United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Carmel, CA, Employer
__________________________________________

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

Docket No. 19-0868
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On March 18, 2019 appellant filed a timely appeal from January 11 and March 1, 2019
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 to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish disability
from work during the period April 24, 2018 through January 10, 2019, causally related to his
accepted September 27, 2017 employment injury; (2) whether OWCP has met its burden of proof
to terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the March 1, 2019 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury; and (3) whether appellant has met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
FACTUAL HISTORY
On September 27, 2017 appellant, then a 60-year-old clerk/lobby director, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he injured his lower back when he slipped
and fell as he walked from a pickup window while in the performance of duty. He stopped work
on September 28, 2017.
On November 27, 2017 OWCP accepted appellant’s claim for contusions of the lower back
and pelvis, initial encounter. It paid him wage-loss compensation on the supplemental rolls from
November 12, 2017 to March 2, 2018 and on the periodic rolls from March 4 to 31, 2018.
On March 28, 2018 appellant returned to a part-time modified position for five hours per
day as a clerk, but later stopped work on April 24, 2018.
OWCP received an April 26, 2018 progress note by Dr. Dale A. Helman, a Board-certified
neurologist, who noted a history of injury that approximately seven months prior, appellant slipped
and fell backwards and severely twisted his lumbar spine at work . Dr. Helman reported findings
on physical examination and provided an impression that it was “very likely there is some sort of
nerve impingement.” He performed an electromyogram/nerve conduction velocity (EMG/NCV)
study on the same date of his examination and reported that it was abnormal due to right L5-S1
radiculopathy.
On May 11, 2018 appellant filed a claim for compensation (Form CA-7) seeking for
disability from work from April 24 through May 4, 2018.
In support of his claim, appellant submitted medical reports dated April 24, 2018 from
Dr. Timothy Wilken, an attending family practitioner. In these reports, Dr. Wilken noted a history
of appellant’s September 27, 2017 employment injury and diagnosed lumbar radiculopathy,
lumbar and cervical strains, contusion of the lumbar region, and low back pain. He advised that
he was unable to work until his next scheduled appointment in four weeks.
OWCP, in a May 21, 2018 development letter, informed appellant that the evidence
submitted was insufficient to establish disability from April 24 to May 4, 2018 and requested that
he submit additional evidence to establish his claim. It afforded him 30 days to submit the
necessary evidence.
OWCP received an additional report dated May 22, 2018 by Dr. Wilken who reiterated
appellant’s history of injury and repeated his prior diagnoses of lumbar radiculopathy, lumbar and
cervical strains, contusion of the lumbar region, and low back pain. Additionally, Dr. Wilken
continued to advise that appellant was unable to work until his next scheduled appointment in four
weeks.
Appellant filed additional CA-7 forms claiming compensation for disability from work
from May 4 to 31, and June 2 to 30, 2018.
2

In support of his claims, appellant submitted a May 22, 2018 duty status report (Form CA17) from Dr. Wilken who provided diagnoses “due to injury” of lumbar and cervical strains.
Dr. Wilken placed appellant off work.
By development letter dated July 9, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish his claims for disability compensation commencing
April 24, 2018, but that he would be referred to a second opinion examination by a Board-certified
specialist.
OWCP thereafter received a July 5, 2018 EMG/NCV study by Dr. Helman, who reported
bilateral C6-7 radiculopathy and bilateral carpal tunnel syndrome.
On July 16, 2018 OWCP referred appellant’s claim, the case record, a statement of
accepted facts (SOAF), and a series of questions to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether he continued to have
residuals and disability causally related to his accepted September 27, 2017 employment injury.
In narrative reports and a Form CA-17 report dated July 17, 2018, Dr. Wilken reiterated
his prior assessments of appellant’s lumbar and cervical conditions and opinion that he was unable
to work. He also provided a diagnosis of herniated lumbar disc with myleopathy. In the Form
CA-17 report, Dr. Wilken again provided diagnoses of cervical and lumbar strains “due to injury.”
Appellant continued to file CA-7 forms claiming compensation for disability from work
from July 28 to August 24, 2018.
In support thereof, appellant submitted reports dated June 19 and August 14, 2018 from
Dr. Wilken, who continued to restate his prior assessments of appellant’s lumbar and cervical
conditions and opinion that he could not work. On an August 14, 2018 Form CA-17 report
Dr. Wilken listed the date of injury as September 27, 2017 and again reiterated his prior diagnosis
of herniated lumbar disc with myelopathy “due to injury.”
In a July 26, 2018 report, Dr. Mark W. Howard, a Board-certified orthopedic surgeon,
noted that appellant presented for consultation regarding lumbar spine problems he had since
September 27, 2017. He discussed his examination findings and reviewed diagnostic test results.
Dr. Howard provided diagnoses of low back pain and bilateral lower extremity radicular pain in
the setting of mod-large right L4-5 disc bulge, L5-S1 disc degeneration, right L4 greater than right
L5 foraminal stenosis, left L5 greater than left L4 foraminal stenosis, L5 -S1 greater than L4-5
spondylolisthesis with demonstrated sagittal plane instability, and right L5-S1 radiculopathy based
on Dr. Helman’s April 26, 2018 EMG/NCV study.
Dr. Swartz, in an August 8, 2018 report, reviewed the SOAF and appellant’s medical
record. He reported his findings on examination and diagnosed lumbar and cervical strains, lumbar
contusion, and lumbar radiculopathy. Dr. Swartz noted that a February 8, 2018 magnetic
resonance imaging (MRI) scan study of the lumbar spine revealed no signal abnormalities of the
lumbar spine or spinal cord/cauda equine, and no paravertebral soft tissue abnormality, marrow
replacing lesion, or marrow edema, which indicated that appellant’s claim of hitting his low back
against a pole when he fell was in question and would be a minor event at most as none of these
signals showed up on the MRI scan study reflecting a contusion of any significance. He indicated
that an examination by Dr. Wilken on October 10, 2017 did not reveal any muscle spasm in the
3

lumbar spine which would basically rule out an injury of any significance whether it was a strain
or contusion. Dr. Swartz further indicated that his examination revealed a normal range of motion
of the lumbar spine, slight tenderness only and without any spasm in the neck and upper or lower
back, and normal neurologic examination of the lower extremities. He opined that the injuries
regarding appellant’s claim had resolved, and no further treatment was required. Dr. Swartz
further opined that he had an aggravation of preexisting lumbar conditions that ceased on the date
of his examination. He concluded that appellant was capable of returning to his position as a
clerk/lobby director which was basically his date-of-injury position. In an accompanying work
capacity evaluation (Form OWCP-5c) of even date, Dr. Swartz advised that appellant could not
perform his usual job without restrictions, but he could work eight hours per day with specific
physical restrictions.
Appellant filed several additional CA-7 forms claiming compensation for intermittent
periods of disability from August 25 to December 14, 2018.
In additional narrative reports and Form CA-17 reports dated June 19, August 14,
September 11, October 9, and November 6, 2018, Dr. Wilken reiterated his prior lumbar and
cervical assessments and opinion that appellant was unable to work. In the October 9 and
November 6, 2018 Form CA-17 reports, he continued to list the date of injury as September 27,
2017, indicate that appellant’s diagnoses of herniated lumbar disc, lumbar strain with
radiculopathy, and cervical strain were “due to injury,” and advise that he was unable to work.
Dr. Howard, in an August 14, 2018 report, reiterated his prior diagnoses of low back pain,
bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy based on Dr. Helman’s April 26, 2018 EMG/NCV
study.
In a November 11, 2018 report, Dr. Scott Prysi, a family practitioner, noted a date of injury
as September 27, 2017. He discussed findings on examination and provided diagnoses of lumbar
radiculopathy, lumbar strain, lumbar region contusion, and low back pain. Dr. Prysi advised that
appellant could perform modified work with restrictions until his next scheduled appointment.
On November 21, 2018 Dr. Victor Li, Board-certified in pain medicine, reported a history
of the September 27, 2017 employment injury. He also reported examination findings and
reviewed diagnostic test results. Dr. Li provided diagnoses of myofascial pain, and spondylosis
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary.
By notice dated December 11, 2018, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits based on Dr. Swartz’s opinion that the accepted
conditions had ceased without residuals and that he was not disabled from work. It afforded him
30 days to submit additional evidence or argument challenging the proposed action.
OWCP subsequently received narrative reports and a Form CA-17 dated December 17,
2018 from Dr. Prysi who restated his prior diagnoses of lumbar radiculopathy, lumbar strain,
lumbar region contusion, and low back pain, and his opinion that appellant could perform modified
work until his next scheduled appointment. In the December 17, 2018 Form CA-17 report,
4

Dr. Prysi listed September 27, 2017 as the date of injury and provided diagnoses of lumbar spine
strain and radiculopathy “due to injury.” He advised that appellant could work with restrictions.
In a letter of even date, Dr. Prysi noted that he had reviewed Dr. Swartz’s August 8, 2018 report3
and disagreed with his findings. He noted that appellant had a baseline pain level of 7 out of 10
and he was unable to sit or stand for more than 30 minutes. Dr. Prysi further noted that, based on
his physical examination, he could not lift more than 10 pounds at work. He maintained that it
was not possible for appellant to return to full-duty work.
OWCP also received a September 27, 2017 lumbar spine x-ray report by Dr. Tracy Chen,
a diagnostic radiologist, who provided impressions of no acute osseous pathology, grade 1
anterolisthesis of L5-S1, degenerative disc disease at L5-S1, and mild multilevel degenerative
arthrosis.
By decision dated January 11, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, finding that Dr. Swartz’s opinion was
entitled to the weight of the medical evidence.
OWCP thereafter received an additional Form CA-17 report dated January 14, 2019 from
Dr. Prysi. Dr. Prysi continued to note September 27, 2017 as the date of injury, provide a diagnosis
of lumbar strain “due to injury,” and opine that appellant could work with restrictions.
On January 6, 2019 appellant filed another Form CA-7 seeking compensation for disability
from December 14, 2018 to January 11, 2019. On the reverse side of the claim form the employing
establishment noted that he did not sign its job offer for modified work. 4
Dr. Prysi, in a January 14, 2019 narrative report, restated appellant’s lumbar assessments
and opinion that he could perform modified work until his next scheduled appointment.
In a January 16, 2019 progress report, Dr. Li diagnosed contusion of the lower back. He
noted that appellant did not work and restated his prior opinion that appellant’s work status was
permanent and stationary.
OWCP, by decision dated March 1, 2019, denied appellant’s claims for compensation for
the period April 24, 2018 through January 10, 2019, finding that the medical evidence of record
was insufficient to establish that the claimed disability was causally related to his accepted
September 27, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
3

The Board notes that it appears that Dr. Prysi inadvertently indicated that the date of Dr. Swartz’s report was dated
November 19, 2018 rather than August 8, 2018 as the only report of record by Dr. Swartz is dated August 8, 2018.
4

On January 18, 2019 the employing establishment offered appellant a modified clerk position based on the medical
documentation from his treating physician. Appellant rejected the job offer contending that it did not meet his
physician’s restrictions.
5

Supra note 1.

5

compensation is claimed is causally related to the employment injury.6 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.7 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.8
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.9 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.10
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.11 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the claimed disability and the accepted employment injury.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury.
In support of his claims for compensation, appellant submitted a series of reports from
Dr. Wilken. In Form CA-17 reports dated May 22 through November 6, 2018, Dr. Wilken noted
diagnoses of herniated lumbar disc, lumbar strain with radiculopathy, and cervical strain “due to
injury” on September 27, 2017. Although he found employment-related disability in these reports,
they are of limited probative value in establishing appellant’s claim for disability during the period
April 24, 2018 through January 10, 2019 as he did not explain why he was disabled during this
time period due to objective medical findings of his accepted conditions. To establish a period of
disability the medical evidence must provide a discussion of how objective medical findings
attributable to the accepted conditions support a finding that appellant could not perform his job
6

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020);
F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
8

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

9

Id. at § 10.5(f); see e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

11

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

12

Id

6

duties.13 A medical opinion is of limited value if it is conclusory in nature. 14 In narrative reports
dated April 24 through November 6, 2018, Dr. Wilken reiterated his prior nonaccepted diagnoses
of lumbar radiculopathy, lumbar strain, cervical strain, herniated lumbar disc. He also diagnosed
contusion of the lumbar region and low back pain. Dr. Wilken opined that appellant was totally
disabled from work. However, he did not relate appellant’s disability to the accepted
September 27, 2017 employment injury and the opinion is therefore of diminished probative
value.15 For these reasons, the Board finds that Dr. Wilken’s reports are insufficient to establish
appellant’s disability claim.
Dr. Helman’s April 26, 2018 progress note related a history of the September 27, 2017
employment injury and indicated that it was “very likely there is some sort of nerve impingement”
of the lumbar spine. The Board finds his opinion is speculative and equivocal and therefore,
insufficient to establish her burden of proof. 16
In reports dated April 26 and July 5, 2018, Dr. Helman provided EMG/NCV study results.
The Board has consistently held that diagnostic test studies, standing alone, lack probative value
as they do not address whether the accepted employment injury caused the diagnosed condition.17
For these reasons, the Board finds that the medical evidence from Dr. Helman is insufficient to
establish appellant’s disability claim.
Dr. Howard’s July 26 and August 14, 2018 reports provided diagnoses of low back pain
and bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy. He noted that appellant had lumbar spine problems
since September 27, 2017. Dr. Li, in a report dated November 21, 2018, noted a history of the
September 27, 2017 employment injury and provided diagnoses of myofascial pain, spondylosis,
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary. Neither physician offered an opinion as to whether appellant was disabled from
work due to the accepted employment injury.18 Accordingly, the reports of Dr. Howard and Dr. Li
are of no probative value and are insufficient to establish the claimed period of disability.

13

See M.M., Docket No. 19-0061 (issued November 21, 2019); W.E., Docket No. 17-0451 (issued
November 20, 2017).
14

See R.B., Docket No. 19-1527 (issued July 20, 2020); R.S., Docket No. 19-1774 (issued April 3, 2020).

15

See J.K., Docket No. 19-0488 (issued June 5, 2020); M.M., supra note 13; E.B., Docket No. 17-0875 (issued
December 13, 2018).
16

See G.H., Docket No. 20-0892 (issued July 9, 2021); I.J., 59 ECAB 408 (2008).

17

See T.G., Docket No. 20-0032 (issued November 10, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019).

18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

7

Dr. Chen’s September 27, 2017 lumbar spine x-ray report is insufficient to establish
disability as it predates and, therefore, does not address the claimed period of disability. 19
Dr. Swartz, the second opinion physician, in an August 8, 2018 report and Form OWCP5c, opined that appellant’s accepted September 27, 2017 employment-related conditions and
aggravation of preexisting lumbar conditions had resolved and no further treatment was required.
He further opined that appellant was not totally disabled from work and he was capable of returning
to his clerk/lobby director position. Dr. Swartz reasoned that a February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his essentially normal
examination findings, with the exception of slight tenderness, revealed no objective residuals of
the accepted conditions. As Dr. Swartz reviewed the medical record and supported his conclusion
with medical rationale, the Board finds that his report represents the weight of th e evidence
regarding appellant’s claims for total disability.20
Dr. Prysi reviewed Dr. Swartz’s August 8, 2018 report, and in a December 17, 2018 letter,
disagreed with his conclusion that appellant could return to full-duty work because his pain level
and inability to sit or stand for more than 30 minutes and lift more than 10 pounds at work
prevented him from returning to work. His November 11 and December 17, 2018 narrative reports
provided diagnoses of lumbar radiculopathy, lumbar strain, lumbar region contusion, and low back
pain. Dr. Prysi also provided appellant’s work restrictions but did not opine that he was ever totally
disabled from work for the claimed period due to his September 27, 2017 employment injury.21
His remaining December 17, 2018 Form CA-17 report reiterated his diagnoses of lumbar spine
strain and lumbar radiculopathy and found that the diagnosed conditions were due to the
September 27, 2017 employment injury. Dr. Prysi did not, however, provide an opinion or specify
that appellant’s ability to perform modified-duty work was due to his September 27, 2017
employment injury.22 For these reasons, his reports are insufficient to overcome the weight
accorded to Dr. Swartz’s second opinion report or to create a conflict in the medical opinion
evidence.23
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period April 24, 2018 through January 10, 2019 causally related to his accepted
September 27, 2017 employment injury, the Board finds that appellant has not met his burden of
proof.

19

See M.L., Docket Nos. 18-1058 and 18-1224 (issued November 21, 2019); D.J., Docket No. 18-0200 (issued
August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).
20
21

See M.L., id.
Supra note 18.

22

See M.M., Docket No. 18-0817 (issued May 17, 2019); see also supra note 18.

23

See id.

8

LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.24 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 25 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background. 26
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 27 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 11, 2019, as he no longer had disability or
residuals causally related to his accepted September 27, 2017 employment injury.
As previously discussed, Dr. Swartz, in his comprehensive August 8, 2018 second opinion
report, explained that there were no objective findings based on the February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his own essentially
normal examination findings which supported ongoing residuals or disability due to appellant’s
accepted September 27, 2017 employment injury. He opined that appellant could return to his
clerk/lobby director position and he did not require further medical treatment.
Subsequent to Dr. Swartz’s evaluation, appellant was evaluated by Dr. Wilken on
September 11, 2018, Dr. Howard on August 14, 2018, Dr. Li on November 21, 2018, and Dr. Prysi
on November 11 and December 17, 2018. As previously discussed, none of these physicians
provided a well-reasoned explanation as to why appellant continued to have residuals or disability
for work due to the September 27, 2017 employment injury.
Appellant submitted Dr. Chen’s September 27, 2017 lumbar spine x-ray report and
Dr. Helman’s April 26, 2018 EMG/NCV study report. The Board has held, however, that

24

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
25

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
26

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

27

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

28

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

9

diagnostic studies, standing alone, lack probative value on the issue of causal relationship as they
do not address whether the implicated employment factors caused the diagnosed conditions. 29
The Board finds Dr. Swartz’s well-rationalized opinion to be probative evidence and
reliable and sufficient to justify OWCP’s termination of wage-loss compensation and medical
benefits, effective January 11, 2019.30 The medical evidence from appellant’s physicians is
insufficient to overcome the weight accorded to Dr. Swartz’s second opinion or to create a
conflict.31 OWCP, therefore, has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury. 32 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and
the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship.33
ANALYSIS -- ISSUE 3
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
Subsequent to the termination of his wage-loss compensation and medical benefits,
appellant submitted reports dated January 14, 2019 from Dr. Prysi. In a January 14, 2019 Form
CA-17 report, Dr. Prysi diagnosed lumbar strain due to the September 27, 2017 employment injury
and advised that appellant could work with restrictions. In a narrative report of even date, he
restated his prior diagnoses of lumbar radiculopathy, strain, and contusion, and low back pain.
Dr. Prysi also reiterated his prior opinion that appellant could perform modified work. However,
he failed to explain with rationale why the work restrictions were causally related to the
September 27, 2017 employment injury.34 Consequently, Dr. Prysi’s reports are of diminished
probative value and insufficient to establish continuing employment-related residuals or disability.
In his January 16, 2019 progress report, Dr. Li diagnosed lower back contusion. He
indicated that appellant did not work and again opined that appellant’s work status was permanent
29

See J.H., Docket No. 17-1916 (issued January 9, 2019); T.H., Docket No. 17-0025 (issued July 6, 2017).

30

V.D., Docket No. 19-0979 (issued February 5, 2020); T.W., Docket No. 18-1573 (issued July 19, 2019); M.C.,
Docket No. 18-1199 (issued April 5, 2019); see also A.C., Docket No. 16-1670 (issued April 6, 2018).
31

See M.M., supra note 13.

32

See J.N., Docket No. 20-1030 (issued November 20, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
L.C., Docket No. 18-1759 (issued June 26, 2019).
33

Id.

34

See D.Y., Docket No. 20-0112 (June 25, 2020).

10

and stationary. Dr. Li did not, however, provide a rationalized opinion as to whether appellant’s
disability was causally related to the accepted employment injury. The Board has held that a
medical report is of limited probative value on a given medical issue if it contains a medical
opinion which is unsupported by medical rationale. 35
Appellant has not submitted rationalized medical evidence establishing continuing
employment-related disability or residuals on or after January 11, 2019 due to the accepted
September 27, 2017 employment injury. As such, the Board finds that he has not met his burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury. The Board further finds that OWCP has met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury. The Board also finds that appellant has not met his burden of proof to establish
continuing employment-related disability or residuals on or after January 11, 2019 due to his
accepted employment injury.

35

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

11

ORDER
IT IS HEREBY ORDERED THAT the January 11 and March 1, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 2022
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Deltona, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1077
Issued: December 18, 2020

Case Submitted on the Record

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

JURISDICTION
On April 27, 2020 appellant, through counsel, filed a timely appeal from a January 22,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 22, 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability for the
period January 6, 2013 through December 31, 2018 causally related to her accepted March 16,
2010 employment injury.
FACTUAL HISTORY
On March 18, 2010 appellant, then a 60-year-old temporary census enumerator, filed a
traumatic injury claim (Form CA-1) alleging that on March 16, 2010 she injured her back and left
lower extremity when she stepped on a mat which collapsed and caused her to fall in a twisting
motion while in the performance of duty. OWCP initially accepted her claim for a lumbar strain.
Appellant stopped work on March 16, 2010 and returned to work the next day. Her temporary
employment with the employing establishment ended on May 30, 2010.
On August 3, 2010 appellant filed a notice of recurrence (Form CA-2a) alleging a
recurrence of the need for medical care to treat her accepted March 16, 2010 employment injury.
She advised that the pain in her back and left lower extremity had never stopped and noted that
she had been working for the city of Lake Mary, Florida, as manager of the farmer’s market each
Saturday since January 2009.
OWCP reopened appellant’s claim for the receipt of medical benefits and, on February 22,
2011, it expanded the acceptance of her claim to include aggravation of left tarsal tunnel syndrome
based on the opinion of Dr. David B. Lotman, a Board-certified orthopedic surgeon acting as
second opinion examiner.
Appellant submitted an August 25, 2017 report from Dr. Robert Reppy, an osteopath
Board-certified in family medicine, who discussed appellant’s factual and medical history,
including the mechanism of her March 16, 2010 accident and the subsequent medical treatment
she received. Dr. Reppy noted that appellant reported that she fell on March 16, 2010, with her
left leg twisting behind her and that she felt snapping sensations a few inches above her left knee
and a few inches above her left ankle. He advised that appellant’s current reported symptoms
included burning sensation in her left leg/foot with pain and burning sensation extending up her
left lower extremity. Dr. Reppy indicated that medical evaluators diagnosed appellant with such
conditions as left tarsal tunnel syndrome, lumbar spine syndrome, and left lumbar radiculopathy.
He opined that appellant’s diagnoses from the March 16, 2010 accident were lumbar
radiculopathy, intervertebral lumbar disc disorder, and tarsal tunnel syndrome.
In a February 9, 2018 letter to OWCP, appellant claimed that her March 16, 2010
employment injury had never been completely diagnosed until she had been evaluated by
Dr. Reppy. Appellant asserted that her employment injury prevented her from leading a normal
life.
Appellant submitted an August 10, 2018 report from Dr. Reppy who noted that her chief
complaints were low back pain and left leg pain (mostly distal from the knee). Dr. Reppy noted
that she exhibited a mildly antalgic gait and that lumbar range of motion was decreased in all axes.
He diagnosed tarsal tunnel syndrome and spinal stenosis at L2-3.

2

In September 14, October 12, and November 16, 2018 reports, Dr. Reppy diagnosed tarsal
tunnel syndrome, spinal stenosis at L2-3, osteoarthritis of the metatarsals of the left foot,
chondromalacia (grade 4) of the left knee with severe cartilage loss at the patellafemoral
compartment, and tears of the peroneus brevis tendon, anterior talofibular ligament, and
calcanofibular ligament.
On April 30, 2019 appellant filed a claim for compensation (Form CA-7) alleging that her
March 16, 2010 employment injury caused disability from work for the period January 6, 2013
through December 31, 2018.
In a May 20, 2019 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her disability claim, including a physician’s report
supported by a medical explanation of the relationship between her claimed disability and the
March 16, 2010 employment injury. It requested that she complete and return an enclosed
questionnaire. OWCP afforded appellant 30 days to submit the requested evidence.
In response, appellant submitted an undated letter, received by OWCP on June 24, 2019,
in which she further described her March 16, 2010 employment injury and its effect on her ability
to work on and after January 6, 2013.
Appellant also submitted a May 24, 2019 report from Dr. Mark D. Bornstein, a podiatrist,
who discussed appellant’s factual and medical history, including the nature of her March 16, 2010
accident at work and her subsequent medical treatment. Dr. Bornstein reported physical
examination findings, noting that the examination was positive for tarsal tunnel syndrome. He
indicated that appellant had tarsal tunnel syndrome in her left foot as a result of the March 16,
2010 accident and opined that her favoring of her right foot led to the development of tarsal tunnel
syndrome in her right foot. Dr. Bornstein noted that the inability to bear weight will cause
signiﬁcant problems in other areas of the body and that it was common for an altered gait to lead
to low back problems. He noted that appellant did have low back problems at the time of the
March 16, 2010 accident, and indicated that her foot problems over the past several years
aggravated this problem. Dr. Bornstein noted that he had prescribed a boot for appellant’s left foot
and that surgery was the next step if this treatment failed. He advised that a recent magnetic
resonance imaging (MRI) scan showed cartilage damage in the left ankle and foot, which he
believed was consistent with her March 16, 2010 employment injury and its sequelae.
Dr. Bornstein advised that appellant had bilateral tarsal tunnel syndrome as a result of her
March 16, 2010 accident, and indicated that her altered gait from the tarsal tunnel syndrome led to
an aggravation of her low back condition and knee problems. He opined that appellant would have
been restricted from the time of her March 16, 2010 injury, and she would not have been able to
engage in prolonged standing or walking (no more than 30 minutes). Moreover, any employment
would have needed to be sedentary (sitting six out of eight hours). Dr. Bornstein indicated that
appellant would not have been able to perform her job at the employing establishment. He noted
that he would place appellant completely off of work in order to start the aggressive treatment that
she never had.
In a June 7, 2019 report, Dr. Reppy noted that, although appellant favored her left foot due
to her left tarsal tunnel syndrome and back problems from her March 16, 2010 accident, constant
weight-bearing on her left foot caused the acceleration of arthritis in her left foot and knee. He
noted that appellant was not able to work for the employing establishment after 2010 and indicated
that she would not have been able to perform her job at the employing establishment due to
3

continuous walking. Dr. Reppy noted that, by the time he saw her, appellant “would be on a nowork status as we did diagnostic testing and work-up.” He indicated that Dr. Bornstein also placed
appellant on no-work status for surgical considerations. Dr. Reppy provided a similar opinion in
a report dated June 28, 2019.
By decision dated July 30, 2019, OWCP denied appellant’s disability claim, finding that
she had not met her burden of proof to establish disability for the period January 6, 2013 through
December 31, 2018, causally related to her accepted March 16, 2010 employment injury. It
determined that she had not submitted sufficient medical evidence to establish her claim. OWCP
noted that Dr. Reppy’s opinion on causal relationship is “simply too far removed from the onset
of disability to be of probative value in establishing injury-related disability.”
On August 9, 2019 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review.
Appellant submitted an August 16, 2019 report, in which Dr. Reppy reported examination
findings and diagnosed tarsal tunnel syndrome, spinal stenosis at L2-3, osteoarthritis of the
metatarsals of the left foot, chondromalacia (grade 4) of the left knee with severe cartilage loss at
the patellafemoral compartment, and tears of the peroneus brevis tendon, anterior talofibular
ligament, and calcanofibular ligament. Dr. Reppy indicated that he disagreed with OWCP’s
July 30, 2019 decision denying appellant’s disability claim. He noted that appellant’s left
leg/ankle problems took years to diagnosis and opined that any delay in properly evaluating
appellant’s medical condition was due to OWCP’s “own actions or lack thereof.” In a
September 12, 2019 report, Dr. Reppy again indicated that he disagreed with OWCP’s July 30,
2019 decision. He noted that, in February 2011, appellant’s accepted conditions were expanded
to include left tarsal tunnel syndrome and noted that, because this condition provided a credible
explanation for appellant’s left leg symptoms, no one looked any closer and missed the tears of
her peroneus brevis tendon, anterior talo fibular ligament, and calcano fibular ligament.
During the hearing held on November 8, 2019, appellant testified that her actual job title
while working for the employing establishment was recruiting assistant rather than enumerator.
She advised that, while working for the employing establishment, she was able to perform a lot of
her work from home while in a reclining position. Appellant explained that she also was able to
work in a reclining position for much of the time she worked one day per week as manager of a
farmer’s market, a position she had not held since 2013. She indicated that she was claiming wageloss compensation for disability from work commencing January 6, 2013 due to residuals of her
March 16, 2010 employment injury.
After the hearing, appellant submitted a December 20, 2019 report in which Dr. Reppy
provided a summary of the care appellant received and noted that he concurred with appellant’s
prior physicians, including Dr. Bornstein, as to her work status. Dr. Reppy noted that he agreed
with Dr. Bornstein’s May 24, 2019 opinion that appellant would have been restricted from the time
of her March 16, 2010 injury and would not have been able to do any prolonged standing or
walking (no more than 30 minutes). He noted that he also agreed with Dr. Bornstein that appellant
should have been completely off work after the May 24, 2019 evaluation in order to begin
aggressive treatment. Dr. Reppy diagnosed bilateral tarsal tunnel syndrome, spinal stenosis at
L2-3, osteoarthritis of the metatarsals of the left foot, chondromalacia (grade 4) of the left knee
with severe cartilage loss at the patellafemoral compartment, and tears of the peroneus brevis
tendon, anterior talofibular ligament, and calcanofibular ligament. He maintained that these
4

conditions were related to the March 16, 2010 employment injury, noting that lack of treatment
aggravated all the conditions in appellant’s left leg.
By decision dated January 22, 2020, OWCP’s hearing representative affirmed the July 30,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.5 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.6 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.7 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages.8
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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 claimed disability and the accepted employment injury.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.10

4

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

5

20 C.F.R. § 10.5(f).

6

See L.W., Docket No. 17-1685 (issued October 9, 2018).

7

See K.H., Docket No. 19-1635 (issued March 5, 2020).

8

See D.R., Docket No. 18-0323 (issued October 2, 2018).

9

Y.S., Docket No. 19-1572 (issued March 12, 2020).

10

J.B., Docket No. 19-0715 (issued September 12, 2019).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability for
the period January 6, 2013 through December 31, 2018 causally related to her accepted March 16,
2010 employment injury.
In support of her disability claim, appellant submitted a May 24, 2019 report from
Dr. Bornstein who indicated that appellant had tarsal tunnel syndrome in her left foot as a result
of the March 16, 2010 accident and opined that her favoring of her right foot led to the
development of tarsal tunnel syndrome in her right foot. Dr. Bornstein advised that a recent MRI
scan showed cartilage damage in the left ankle and foot, which he believed was consistent with
her March 16, 2010 employment injury and its sequelae. He advised that appellant had bilateral
tarsal tunnel syndrome as a result of her March 16, 2010 accident, and indicated that the altered
gait from the tarsal tunnel syndrome led to an aggravation of her low back condition and knee
problems. Dr. Bornstein opined that appellant would have been restricted from the time of her
March 16, 2010 injury, and that she would not have been able to do any prolonged standing or
walking (no more than 30 minutes). Moreover, any employment would have needed to be
sedentary in nature (sitting six out of eight hours). Dr. Bornstein asserted that appellant would not
have been able to perform her job at the employing establishment. He noted that he would have
appellant completely off of work in order to start the aggressive treatment that she never had.
The Board finds that Dr. Bornstein’s opinion is of limited probative value regarding
appellant’s claim of disability for the period January 6, 2013 through December 31, 2018 causally
related to the accepted March 16, 2010 employment injury because Dr. Bornstein did not provide
adequate medical rationale in support of his opinion on causal relationship. It is noted that
Dr. Bornstein attributed appellant’s disability, at least in part, to conditions that have not been
accepted as related to the March 16, 2010 accident, including right tarsal tunnel syndrome and
degenerative disease of the left knee. Dr. Bornstein has not provided adequate medical rationale
to establish that these conditions are employment related. Nor has he explained how disability
would have been caused by the only conditions accepted in the present case, i.e., left knee strain
and aggravation of left tarsal tunnel syndrome. Such medical rationale is particularly necessary in
the present case given that Dr. Bornstein did not begin treating appellant until years after she
sustained her March 16, 2010 employment injury. The Board notes that the case record lacks
medical records for long periods after March 16, 201011 and Dr. Bornstein did not adequately
discuss bridging evidence, which would support his opinion of extended periods of disability
related to the March 16, 2010 employment injury.12 Dr. Bornstein did not adequately explain why
any period of disability would not have been due to some nonwork-related condition, such as the
natural progression of appellant’s preexisting tarsal tunnel syndrome condition or the degenerative
condition of her left knee. The Board has held that a report is of limited probative value regarding
causal relationship if it does not contain medical rationale explaining how a given medical

11

For example, the case record contains no medical reports produced between September 7, 2012 and
August 25, 2017.
12

V.H., Docket No. 18-0456 (issued August 9, 2019); J.D., Docket No. 16-0064 (issued June 1, 2016) (regarding
the importance of providing bridging medical evidence to establish a given period of disability).

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condition/period of disability has an employment-related cause.
May 24, 2019 report is insufficient to establish appellant’s claim.13

Therefore, Dr. Bornstein’s

In a June 7, 2019 report, Dr. Reppy noted that, although appellant favored her left foot due
to her left tarsal tunnel syndrome and back problems from her March 16, 2010 accident, constant
weight-bearing on her left foot caused the acceleration of arthritis in her left foot and knee. He
noted that appellant was not able to work for the employing establishment after 2010 and indicated
that she would not have been able to perform her job at the employing establishment due to the
need for continuous walking. Dr. Reppy noted that, by the time he saw her, appellant “would be
on a no-work status as we did diagnostic testing and work-up.” He indicated that Dr. Bornstein
also placed appellant on no-work status for surgical considerations. Dr. Reppy provided a similar
opinion in a report dated June 28, 2019.
The Board finds that these reports also are of limited probative value regarding appellant’s
claim of disability for the period January 6, 2013 through December 31, 2018 causally related to
the accepted March 16, 2010 employment injury because Dr. Reppy did not provide adequate
medical rationale in support of his opinion on causal relationship. The Board notes that
Dr. Reppy’s reports have deficiencies, which are similar to those of Dr. Bornstein’s May 24, 2019
report. Dr. Reppy also attributed appellant’s disability to conditions, which have not been accepted
as related to the March 16, 2010 employment injury, including degenerative conditions of the left
foot and knee. He also did not begin treating appellant until years after she sustained her March 16,
2010 employment injury and failed to provide adequate bridging evidence. Dr. Reppy did not
describe the medical process through which the accepted conditions, lumbar strain and aggravation
of left tarsal tunnel syndrome, could have been responsible for the claimed period of disability.
In an August 16, 2019 report, Dr. Reppy indicated that he disagreed with OWCP’s July 30,
2019 decision denying appellant’s disability claim. He noted that appellant’s left leg/ankle
problems took years to diagnosis and opined that any delay in properly evaluating appellant’s
medical condition was due to OWCP’s “own actions or lack thereof.” In a September 12, 2019
report, Dr. Reppy again indicated that he disagreed with OWCP’s July 30, 2019 decision. He
noted that, in February 2011, appellant’s accepted conditions were expanded to include left tarsal
tunnel syndrome and asserted that, because this condition provided a credible explanation for
appellant’s left leg symptoms, no one looked any closer and missed the tears of her peroneus brevis
tendon, anterior talofibular ligament, and calcanofibular ligament. These reports also are of
limited probative value regarding the underlying issue of this case because Dr. Reppy did not
provide any additional medical rationale on the cause of appellant’s disability.14 Dr. Reppy merely
expressed his disagreement with OWCP’s denial of appellant’s disability claim and repeated his
assertion that disability was caused by several conditions which have not been accepted as
employment related.
In a December 20, 2019 report, Dr. Reppy noted that he agreed with Dr. Bornstein’s
May 24, 2019 opinion that appellant would have been restricted from the time of her March 16,
2010 injury and would not have been able to do any prolonged standing or walking (no more than
30 minutes) and that any employment needed to be sedentary in nature (sitting six out of eight
hours). He noted that he also agreed with Dr. Bornstein that appellant should have been completely
13

See T.T., Docket No. 18-1054 (issued April 8, 2020).

14

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

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off work after the May 24, 2019 evaluation in order to begin aggressive treatment. Dr. Reppy
diagnosed bilateral tarsal tunnel syndrome, spinal stenosis at L2-3, osteoarthritis of the metatarsals
of the left foot, chondromalacia (grade 4) of the left knee with severe cartilage loss at the
patellafemoral compartment, and tears of the peroneus brevis tendon, anterior talofibular ligament,
and calcanofibular ligament. He maintained that these conditions were related to the March 16,
2010 employment injury, noting that lack of treatment aggravated all the conditions in appellant’s
left leg. This report of Dr. Reppy also is of limited probative value with respect to appellant’s
disability claim because it does not provide any additional medical rationale regarding disability,
but rather only expresses agreement with Dr. Bornstein’s opinion and provides a conclusory
opinion that several conditions were related to the March 16, 2010 employment injury.15
Appellant also submitted other reports of Dr. Reppy dated between August 25, 2017 and
November 16, 2018. However, these reports are of no probative value regarding the underlying
issue of the present case because they do not contain an opinion on disability. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s condition
or disability is of no probative value on the issue of causal relationship.16 Therefore, these reports
are insufficient to establish appellant’s claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
the period January 6, 2013 through December 31, 2018 causally related to her accepted March 16,
2010 employment injury.

15

Id. See also L.G., Docket No. 19-0142 (issued August 8, 2019); C.M., Docket No. 14-0088 (issued April 18, 2014)
(regarding the limited probative value of conclusory opinions on causal relationship).
16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the January 22, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND STATIONS,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1995
Issued: March 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 29, 2011 appellant, through his attorney, filed a timely appeal from an
April 5, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for reconsideration on the grounds that it was untimely and failed to establish
clear evidence of error. The most recent merit review in this case was OWCP’s April 6, 2009
decision denying appellant’s traumatic injury claim. 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 nonmerit decision.2

1
2

5 U.S.C. § 8101 et. seq.

As this appeal was filed more than 180 days after the April 6, 2009 decision, the Board does not have
jurisdiction over the merits of the claim. See 20 C.F.R. § 501.3(e) (for final adverse OWCP decisions issued on and
after November 19, 2008, a claimant has 180 days to file an appeal with the Board).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.
FACTUAL HISTORY
On August 27, 2008 appellant, a 56-year-old tools and parts attendant, filed a traumatic
injury claim alleging that he sustained injuries to his right shoulder, hip and back when he
slipped and fell down a flight of stairs at work on August 25, 2008.
By decision dated December 15, 2008, OWCP denied appellant’s claim on the grounds
that the evidence failed to establish that he had sustained an injury causally related to the claimed
employment incident. In a February 9, 2009 nonmerit decision, it denied appellant’s request for
reconsideration. In an April 6, 2009 merit decision, OWCP denied modification of its
December 15, 2008 decision. Due to inconsistencies in the evidence, it found that the evidence
did not establish that appellant was injured in the manner alleged.3
On May 24, 2010 appellant, through counsel, requested reconsideration. Counsel
contended that medical reports submitted from appellant’s treating physicians established a
causal relationship between his diagnosed shoulder condition and the alleged August 25, 2008
employment incident.
In a December 11, 2009 statement, appellant reiterated that he fell down a set of stairs on
August 25, 2008. He did not report the alleged fall to Dr. Allstadt on August 25, 2008 because
he thought he would recover and just wanted to be released to return to work following hernia
surgery.
Appellant submitted a May 24, 2010 report from Dr. John P. Finley, an attending
physician, who stated that he had treated appellant since April 17, 2009 for problems relating to a
right rotator cuff tear. Dr. Finley stated that the mechanism of falling on the stairs, as described
by appellant, would be consistent with a rotator cuff tear. He opined that the rotator cuff tear
injury was directly related to the August 25, 2008 employment injury.
In a March 26, 2009 report, Dr. Scott L. Silliman, a Board-certified neurologist, related
appellant’s report that he fell at work in August 2008. He provided examination findings and
diagnosed chronic low back pain exacerbated by the fall; neck pain exacerbated by the fall; and
paresthesias of the right hand. Appellant also submitted hospital records relating to the June 29,
2009 rotator cuff repair surgery.
In an April 5, 2011 decision, OWCP denied appellant’s request for reconsideration on the
grounds that it was untimely and failed to establish clear evidence of error.

3

The claims examiner noted that appellant had been examined by Dr. Karen Allstadt, an occupational medicine
physician, immediately following the alleged work injury. In her August 25, 2008 report, Dr. Allstadt did not make
any mention of the claimed work injury, which allegedly occurred just an hour prior to the examination.

2

LEGAL PRECEDENT
FECA provides that the Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.4 OWCP, through its
regulations, has imposed limitations on the exercise of its discretionary authority under section
8128(a). To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
a claimant must file his application for review within one year of the date of that decision.5 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted to OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.7 OWCP regulations and procedures provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 A limited review by OWCP is required to determine
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.13 The
Board makes an independent determination of whether a claimant has submitted clear evidence

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a).

6

Supra note 3. See Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). The term clear evidence of error is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See M.L., Docket No. 09-956 (issued April 15, 2010). See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

3

of error on the part of OWCP such that it abused its discretion in denying merit review in the
face of such evidence.14
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
The one-year time limitation period for requesting reconsideration begins on the date of the
original OWCP decision and upon any subsequent merit decision.15 As appellant’s May 24,
2010 request for reconsideration was submitted more than one year after the April 6, 2009 merit
decision, it was untimely filed. Consequently, he must establish clear evidence of error on the
part of OWCP in the denial of his claim.16
Appellant contended that his claim was improperly denied as he submitted sufficient
medical evidence to support a causal relationship between his diagnosed shoulder condition and
the alleged August 25, 2008 employment incident. This contention does not establish error, but
merely repeats arguments previously raised and considered by OWCP. Counsel’s argument,
based on medical evidence, is not relevant to the issue decided by OWCP, which was factual in
nature. Appellant’s statement as to why he did not inform his physician that he fell down stairs
immediately following his claimed injury is insufficient to establish that OWCP erred when it
found that he failed to establish factually an incident in the manner alleged. His arguments on
reconsideration are insufficient to raise a substantial question concerning the correctness of
OWCP’s denial of his claim or to shift the weight of the evidence in his favor.
The medical reports submitted by appellant are insufficient to establish clear error by
OWCP in denying his claim. Dr. Finley stated that the mechanism of falling on the stairs, as
described by appellant, would be consistent with a rotator cuff tear and opined that the rotator
cuff tear injury was directly related to the August 25, 2008 employment injury. Dr. Silliman
provided examination findings and diagnosed chronic low back pain exacerbated by the claimed
August 2008 fall; neck pain exacerbated by the fall; and paresthesias of the right hand.
Appellant also submitted hospital records relating to the June 29, 2009 rotator cuff repair
surgery. These medical reports, however, are not relevant to the issue decided by OWCP,
namely, whether appellant established factually that the August 25, 2008 incident occurred as
alleged. Therefore, they do not raise a substantial question as to the correctness of OWCP’s
decision.17 The Board finds that appellant did not establish clear evidence of error.
On appeal, counsel argues that the medical evidence submitted establishes clear evidence
of error. For reasons stated, the Board finds that the evidence submitted by appellant in support
of his request for reconsideration fails to establish clear evidence of error on the part of OWCP.

14

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

15

20 C.F.R. § 10.607(a); see Robert F. Stone, 57 ECAB 292 (2005).

16

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

17

The term clear evidence of error is intended to represent a difficult standard. The submission of a detailed,
well-rationalized medical report which, if submitted prior to when the denial was issued, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error. Joseph R. Santos, 57
ECAB 554 (2006).

4

CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cherry Hill, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0023
Issued: July 28, 2015

Case Submitted on the Record

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

JURISDICTION
On October 7, 2014 appellant, through counsel, filed a timely appeal from a July 7, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established a cervical spine injury; and (2) whether
he established a recurrence of disability on and after May 23, 2013 due to the cervical spine
injury.
FACTUAL HISTORY
OWCP accepted that, on March, 6, 2006 appellant, then a 51-year-old custodian,
sustained a right shoulder and upper arm sprain with periosteitis of the right shoulder when he
1

5 U.S.C. §§ 8101-8193.

tripped and fell on an uneven surface. Appellant stopped work on March 6, 2006. He later
revised the history of injury, explaining that on March 6, 2006, he was sent to repair a mailbox in
a brick column that was damaged by a postal vehicle. The column fell on appellant, striking his
right arm and shoulder. Following the injury, he returned to light duty.
Dr. Steven H. Kahn, an attending osteopath Board-certified in orthopedic surgery, in a
March 10, 2006 report diagnosed right rotator cuff inflammation.2 Dr. Charles E. Wilkins, an
attending Board-certified orthopedic surgeon, diagnosed a biceps tendon rupture on
April 26, 2006.3
A September 12, 2007 MRI scan of the cervical spine showed a left C4-5 disc herniation,
and central disc protrusions at C3-4 and C6-7. A September 26, 2007 electromyogram (EMG)
showed chronic C5-6 radiculitis, left C4 radiculitis, moderate bilateral carpal tunnel syndrome,
chronic C8 radiculitis, right worse than left, mild ulnar neuropathy of the left elbow, and a right
biceps tendon rupture.
On December 11, 2007 Dr. Kahn performed arthroscopic debridement of the right biceps
anchor, partial bursectomy, and subacromial decompression of the right shoulder, authorized by
OWCP. He prescribed physical therapy.
In a March 5, 2008 letter, appellant asserted that he developed severe cervical spine pain
due to his history of three herniated discs. He submitted a January 2, 2000 MRI scan of the
cervical spine showing a mild central disc bulge at C7-T1 without disc herniation or canal
stenosis. January 20, 2000 cervical spine x-rays showed minimal degenerative disc disease at
C5-6. Appellant advised Dr. Kahn of his history, and noted the onset of left-sided neck pain on
March 19, 2008 while undergoing physical therapy for his right shoulder.
Dr. Robert Ponzio, an attending osteopath Board-certified in orthopedic surgery,
followed appellant beginning on March 24, 2008. He related appellant’s complaints of left-sided
neck pain and headache beginning the previous week. Dr. Ponzio opined that it was “odd that
[appellant’s] complaints of neck pain began a year and a half after” the March 6, 2006 injury.
He stated that he was “unable to relate his neck pain to this work injury.” Dr. Ponzio diagnosed
multilevel cervical disc protrusions and cervical radiculitis. He reiterated that appellant’s
cervical pathology was unrelated to the work injury.

2

March 6, 2006 right shoulder x-rays were negative.

3

An August 13, 2007 magnetic resonance imaging (MRI) scan of the right humerus showed subscapular
tendinosis and subacromial subdeltoid bursitis. An August 17, 2007 MRI scan of appellant’s right shoulder
demonstrated a tear of the biceps tendon and rotator cuff impingement.

2

Appellant returned to limited duty on March 26, 2008. He continued under medical
treatment with Dr. Laura Ross, an attending osteopath Board-certified in orthopedic surgery. On
June 2, 2008 Dr. Ross diagnosed multilevel cervical disc herniations with upper extremity
radiculitis and radiculopathy.
On June 3, 2008 OWCP obtained a second opinion from Dr. Zohar Stark, a Boardcertified orthopedic surgeon, who opined that appellant’s cervical disco genic disease and C4-5
disc herniation were unrelated to the March 6, 2006 right shoulder injury. It found a conflict of
medical opinion between Dr. Stark, for the government, and Dr. Kahn, for appellant, regarding
the nature and extent of appellant’s condition. To resolve the conflict, OWCP selected Dr.
Howard Zeidman, a Board-certified orthopedic surgeon. In an October 23, 2008 report, Dr.
Zeidman noted that appellant had a history of cervical spine problems dating to 2000, then had
neck pain in March 2008 during physical therapy. He opined that appellant’s neck issues were
unrelated to the accepted right shoulder injury.
In a July 29, 2008 report, Dr. Peter F. Arino, an attending osteopath Board-certified in
anesthesiology, provided a history of a right shoulder injury sustained when trying to prevent a
brick mailbox from falling on him. He noted that appellant developed neck pain “at a later date,”
becoming more intense on March 19, 2008 while lifting a two-pound weight in physical therapy.
Dr. Arino noted an MRI scan and EMG findings showing cervical disc herniations.4 He
diagnosed “[a]cute/chronic neck pain with bilateral cervical radiculitis/radiculopathy secondary
to multiple disc herniations and cervical facet syndrome.” Dr. Arino administered cervical
epidural steroid injections and recommended a surgical consultation
In an August 4, 2008 report, Dr. Ross diagnosed right shoulder impingement syndrome,
multiple cervical disc herniations, radiculopathy into both arms, and bilateral cervical
radiculitis.5
In a February 2, 2009 report, Dr. Steven Mandel, an attending Board-certified
neurologist, noted that EMG and nerve conduction velocity showed left-sided C4 changes,
chronic C5-6 changes, and bilateral carpal tunnel syndrome, unchanged from September 26,
2007 studies. A February 2, 2009 MRI scan of the cervical spine showed a worsening C4-5
left-sided disc herniation, smaller C3-4 and C6-7 herniations.
In a March 1, 2009 report, Dr. Ross reviewed medical records. She opined that
appellant’s cervical spine condition was causally related to the accepted March 6, 2006 right
shoulder injury. Dr. Ross stated that on review of January 2, 2000 and September 12, 2007
cervical MRI scans, the January 2, 2000 MRI scan showed a C6-7 disc bulge predating the
injury. The September 12, 2007 scan after the injury showed a left-sided C4-5 herniation, and
central disc herniation at C3-4 and C6-7. In March 2008, appellant was undergoing physical
4

A July 15, 2008 MRI scan of the right shoulder showed postsurgical status, moderate to pronounced rotator cuff
tendinitis, mild degenerative changes in the glenohumeral joint, a small spingoglenoid notch cyst, and a longitudinal
biceps tendon tear.
5

In September 2009, OWCP had appointed Dr. Larry S. Rosenberg, a Board-certified orthopedic surgeon, to
resolve a conflict of medical opinion between Dr. Kahn, for appellant, and Dr. Stark, for the government. As it had
not provided the complete medical record to Dr. Rosenberg, it did not rely on his opinion.

3

therapy for his shoulder when his head went numb. Dr. Ross found that his injuries were
“permanent in nature and directly related to the accident that occurred on March 6, 2006.
[Appellant] most likely will require cervical spine surgery.” She recommended a neurosurgical
consultation. Dr. Ross provided progress notes through 2011.
In April 6, 2009, April 12, and August 25, 2010 letters, counsel requested that OWCP
expand appellant’s claim to accept a cervical spine injury and authorize recommended surgery.6
In a November 5, 2009 report, Dr. Scott A. Rushton, an attending Board-certified
orthopedic surgeon, noted a “[w]ork injury in 2006 with continued complaints of neck pain.” He
diagnosed a herniated C4-5 disc.
On February 12, 2010 appellant’s postal vehicle was rear-ended by a car driven by
another postal employee. He claimed a traumatic injury under File No. xxxxxx139.7 Dr. Ross
noted on March 25, 2010 that appellant experienced increased neck pain due to the accident.8
OWCP accepted a recurrence of disability commencing July 13, 2010. Appellant
remained off work through August 2011, then worked one to two hours a day limited duty.
Dr. Joan F. O’Shea, an attending Board-certified neurosurgeon, submitted reports from
September 28, 2010 to May 2012 noting a history of the March 2006 right shoulder injury, and
the March 2010 motor vehicle accident. She diagnosed C4-5 and C6-7 disc herniations and
recommended epidural injections. Dr. O’Shea opined that appellant injured his neck in
March 2008 while in physical therapy.
A January 25, 2011 MRI scan of the right shoulder showed that the spingoglenoid cyst
had resolved and the rotator cuff tendinosis had greatly decreased. February 2, 2011 right
shoulder x-rays showed widening of the acromioclavicular joint space, possibly due to
postsurgical status.
In a February 7, 2011 letter, counsel again requested that OWCP adjudicate the issue of
whether appellant’s cervical spine condition was causally related to the accepted right shoulder
injury.

6

In an October 1, 2010 letter, OWCP advised counsel that it would issue a decision on whether to accept a
cervical spine condition “within the next couple of weeks.”
7

The employing establishment controverted the claim, asserting that appellant did not ask permission to remove
the vehicle from the premises. The record contains April 8, 2010 and February 19, 2013 OWCP decisions that
pertains to File No. xxxxxx139, finding that the February 2010 motor vehicle accident did not occur in the
performance of duty. In D.T., Docket No. 13-1376 (issued February 11, 2014), the Board affirmed OWCP’s denial
of the claim, finding that the accident did not occur in the performance of duty as appellant was not authorized to
have driven the vehicle off postal premises.
8

An April 28, 2010 cervical spine MRI scan showed disc bulging at C4-5 and C6-7 with thecal sac impingement.
A June 28, 2012 report from Dr. Joseph Mormino, a Board-certified neurosurgeon, diagnosed herniated discs at
C4-5, C6-7, and exacerbation of a preexisting cervical condition. Dr. Mormino attributed her condition to the
February 12, 2010 automobile accident.

4

On March 25, 2011 OWCP obtained a second opinion from Dr. Stanley Askin, a Boardcertified orthopedic surgeon, who opined that the March 6, 2006 injury had no effect on
appellant’s preexisting cervical spine condition.9
OWCP found a conflict of medical opinion between Dr. Ross, for appellant, and
Dr. Askin, for the government. To resolve the conflict, it selected Dr. Thomas O’Dowd, a
Board-certified orthopedic surgeon, who provided a December 13, 2011 report finding that test
results and a lack of clinical findings established that accepted right shoulder injury had resolved.
Dr. O’Dowd stated that appellant’s cervical spine condition was unrelated to the March 2006
injury.
In a May 10, 2012 report, Dr. Ross continued to diagnose right shoulder impingement, a
herniated cervical disc, and a history of left lateral epicondylitis beginning in March 2012. On
July 17, 2012 she noted a new right shoulder injury, aggravated by a recent long distance drive.
On April 18, 2013 OWCP obtained an updated second opinion from Dr. Kenneth Heist,
an osteopath Board-certified in orthopedic surgery, who reviewed the medical record and
statement of accepted facts. On examination, Dr. Heist observed a normal lordotic curvature of
the cervical spine, full range of cervical motion without spasm, no evidence of cervical
radiculopathy, full motion of the right shoulder, normal strength and muscle bulk in the right
arm, negative impingement signs, and point tenderness over the right acromioclavicular joint.
He diagnosed a healed right shoulder sprain, status-post right shoulder arthroscopy, and a healed
cervical sprain “not work related.” Dr. Heist explained that appellant had mild age-related
changes of the cervical spine, without radiculopathy. The bulging discs seen on MRI scan were
normal for age and not indicative of pathology. Dr. Heist stated that based on his review of the
medical record, there was “no reported cervical injury following the incident of March 6, 2006.
[Dr. Heist did not] feel [appellant’s] neck complaints [were] related to the condition of right
shoulder sprain.” He noted that it was “highly unlikely that [appellant] would have permanently
injured his neck during a session of physical therapy” as appellant alleged.
On May 23, 2013 Dr. O’Shea performed C4-5 and C5-6 cervical discectomies and fusion.
Appellant was involved in a motor vehicle collision on June 27, 2013. He submitted emergency
room discharge instructions and imaging study tracking forms. These documents did not contain
a diagnosis. Dr. Susan I. Moreno, an attending Board-certified physiatrist, provided pain
management through September 2013.
On August 12, 2013 appellant filed a claim for a recurrence of disability commencing
May 23, 2013, the date of the cervical discectomy and fusion. He asserted that he sustained a
traumatic cervical spine injury on March 6, 2006 when the brick column fell on his right
shoulder and arm.
By decision dated October 9, 2013, OWCP denied the claim for a recurrence as well as
expansion of the claim for a cervical spine injury. It found that Dr. Heist provided a detailed
9

In a January 30, 2012 addendum, Dr. Askin explained that he needed to review MRI scans to determine if
appellant had residuals of the accepted right shoulder injury and biceps tendon rupture. Dr. O’Dowd did not address
the cervical condition.

5

explanation finding that appellant’s cervical spine complaints were not related to the accepted
March 6, 2006 right shoulder sprain.
In an October 15, 2013 letter, counsel requested an oral hearing, later changed to a
request for review of the written record. He also submitted additional evidence.
Dr. Ross provided progress notes from September 18, 2012 to March 4, 2014, diagnosing
multilevel cervical and lumbar disc protrusions, cervical facet arthropathy from C2-4,
radiculopathy into the right arm, a labral tear of the right shoulder, a possible right biceps tendon
tear, right shoulder impingement, and bilateral elbow pain.
Dr. Moreno provided pain management from June 2013 to May 2014.
A January 8, 2014 functional capacity evaluation demonstrated that appellant could
perform full-time work at the medium physical demand level.
By decision dated July 7, 2014, an OWCP hearing representative affirmed the October 9,
2013 decision, finding that appellant had not established that the March 6, 2006 incident caused
a cervical spine injury. She found that the additional reports from Dr. Ross and Dr. Moreno
submitted after the October 9, 2013 decision did not address causal relationship. The hearing
representative further found that as the cervical spine condition remained denied, he had not
established continuing disability on and after May 23, 2013 due to the claimed neck condition.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.10
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.11 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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.12 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.13
10

Jaja K. Asaramo, 55 ECAB 200 (2004).

11

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

12

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

13

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

6

ANALYSIS -- ISSUE 1
Appellant has cervical spine problems dating back to January 2000, and imaging studies
which show a C7-T1 disc bulge and degenerative disc disease at C5-6. He claimed that he
sustained a traumatic cervical spine injury on March 6, 2006 in the same incident which caused
the accepted right shoulder injury. September 2007 imaging studies showed cervical disc
protrusions from C3 to C7 that were not present on the January 2000 studies. Alternatively,
appellant alleged that physical therapy on March 24, 2008 caused an onset of neck pain. He thus
provided an inconsistent history of injury, attributing his symptoms to a preexisting condition,
the March 6, 2006 incident, and a March 2008 physical therapy session. These conflicting
accounts cast doubt on the veracity of appellant’s claim.14
Appellant’s physicians attributed appellant’s cervical spine conditions to a variety of
causes. Dr. Ponzio, an attending Board-certified orthopedic surgeon, stated that he was “unable
to relate his neck pain to” the accepted March 6, 2006 right shoulder injury, as his cervical
complaints did not begin until March 2008.
Dr. Arino, an attending Board-certified
anesthesiologist, noted that appellant did not experience neck pain until March 19, 2008 while
lifting a weight in physical therapy. Dr. O’Shea, an attending Board-certified neurosurgeon, also
attributed appellant’s cervical presentation to the March 2008 physical therapy session. As the
physical therapy was for an accepted injury, a consequential injury could be compensable under
FECA.15 However, none of these physicians provided medical rationale explaining how and
why lifting a two-pound weight as part of physical therapy would cause any of appellant’s neck
injuries or conditions. Therefore, their opinions are insufficient to meet appellant’s burden of
proof.16
Dr. Ross, an attending Board-certified orthopedic surgeon, opined on March 1, 2009 that
appellant’s cervical injuries were “directly related” to the March 6, 2006 accident, because 2007
imaging studies showed additional disc herniations from September 2000 studies. However, the
Board has held repeatedly that a temporal relationship alone is insufficient to establish causal
relationship.17
Dr. Rushton, an attending Board-certified orthopedic surgeon, noted that appellant had
neck pain beginning with the 2006 work injury. However, he did not opine that the incident
caused any medical condition. Dr. Mormino, a Board-certified neurosurgeon, attributed
appellant’s cervical disc herniations to a February 12, 2010 motor vehicle accident, which was
not accepted as employment related.
OWCP accorded the weight of the medical evidence to Dr. Heist, a Board-certified
orthopedic surgeon, who submitted an April 18, 2013 report, based on a statement of accepted
facts, the medical record, and a thorough clinical examination. Dr. Heist explained that appellant
14

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

15

See Carlos A. Marrero, 50 ECAB 117 (1998).

16

Deborah L. Beatty, 54 ECAB 340 (2003).

17

Louis R. Blair, Jr., 54 ECAB 348 (2003).

7

had typical age-related changes of the cervical spine which were unrelated to the March 6, 2006
accident or other aspects of his federal employment. He noted that the imaging studies
documented idiopathic degeneration and not a traumatic pathology. The Board finds that
Dr. Heist’s opinion is sufficiently rationalized to represent the weight of the medical evidence in
this case. OWCP’s July 7, 2014 decision denying appellant’s cervical spine injury claim is
proper under the law and facts of this case.
On appeal, counsel asserts that the medical evidence, in particular Dr. Ross’ March 1,
2009 report, supports a causal relationship between the claimed cervical spine injury and the
accepted right shoulder injury. He asserts that OWCP has not obtained a rationalized opinion on
the causal relationship of the claimed cervical spine injury to the accepted right shoulder injury.
Counsel contends that Dr. Heist’s opinion was insufficiently rationalized to represent the weight
of the medical evidence. He asserts that OWCP erred in failing to identify a conflict in the
medical evidence between Drs. Heist and Ross and referral of the matter to a referee” specialist.
Counsel requests that the Board vacate OWCP’s July 7, 2014 decision. As stated above,
however, Dr. Ross did not explain how and why the March 6, 2006 incident or sequelae of the
accepted right shoulder injury would cause the claimed cervical spine injury. Appellant’s
physicians submitted insufficient rationale to establish a causal relationship between work
factors and the claimed cervical spine injury. Their opinions are of insufficient weight to create
a conflict with that of Dr. Heist.
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
OWCP’s implementing regulations define a “recurrence of disability” as 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.18 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury is
withdrawn or when the physical requirements of such an assignment are altered such that they
exceed the employee’s physical limitations.19 Appellant has the burden of establishing that there
was no medically appropriate light duty available for the claimed period.20
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
18

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2(b)
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
19

J.F., 58 ECAB 124 (2006).

20

Id.

8

establish by the weight of the reliable, probative, and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.21 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.22 An award of
compensation may not be made on the basis of surmise, conjecture, speculation, or on
appellant’s unsupported belief of causal relation.23
ANALYSIS -- ISSUE 2
Appellant claimed a recurrence of disability commencing May 23, 2013, the date of the
cervical spine fusion. As set forth above, OWCP did not accept that he sustained a cervical spine
injury in the performance of duty. The surgery performed to address that nonoccupational injury
is also unrelated to appellant’s federal employment. Therefore, any period of disability related to
the cervical fusion was not compensable. Appellant has not established a recurrence of disability
in this regard.
The Board notes that none of appellant’s physicians opined that the accepted right
shoulder injury spontaneously worsened on and after May 23, 2013.24 Rather, appellant
submitted June 27, 2013 emergency room forms indicating he was injured in a motor vehicle
accident. This implicates an intervening cause, breaking the chain of causation from the
accepted right shoulder injury.25 Under these circumstances, OWCP properly denied appellant’s
claim for recurrence of disability.
CONCLUSION
The Board finds that appellant has not established a cervical spine injury in the
performance of duty. The Board further finds that he has not established a recurrence of
disability on and after May 23, 2011 due to a cervical spine injury.

21

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

22

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

23

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

24

Ronald A. Eldridge, supra note 23.

25

See Carlos A. Marrero, 50 ECAB 117 (1998) (the Board found that the claimant’s use of an exercise machine
constituted an intervening cause of appellant’s disability and thus OWCP properly denied appellant’s claim for
recurrence of disability); Clement Jay After Buffalo, 45 ECAB 707 (1994) (the Board found that the claimant’s knee
injury sustained while playing basketball broke the legal chain of causation from an accepted knee injury sustained
in the performance of his duties as a firefighter).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2014 is affirmed.
Issued: July 28, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10