
CONCLUSION
The Board finds that OWCP properly denied authorization for right hip surgery.

9

Dr. Wilson’s opinion, thus, does not create a conflict with the opinion given by Dr. Koffler, the second opinion
orthopedic surgeon.

4

ORDER
IT IS HEREBY ORDERED THAT the January 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2012
Washington, DC

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

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

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

5


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

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

Docket No. 09-1673
Issued: March 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 22, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated April 27, 2009, which affirmed the denial of his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
low back condition while in the performance of duty.
FACTUAL HISTORY
On June 10, 2008 appellant, then a 34-year-old letter carrier, filed an occupational disease
claim alleging that he developed low back pain as a result of carrying mail. He became aware of
his condition and realized it was caused by his work on May 20, 2008. Appellant stopped work
on June 6, 2008 and returned to a light-duty position on June 12, 2008.

Appellant submitted a magnetic resonance imaging (MRI) scan of the lumbar spine dated
September 12, 2005. It revealed an L4-5 posterior disc herniation with ventral thecal sac,
foraminal narrowing, L4-5 Grade 1 anterolisthesis related to facet hypertrophic change. On
August 6, 2007 appellant sought treatment from Dr. Albert Villafuerte, a Board-certified family
practitioner, for cervical and lumbar strain sustained when he was involved in a motor vehicle
accident on August 8, 2005. He was also treated by Dr. Spencer Shaw, a Board-certified family
practitioner, on May 21 and June 4, 2008, for low back syndrome. Dr. Shaw advised that
appellant could return to work subject to various restrictions including a 15-pound lifting
restriction and use of an assisted device for carrying. On June 10, 2008 appellant came under the
treatment of Dr. Syeds Rahman, a Board-certified orthopedic surgeon, who diagnosed back pain
and opined appellant could resume work with no acute bending or heavy carrying and lifting.
The employing establishment submitted a June 12, 2008 letter controverting the claim. It
noted that appellant sustained a back injury in a motor vehicle accident prior to his employment.
In a letter dated August 4, 2008, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his claimed condition and specific employment factors.
The Office also requested that the employing establishment submit comments from a
knowledgeable supervisor addressing appellant’s claim for compensation.
Appellant submitted a May 22, 2008 letter to the employing establishment requesting
light duty as a result of back pain caused by carrying a mail satchel. In an August 14, 2008
statement, he noted that he carried a heavy volume of mail using a shoulder bag and his route
included walking up hills and stairs to deliver mail. Appellant worked 40 hours a week with
overtime and experienced back pain, which became unbearable on May 20, 2008. He informed
Robert Dini, his postmaster, of his condition and was offered a light-duty position using a
pushcart. Appellant resubmitted the treatment notes from Dr. Shaw and Dr. Rahman previously
of record.
In a September 11, 2008 decision, the Office denied appellant’s claim on that grounds
that the medical evidence was not sufficient to establish that his back condition was caused by
his work duties.
On September 25, 2008 appellant requested an oral hearing which was held on
February 24, 2009. In a December 29, 2005 report Dr. Villafuerte, treated appellant for neck
pain and stiffness which developed following a motor vehicle accident on August 8, 2005. He
diagnosed status post motor vehicle accident on August 8, 2005, cervical and lumbar myofascial
pain, cervical disc bulge, lumbar disc herniation and right L5 radiculopathy. Appellant
submitted a June 18, 2008 MRI scan of the lumbar spine which revealed a right foraminal disc
herniation at L4-5 with mild deformity of the right L4 nerve root.
In June 19 and September 9, 2008 reports, Dr. Rahman treated appellant for low back
pain with radiating symptoms down his left lower extremity. He noted findings upon physical
examination of normal motor strength of the lower extremities, intact sensation, deep tendon
reflexes were bilateral and symmetrical, straight leg raises were positive bilaterally with mild to
moderate lumbar paraspinal spasms. Dr. Rahman diagnosed low back pain, degenerative lumbar

2

disc disease, lumbar radiculitis/discogenic pain syndrome, myofascial pain syndrome and
lumbago. He continued appellant’s work restrictions and recommended physical therapy and a
back brace. In a February 26, 2009 report, Dr. Rahman reported that appellant remained
clinically unchanged and was working light duty. Appellant reported working for the employing
establishment where he was required to carry bags of heavy mail and experienced progressive
back pain which peaked on May 20, 2008. Dr. Rahman noted an essentially normal physical
examination and diagnosed low back pain, resolving discogenic pain, resolving lumbar
radiculitis, myofascial pain syndrome and lumbago. He noted that appellant experienced some
relief with physical therapy and epidural injections and advised that he could continue light duty.
Dr. Rahman stated that, in light of the clinical findings and the MRI scan findings, it appeared
that appellant’s present clinical status could have resulted from the reported back injury
sustained May 20, 2008.
The employing establishment submitted a March 17, 2009 report from Dr. Gerald Singer,
a Board-certified internist and employing establishment physician, who noted reviewing the MRI
scan reports of the lumbar spine dated September 14, 2005 and June 18, 2008 and opined that
there was no significant change and some overall improvement reported on the June 18, 2008
examination.
In a decision dated April 27, 2009, the hearing representative affirmed the September 11,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. 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.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; 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 claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
1

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

3

claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.2
ANALYSIS
It is not disputed that appellant’s duties as a letter carrier include prolonged standing and
walking while carrying a mailbag. He was diagnosed with degenerative lumbar disc disease,
lumbar radiculitis/discogenic pain syndrome, myofascial pain syndrome and lumbago. Appellant
has not submitted sufficient medical evidence to establish that his diagnosed conditions are
causally related to his employment duties as a letter carrier. On August 4, 2008 the Office
advised him of the medical evidence needed to establish his claim. Appellant did not submit a
rationalized medical report from a physician addressing how specific employment factors caused
or aggravated his claimed condition.
Appellant submitted reports from Dr. Villafuerte dated December 29, 2005 and August 6,
2007, who treated him for neck and back pain, which developed after he was involved in a motor
vehicle accident on August 8, 2005. Dr. Villafuerte diagnosed status post motor vehicle accident
on August 8, 2005, cervical and lumbar myofascial pain, cervical disc bulge, lumbar disc
herniation and right L5 radiculopathy.
The medical evidence documents preexisting
degenerative disease to appellant’s cervical and lumbar spine.
In reports dated May 21 and June 4, 2008, Dr. Shaw noted appellant’s treatment for low
back pain syndrome. On June 4, 2008 he continued appellant’s work restrictions of lifting
limited to 15 pounds and use of an assisted device for carrying. However, these notes did not
offer any opinion on how his caused or aggravated the diagnosed condition.3 Dr. Shaw did not
address the preexisting injury to appellant’s back or explain how his work would contribute to
any disability or need for treatment. Consequently, these reports are of diminished probative
value and do not establish appellant’s claim.
In a February 26, 2009 report, Dr. Rahman noted that appellant reported working for the
employing establishment where he was required to carry bags of heavy mail and experienced a
progression of back pain, which peaked on May 20, 2008. He diagnosed low back pain,
resolving discogenic pain, resolving lumbar radiculitis, myofascial pain syndrome and lumbago.
Dr. Rahman opined that, in light of the clinical findings and the MRI scan findings, it “appears
that [appellant’s] present clinical status could have been resulted from the reported injury he
sustained back on May 20, 2008.” Although he provided some support for causal relationship, it
is insufficient to establish the claimed lumbar condition. Dr. Rahman, provided only speculative
support for causal relationship by noting that appellant’s condition “could have been” related to
the back injury of May 20, 2008. He provided no medical reasoning to support causal
2

Solomon Polen, 51 ECAB 341 (2000).

3

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

relationship. Additionally, Dr. Rahman failed to obtain a history of appellant’s August 8, 2005
motor vehicle accident and preexisting back injury. He did not address how appellant’s duties
aggravated or contributed to disability. Therefore, Dr. Rahman’s reports are insufficient to meet
appellant’s burden of proof.
The diagnostic tests of record are insufficient to establish appellant’s claim. They do not
provide a physician’s opinion on the causal relationship between appellant’s job factors and
diagnosed medical conditions.
On appeal, appellant’s asserts that his condition is employment related as he passed a
physical examination before he was hired by the employing establishment. However, an award
of compensation may not be based on surmise, conjecture or speculation. Neither the fact that
appellant’s condition became apparent during a period of employment nor the belief that the
condition was caused, precipitated or aggravated by his employment is sufficient to establish
causal relationship.4 Causal relationships must be established by rationalized medical opinion
evidence. Appellant failed to submit such evidence. The Office properly denied his claim for
compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an employment-related injury in the performance of duty.

4

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

5

ORDER
IT IS HEREBY ORDERED THAT the April 27, 2009 and September 11, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 8, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
IMPERIAL BEACH STATION, San Diego, CA,
Employer
__________________________________________

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

Docket No. 20-1316
Issued: March 3, 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 June 22, 2020 appellant filed a timely appeal from a January 7, 2020 merit decision and
June 3, 2020 nonmerit 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
ISSUES
The issues are: (1) 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; and

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the June 3, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 14, 2008 appellant, then a 39-year-old senior patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on May 12, 2008 he suffered a left shoulder and arm injury after
losing control and falling from an all-terrain vehicle (ATV) while in the performance of duty. He
stopped work on May 12, 2008.
In a May 14, 2008 report, Dr. Benjamin Cox, a neurosurgeon, noted that appellant
experienced bilateral shoulder and rib pain after falling from an ATV onto concrete. He examined
appellant and reviewed x-rays of his shoulders. Dr. Cox diagnosed acute grade 2 left
acromioclavicular (AC) joint separation, left all costochondral junction disruption syndrome, left
pectoralis major and minor muscle strain/sprain, left deltoid muscle and triceps muscle
strain/sprain, and right infraspinatus muscle strain.
Appellant returned to light-duty work on June 18, 2008 and full-duty work on
August 20, 2008.
In a September 17, 2008 report, Dr. Cox noted that appellant had no subjective complaints.
He examined appellant and found no external anatomical abnormalities and full left shoulder range
of motion (ROM). Dr. Cox opined that appellant had reached maximum medical improvement
(MMI).
On October 15, 2008 OWCP accepted appellant’s claim for left AC joint separation.
On May 15, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated May 19, 2017, OWCP informed appellant that the medical
evidence of record was insufficient to establish his schedule award claim. It requested that he
submit a detailed narrative medical report from his treating physician based upon a recent
examination including a date of MMI, the diagnosis upon which the impairment rating was based,
a detailed description of any preexisting impairment, and a final rating of the permanent
impairment and discussion of the rationale for calculation of the impairment, with references to
the applicable criteria and tables of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).3 OWCP afforded appellant 30 days
to submit the necessary evidence.
In a June 27, 2017 report, Dr. David Chao, an orthopedic surgeon, noted that appellant
injured his left shoulder after rolling over in an ATV and landing on his left shoulder. He examined
appellant and noted that he had normal ROM and full strength in his left shoulder. Dr. Chao
reviewed x-rays of appellant’s left shoulder and diagnosed closed traumatic dislocation of the left
AC joint. Utilizing the fifth edition of the A.M.A., Guides,4 he found that appellant had 10 percent

3

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

4

A.M.A., Guides (5th ed. 2001).

2

permanent impairment of the upper extremity. Dr. Chao opined that appellant had reached
permanent and stationary status.
On March 7, 2018 OWCP referred appellant’s case, along with a statement of accepted
facts (SOAF), to Dr. Herbert White, Jr., a Board-certified occupational medicine specialist serving
as the district medical adviser (DMA). In a March 10, 2018 report, Dr. White reviewed the SOAF
and medical record. Utilizing the diagnosis-based impairment (DBI) method of the sixth edition
of the A.M.A., Guides, he identified the class of diagnosis (CDX) as a class one impairment for
the diagnosis of AC joint injury or disease with residual loss, functional with normal motion under
Table 15-5, page 403. Dr. White noted a grade modifier for functional history (GMFH) of 1, in
accordance with Table 15-7, page 406, as appellant had pain/symptoms with strenuous activity.
He assigned a grade modifier for physical examination (GMPE) of 1, in accordance with Table
15-8, page 408, as appellant’s AC joint prominence was exaggerated. Dr. White found that a grade
modifier for clinical studies (GMCS) was excluded in accordance with Table 15-9, page 410. He
calculated that appellant had a net adjustment of zero, resulting in no movement from the default
value of C and corresponding to a three percent left upper extremity impairment. Dr. White
determined that appellant had zero percent left upper extremity impairment under the range of
motion (ROM) methodology and therefore concluded that the DBI method should be used for
rating purposes. He disagreed with Dr. Chao’s impairment rating as he found that appellant had a
Type 2 AC separation based on Dr. Cox’s report. Dr. White opined that appellant reached MMI
on August 20, 2008, the date that appellant returned to full-duty work.
A left shoulder arthrogram, dated December 12, 2018, revealed extensive labral tearing
with paralabral cyst formation and articular-sided tearing with mild medial subluxation consistent
with remote grade 3 AC separation.
On April 29, 2019 OWCP referred appellant for a second opinion examination with
Dr. Ronald Teed, a Board-certified orthopedic surgeon. In a July 3, 2019 report, Dr. Teed
reviewed the SOAF and medical record.5 He examined appellant and found no gross deformity in
his bilateral shoulders. Dr. Teed noted that both shoulders had full ROM and full strength. He
indicated that appellant’s left shoulder had no pain to palpation and his left AC joint was
prominent, nontender, and stable. Dr. Teed diagnosed closed left AC dislocation, healed, and
noted that appellant had secondary, unrelated conditions that were due to aging. He opined that
appellant reached MMI on September 17, 2008. Utilizing the DBI method of the A.M.A., Guides,
Dr. Teed identified the CDX as a class zero impairment for the diagnosis of AC joint injury or
disease with no significant objective abnormal findings at MMI. He therefore concluded that
appellant had zero percent permanent impairment of the upper extremity.
X-rays of appellant’s left shoulder, dated November 19, 2019, revealed prior left AC joint
separation.
In a November 19, 2019 report, Dr. Mallik Tella, a Board-certified orthopedic surgeon,
noted that appellant presented with an 11-year history of left shoulder pain after falling from an
ATV. He examined appellant’s left shoulder and found tenderness to palpation at the biceps
tendon and AC joint. Dr. Tella noted that appellant had full strength in his left shoulder. He
diagnosed Type 3 left AC separation and indicated that appellant had 10 percent permanent
5

Dr. Teed referenced findings of a February 28, 2019 magnetic resonance imaging (MRI) scan and a request for
surgery from Dr. Patrick Denard that are unrelated to appellant’s case.

3

impairment of the upper extremity. Dr. Tella noted that appellant had a class one injury/mild
problem and that all of his grade modifiers were one.
On December 5, 2019 OWCP again referred appellant’s case to Dr. White, the DMA, for
a schedule award impairment rating. In a December 13, 2019 report, Dr. White reviewed the
SOAF and medical record.6 Utilizing the DBI method of the A.M.A., Guides, he identified the
CDX as a class zero impairment for the diagnosis of AC joint injury or disease with no significant
objective abnormal findings under Table 15-5, page 403. Dr. White therefore noted that appellant
had zero percent left upper extremity impairment. He calculated that appellant also had zero
percent left upper extremity impairment under the ROM methodology. Dr. White agreed with
Dr. Teed’s impairment rating, but opined that the date of MMI was July 3, 2019.
By decision dated January 7, 2020, 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. It based its determination on the opinion of
Dr. White, the DMA.
On May 19, 2020 appellant requested reconsideration. He asserted that he had 10 percent
upper extremity impairment based on the reports of Drs. Chao and Tella. Appellant argued that
the July 3, 2019 report from Dr. Teed was inconsistent and referenced medical evidence that was
unrelated to his case.
By decision dated June 3, 2020, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,7 and its implementing federal regulations,8 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
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.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health

Dr. White did not review x-rays of appellant’s left shoulder, dated November 19, 2019, and Dr. Tella’s report of
even date.
6

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (February 2013); see also Chapter 3.700.2 and Exhibit 1 (January 2010).

4

(ICF).11 Under the sixth edition, the evaluator identifies the CDX, which is then adjusted by the
GMFH, GMPE, and GMCS.12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).13 Evaluators are directed to provide reasons for their impairment rating, including
the choice of diagnoses from regional grids and the calculation of the modifier score.14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.15
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In a June 27, 2017 report, Dr. Chao, appellant’s attending physician, diagnosed closed
traumatic dislocation of the left AC joint and found that appellant had 10 percent permanent
impairment of the upper extremity under the fifth edition of the A.M.A., Guides.
In a March 10, 2018 report, Dr. White, the DMA, reviewed the SOAF and medical record.
Utilizing the DBI method of the A.M.A., Guides, he identified the CDX as a class one impairment
for the diagnosis of AC joint injury or disease with residual loss, functional with normal motion
under Table 15-5, page 403. Dr. White calculated that appellant had three percent left upper
extremity impairment. He disagreed with Dr. Chao’s impairment rating as he found that appellant
had a Type 2 AC separation as opposed to a Type 3 AC separation.
OWCP referred appellant to Dr. Teed for a second opinion examination to determine his
permanent impairment for schedule award purposes. In a July 3, 2019 report, Dr. Teed provided
findings on physical examination and noted that a diagnosis of closed left AC dislocation, healed.
He opined that appellant reached MMI on September 17, 2008. Utilizing the DBI method of the
A.M.A., Guides, Dr. Teed identified the CDX as a class zero impairment for the diagnosis of AC
joint injury or disease with no significant objective abnormal findings at MMI and concluded that
appellant had zero percent permanent impairment of the upper extremity.
In a December 13, 2019 report, Dr. White, the DMA, reviewed Dr. Teed’s July 3, 2019
report. Utilizing the DBI method of the A.M.A., Guides, he identified the CDX as a class zero
impairment for the diagnosis of AC joint injury or disease with no significant objective abnormal
findings under Table 15-5, page 403. Dr. White, therefore, found that appellant had zero percent
left upper extremity impairment. He calculated that appellant also had zero percent left upper

11

A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability, and Health
(ICF): A Contemporary Model of Disablement.
12

Id. at 493-556.

13

Id. at 521.

14

E.W., Docket No. 19-1720 (issued November 25, 2020); R.R., Docket No. 17-1947 (issued December 19, 2018);
R.V., Docket No. 10-1827 (issued April 1, 2011).
15

See supra note 10 at Chapter 2.808.6(f) (March 2017).

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extremity impairment under the ROM methodology and opined that the date of MMI was
July 3, 2019.
Having reviewed the case record, the Board finds that OWCP failed to properly develop
the evidence. OWCP received x-rays of appellant’s left shoulder, dated November 19, 2019,
which revealed prior left AC joint separation. It also received a November 19, 2019 report from
Dr. Tella who provided findings on physical examination and found that appellant had 10 percent
permanent impairment of the upper extremity. However, OWCP failed to forward this relevant
medical evidence to Dr. White for comment and review pertaining to the extent of permanent
impairment of appellant’s left upper extremity impairment.16 The record reflects that Dr. White’s
impairment rating was therefore not based on a full and accurate framework rendering his opinion
of limited probative value.17
Additionally, the Board finds that Dr. White failed to adequately explain his opinion in
accordance with the relevant standards. Although he identified the CDX as class zero impairment,
Dr. White did not sufficiently explain how he classified appellant’s AC joint injury based on
severity.18 Dr. White noted that there were no significant objective abnormal findings at MMI.
However, he failed to account for appellant’s arthrogram of his left shoulder, dated December 12,
2018, which revealed labral tearing with partial rotator cuff tearing, biceps tendon medial
subluxation, and findings consistent with remote grade 3 AC separation. Dr. White also failed to
explain why he identified the CDX as class zero impairment after finding that the CDX was a class
one impairment in his March 10, 2018 report.
It is well established that, proceedings under FECA are not adversarial in nature, and while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.19 Once OWCP undertook development of the
evidence by referring appellant’s case file to an OWCP medical adviser, it had an obligation to do
a complete job and obtain a proper evaluation and report that would resolve the issue in this case.20
The case is therefore remanded to OWCP for further medical development.21 OWCP shall
request that Dr. White review the entire case record and provide a supplemental opinion regarding
whether appellant has permanent impairment of his left upper extremity in accordance with the
sixth edition of the A.M.A., Guides. Following this and such further development as deemed
necessary, OWCP shall issue a de novo decision.

16

L.S., Docket No. 19-1730 (issued August 26, 2020).

17

Id.

18

See D.O., Docket No. 19-1729 (issued November 3, 2020); R.O., Docket No. 10-2143 (issued August 15, 2011).

19
See W.W., Docket No. 18-0093 (issued October 9, 2018); Donald R. Gervasi, 57 ECAB 281, 286 (2005);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).
20

See G.M., Docket No. 19-1931 (issued May 28, 2020); Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi,
56 ECAB 234 (2004).
21

L.S., supra note Error! Bookmark not defined.; P.E., Docket No. 17-0961 (issued March 14, 2018).

6

CONCLUSION
The Board finds this case is not in posture for decision.22
ORDER
IT IS HEREBY ORDERED THAT the January 7 and June 3, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: March 3, 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

22

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

7


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

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

Docket No. 18-1658
Issued: May 2, 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 August 29, 2018 appellant filed a timely appeal from an August 13, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on April 9, 2018, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 13, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id

FACTUAL HISTORY
On June 7, 2018 appellant, then a 54-year-old carrier, filed a traumatic injury claim (Form
CA-1) alleging that, on April 9, 2018, she injured her back while in the performance of duty.
In an April 9, 2018 work status report form and report, Dr. John Barone, an examining
physician specializing in occupational medicine, diagnosed acute appendicitis and estimated one
day of temporary total disability. In the April 9, 2018 report, he indicated that appellant related
feeling something push on her belly while lifting tubes full of mail and that, when the pain did not
go away, she notified her supervisor. The supervisor reported that appellant noticed lower
abdominal pain while she was at work and there was no prior history of acute or cumulative trauma
to the abdomen.
Dr. Barone, in follow-up reports dated April 10, 17, May 8, June 6, and 19, 2018, provided
physical examination findings. He diagnosed lumbar strain on April 10 and June 19, 2018 and
lower back muscle, fascia, and tendon strain on April 17, May 8, and June 6, 2018. Under history
of injury, Dr. Barone noted an April 9, 2018 injury date, an improving condition, and that appellant
was on modified duty. Appellant complained of lumbosacral area pain which she described as
sharp, intermittent, and moderately severe. Dr. Barone detailed appellant’s job duties, length of
employment, and hours worked. On June 19, 2018 he reviewed x-ray interpretations of the lumbar
and hip areas, which he found to be normal.
By development letter dated July 13, 2018, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to provide the requested evidence. In response to its development letter, appellant submitted
evidence including reports dated June 27, July 18, and 26, 2018 from Dr. Barone who noted that
she was seen for a follow-up on an April 9, 2018 injury and that her condition was improving as
expected. She continued having complaints of limited back range of motion, radiation of back
pain, intermittent lumbosacral area pain which she described as sharp and moderately severe.
Examination findings were unchanged from prior reports. Dr. Barone diagnosed lumbar
radiculopathy.
By decision dated August 13, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that an injury occurred on April 9, 2018, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

3

Supra note 1.

2

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 determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient medical evidence to establish that the employment incident
caused a personal injury.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on April 9, 2018, as alleged.
On her Form CA-1, appellant noted that on April 9, 2018 she sustained a strain to her
middle back. No other information or statement clarifying what employment duties were involved
to have caused her claimed back injury on April 9, 2018 was provided. Appellant did not identify
specific employment factors alleged to have caused her condition. She failed to provide any
description or details of the alleged April 9, 2018 incident sufficient to determine the
circumstances surrounding her injury.9
The only explanation provided pertaining to the claimed September 19, 2017 traumatic
incident was information provided by Dr. Barone who noted that appellant felt something push on
her belly while lifting tubes full of mail.
In a development letter dated June 15, 2018, OWCP informed appellant that the evidence
of record was insufficient as she had not sufficiently described the employment factors alleged to
have caused her injury. It asked her to describe those alleged work factors in detail, but she did
not respond to the request for additional specific factual information.10 Accordingly, as she failed
to present a clear factual statement identifying specific employment factors or conditions alleged

4

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

5

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

6

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

K.S., Docket No. 17-2001 (issued March 9, 2018).

10

K.S., id.; see also K.W., Docket No. 16-1656 (issued December 15, 2016).

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to have caused or contributed to her claimed medical condition, appellant has not met her burden
of proof.11
As the evidence of record does not to sufficiently describe the employment incident and
circumstances surrounding her alleged injury, the Board finds that appellant has not established
that the traumatic injury occurred in the performance of duty on April 9, 2018, as alleged.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on April 9, 2018, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 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

11

See D.C., Docket No. 18-0082 (issued July 12, 2018); D.D., 57 ECAB 734 (2006).

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