United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, ALTUS
AIR FORCE BASE, Altus, OK, Employer
__________________________________________

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

Docket No. 21-1028
Issued: February 7, 2022

Case Submitted on the Record

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

JURISDICTION
On June 21, 2021 appellant filed a timely appeal from a February 10, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated December 8, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the February 10, 2021 decision, OWCP received additional evidence. The
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 1, 2020 appellant, then a 30-year-old fire protection and prevention specialist,
filed a traumatic injury claim (Form CA-1) alleging that on October 1, 2020 she sprained the
anterior talofibular ligament (ATFL) of her left ankle when she lost feeling and blood flow as she
was stepping down from a bunkroom bed while in the performance of duty. She stopped work on
the date of injury.
In a visit summary dated October 1, 2020, Dr. Jentry McLaughlin, a Board-certified
emergency medicine specialist, noted a diagnosis of sprain of the ATFL of the left ankle. He
recommended that appellant continue to administer ice and compression, take anti-inflammatory
medication, and avoid any strenuous activity for the next 24 hours.
In a letter dated October 2, 2020, Dr. Elvira Tolentino, a family physician, noted a
diagnosis of severe left foot sprain and advised that appellant remain off from work for two weeks
beginning October 5 through 18, 2020.
In a subsequent letter dated October 15, 2020, Dr. Tolentino recommended that appellant
undergo a magnetic resonance imaging (MRI) scan of the left ankle. She diagnosed a severe left
foot and left ankle sprain. Dr. Tolentino advised that she remain out of work until November 2,
2020, pending the MRI scan results.
OWCP, in an October 21, 2020 development letter, informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond. No response was
received.
By decision dated December 8, 2020, OWCP accepted that the October 1, 2020
employment incident occurred as alleged. However, it denied appellant’s claim, finding that the
medical evidence submitted was insufficient to establish causal relationship between the accepted
October 1, 2020 employment incident and her diagnosed left foot and ankle conditions.
On January 7, 2021 appellant requested reconsideration of the December 8, 2020 decision.
By decision dated February 10, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).

2

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s January 7, 2021 timely request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that it did not advance a relevant legal argument not previously considered by
OWCP. Accordingly, appellant is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 8
In support of her request for reconsideration, appellant did not submit any pertinent new
and relevant medical evidence. The underlying issue in this case is causal relationship, which is
medical in nature and, therefore, can only be addressed by submission of rationalized medical
evidence from a qualified physician. Therefore, appellant is not entitled to further review of the
merits of her claim based on the third requirement under 20 C.F.R. § 10.606(b)(3).9
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); J.V., Docket No. 21-0252 (issued September 23, 2021); B.S., Docket No. 20-0927 (issued
January 29, 2021); E.R., Docket No. 09-1655 (issued March 18, 2010).
8

See J.V., id.; C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued October 25,
2018); C.N., supra note 4.
9

Id.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 09-1158
Issued: June 22, 2010

Oral Argument May 20, 2010

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

JURISDICTION
On March 30, 2009 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs’ dated July 16, 2008 and January 29, 2009. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether appellant sustained a recurrence of her accepted right
shoulder condition; and (2) whether the Office properly refused to reopen her case for
reconsideration under 5 U.S.C. § 8128.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
This is the second appeal before the Board. Appellant’s occupational disease claim,
File No. xxxxxx964, was accepted for a left inguinal hernia by aggravation. She stopped work
on May 27, 2002 and returned to full duty on October 1, 2002. On October 8, 2003 appellant
filed a claim, File No. xxxxxx862, that was accepted for a right groin sprain and a recurrence of
disability commencing October 22 to November 3, 2003. On September 16, 2004 appellant filed
a Form CA-2a claim for a recurrence of disability beginning September 11, 2004. The Office
accepted this claim, File No. xxxxxx398, for right abdominal strain. It subsequently accepted
two additional claims for right groin sprain and for resolved right-sided abdominal strain. The
claims were subsequently consolidated.
In a September 23, 2004 report, Dr. Lawrence E. Miller, an osteopath, stated that
appellant was capable of working full time, for eight hours per day. He outlined restrictions of
no lifting, pulling or pushing exceeding 15 pounds, on a nonrepetitive basis.
On November 27, 2004 appellant accepted a modified job as a mail handler for eight
hours a day. The job involved pulling mail on conveyor belts, preparing meter mail on carts and
hand canceling mail. It required standing from four to six hours and sitting for two to four hours.
Appellant returned to work as a modified mail handler for six hours on Friday,
November 27, 2004. However, on December 15, 2004 she filed a Form CA-2a claim for
recurrence of disability as of November 29, 2004 which indicated that she returned to work for
only one day. On the form, appellant stated that she attempted to return to work as a modified
mail handler but was unable to perform her duties due to pain and discomfort caused by her
accepted left abdominal condition. The employing establishment indicated that she worked on a
conveyor belt with a foot cushion rug. Appellant’s job required no lifting or pushing and that she
was given a safety chair, in accordance with her limitations. The employing establishment stated
that her work entailed simple hand grasping, placing mail in a tray or hamper weighing two to
six ounces. It asserted that it had provided appellant with the lightest work it had available.
In reports dated November 30 and December 3, 2004, Dr. Jorge Orellana, Board-certified
in family medicine, stated that appellant was unable to perform her work duties from
November 30 to December 6, 2004 due to left-sided abdominal pain.
Appellant submitted a statement in support of her claim. She noted that her limited-duty
assignment required her to prepare magazines on a belt, cull magazines from the belt, and then
turn around and lift the magazines from the belt to a cart placed four feet to her rear. Appellant
asserted that this action resulted in a turning, twisting motion, a repetitive action occurring about
20 times per minute, which she performed continuously for an eight-hour shift. She alleged that,
after about 20 minutes, she felt a sharp pain in her groin area and around the right side of her
abdomen.
A statement of accepted facts dated July 3, 2006 indicates that appellant filed an
additional claim for a recurrence on February 20, 2005.
In an April 14, 2005 report, Dr. Orellana noted that he had examined appellant on
December 3, 2004, January 20 and March 11, 2005 for dull abdominal pain which rated 4 to 5 on

2

a scale of 1 to 10. The pain radiated to the right inguinal area. Dr. Orellana diagnosed chronic
abdominal wall muscle pain and opined that appellant was able to work full time with
restrictions on lifting, pulling or pushing more than 10 pounds, on a nonrepetitive basis only.
The employing establishment submitted a May 2, 2005 statement which controverted
appellant’s description of her work duties. It stated:
“In regards to the statement given by [appellant], her statement is not completely
accurate. When prepping flats she was working off a conveyor belt which was
loaded by someone else and the bundles she was prepping were less than 5 to 10
pounds. No bending was needed since the belt is waist high. The process of
prepping flats consisted of cutting the plastic straps or wrapping on the bundle
and placing the bundle into an Ergo cart. To place the bundle into the Ergo cart
the employee must turn around put the bundle in, not twisting since the Ergo cart
is directly behind the employee. Although the employee works eight hours a day
there are two breaks and a lunch.... The job offer was well within [appellant’s]
job limits of no bending, no twisting, no standing more than two hours, [and] no
lifting more than 10 pounds. In addition, although the process of prepping flats is
repetitive in nature it does not consist of continuous repetitive motion by the
employee.”
In a telephone memorandum dated May 16, 2005, the Office noted that appellant advised
that she had been out of work since February 2005 and had submitted another Form CA-2a
claiming a recurrence of disability on or about January 26, 2005.
In order to determine appellant’s current condition and work capacity, the Office referred
her to Dr. Robert Israel, a Board-certified orthopedic surgeon, for a second opinion examination.
In a July 8, 2005 report, Dr. Israel diagnosed a resolved abdominal sprain. He stated:
“Based on my examination and an orthopedic point of view, [appellant] has no
causally[-]related disability as a result of the accident of record. The claimant can
work and return to her date[-]of[-]injury job and resume her [daily] pre-accident
activities ... without restrictions. Prognosis in this case is good.
“[Appellant] does not require any further orthopedic or physical therapy
treatment. No further treatment would be reasonable or necessary. It is my
opinion that there is no objective evidence of a need for diagnostic testing,
durable medical equipment, household help or transportation services. It is my
clinical opinion, the claimant has fully recovered from any effect of the jobrelated injury that occurred on September 11, 2004.”
An August 11, 2005 Office memorandum noted that appellant attempted to resume light
duty on February 5, 2005 for four hours a day, but had not worked since February 2005. The
Office also stated that “[h]er current medical [records] indicate that she cannot do anything
repetitive and there is no work available with those restrictions.”

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In an August 5, 2005 handwritten statement, appellant asserted:
“The job position that the postal service had offered me ... required me to lift,
push and pull under 10 pounds, but has a repetitive motion that makes me pain in
the abdomin (sic). Although I complained, the postal service kept giving me the
same job duties. Therefore, the postal service has not accommodated me within
all limitation and restrictions as specified by my treating physicians.”
On August 3, 2005 Dr. Orellana reiterated appellant’s restrictions of no lifting, pulling or
pushing more than 10 pounds, on a nonrepetitive basis only.
By decision dated September 20, 2005, the Office found that appellant failed to establish
a recurrence of disability for the periods beginning November 29, 2004 and February 20, 2005.
In memoranda dated February 9 and 16, 2006, the Office noted that it had informed
appellant on February 7 and 16, 2006 that she had pending recurrence of disability claims at the
time her employer was offering modified duty. It stated that, if her recurrence claim was not
accepted for a worsening of her condition, she would not be paid compensation regardless of the
job offer. If the recurrence claim was accepted, appellant would be compensated for wage loss.
Thus, the job offer would not be at issue until the recurrence was adjudicated.
By decision dated May 2, 2006, the Office terminated compensation benefits based on
appellant’s refusal to accept a suitable job offer.
In a March 26, 2008 order,2 the Board set aside the May 2, 2006 Office termination
decision. It noted that appellant had outstanding claims for recurrences of disability. The record
did not contain a copy of the alleged January 26 and/or February 20, 2005 recurrences, although
these claims were referenced in Office memoranda dated May 16, 2005 and July 3, 2006. The
Board found that the Office should have adjudicated the recurrence claims and not have
proceeded with the May 2, 2006 termination decision. The Board directed the Office to conduct
a search of its records and locate the forms which appellant purportedly filed in January or
February 2005, together with any evidence she may have submitted in support of her claim, and
determine the periods from January 2005 to May 2006 in which appellant was working and not
working. The Board instructed the Office to adjudicate appellant’s claim in accordance with
Terry Hedman.3
By decision dated July 16, 2008, the Office found that appellant did not sustain a
recurrence of disability as of January 26, 2005. It had searched its records but found no claims
from appellant pertaining to this date. The Office reissued the September 20, 2005 decision
which denied compensation for the periods beginning November 29, 2004 and
February 20, 2005.

2

Docket No. 07-1068 (issued March 26, 2008).

3

38 ECAB 222 (1986).

4

On November 12, 2008 appellant requested reconsideration. She did not submit any
additional evidence in support of her request.
By decision dated January 29, 2009, the Office denied appellant’s application for review
on the grounds that it did not raise any substantive legal questions or include new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden, the employee must show either a change in the nature and extent of the injury-related
condition, or a change in the nature and extent of the light-duty requirements.4
Where appellant claims a recurrence of disability due to an accepted employment-related
injury, she has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the subsequent disability for which she claims compensation is causally related to
the accepted injury. In addition, medical evidence of bridging symptoms between the recurrence
and the accepted injury must support the physician’s conclusion of a causal relationship.5
ANALYSIS -- ISSUE 1
The record does not contain any medical opinion establishing a change in the nature and
extent of appellant’s injury-related condition. Appellant has failed to submit a rationalized or
probative medical report which relates her disability from November 27, 2004 to February 5,
2005 to her employment injury. For this reason, she has not discharged her burden of proof to
establish her claim that she sustained a recurrence of disability as a result of her accepted
employment injury.
Appellant has failed to submit contemporaneous medical evidence indicating that she was
not capable of performing modified work offered by the employing establishment throughout the
period November 27, 2004 to February 20, 2005. Dr. Miller found in a September 23, 2004
report that appellant was capable of working full time, for eight hours per day, with restrictions
of no lifting, pulling or pushing exceeding 15 pounds, on a nonrepetitive basis. On
November 27, 2004 appellant accepted a modified-duty job within these restrictions as a mail
handler. She apparently worked six hours that day, and did not return to work until
February 5, 2005. On or about February 20, 2005 appellant again stopped work. There is
insufficient evidence of record to support her assertions that her absences from work, during any
of the claimed periods, were causally related to her accepted conditions. The only medical report
4

Id.

5

For the importance of bridging information in establishing a claim for a recurrence of disability, see Robert H.
St. Onge, 43 ECAB 1169 (1992); Shirloyn J. Holmes, 39 ECAB 938 (1988); Richard McBride, 37 ECAB
738 (1986).

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pertaining to this period is the April 14, 2005 report of Dr. Orellana, who advised that appellant
demonstrated moderate abdominal and inguinal pain on December 3, 2004, January 20 and
March 11, 2005, but was able to work full time within her prescribed restrictions. In a July 8,
2005 report, Dr. Israel found that she had no disability related to her accepted conditions and
advised that she had fully recovered from her work injuries. Accordingly, the medical evidence
contemporaneous to the periods of claimed disability do not establish that appellant was disabled
on or after November 27, 2004 due to her accepted abdominal, inguinal and groin conditions.
Appellant failed to provide sufficient medical evidence to support of her claim that she was
disabled. The medical reports do not establish a worsening of her accepted conditions.6
The Board finds that the evidence also fails to establish that there was a change in the
nature and extent of appellant’s limited-duty assignment such that she no longer was physically
able to perform the requirements of her modified position. Appellant first accepted a position as
a modified mail hander within her restrictions on November 27, 2004. She went back off work
on February 5, 2005. Appellant argued to the Board that she filed a claim for a recurrence on
January 26, 2005; however, the Office and employing establishment searched their records and
found nothing to establish this assertion. The record reflects that she has not worked since
February 20, 2005, despite evidence indicating that the employing establishment offered her
work within her physical restrictions throughout the periods for which she claimed disability.
Appellant has failed to establish that she stopped working because there had been a change in the
nature and extent of her limited-duty assignment such that she no longer was physically able to
perform the requirements of her light-duty job. The Board will affirm the July 16, 2008 Office
decision.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.7 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.8
ANALYSIS -- ISSUE 2
In the present case, appellant did not establish that the Office erroneously applied or
interpreted a specific point of law; she did not advance a relevant legal argument not previously
considered by the Office; and she has not submitted any relevant or pertinent evidence not
previously considered. Her reconsideration request was not accompanied by any evidence to
show that the Office erroneously applied or interpreted a point of law nor did it advance a point

6

William C. Thomas, 45 ECAB 591 (1994).

7

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

8

Howard A. Williams, 45 ECAB 853 (1994).

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of law or fact not previously considered by the Office. The Office did not abuse its discretion in
refusing to reopen appellant’s claim for a review on the merits.9
CONCLUSION
The Board finds that appellant has not met her burden to establish that she was entitled to
compensation for a recurrence of disability from January 25 to February 5, 2005 causally related
to her accepted abdominal, inguinal and groin conditions. The Board finds that the Office
properly refused to reopen appellant’s case for reconsideration on the merits of her claim under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2009 and July 16, 2008 decisions
of the Office of Workers’ Compensation Programs be affirmed.
Issued: June 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9

The Board notes that appellant submitted additional evidence to the record following the July 16, 2008 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
INDIANAPOLIS -- VETERANS
ADMINISTRATION MEDICAL CENTER,
Indianapolis, IN, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-27
Issued: July 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 2, 20111 appellant, through his attorney, filed a timely appeal from a
March 10, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act2

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on March 10, 2011, the 180-day computation begins, to determine the timeliness of the appeal
from that decision, March 11, 2011 and 180 days from March 11, 2011 was September 7, 2011. Since using
October 7, 2011, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights
as to the appeal from the March 10, 2011 decision, the date of the postmark or other identifiable marking is
considered the date of filing. The shipping date on the federal express envelope containing the appeal is
September 2, 2011, which renders the appeal timely filed from the March 10, 2011 decision. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty on August 11, 2010 as alleged.
FACTUAL HISTORY
On August 23, 2010 appellant, then a 40-year-old lead medical instrument technician,
filed a traumatic injury claim alleging that on August 11, 2010 he sustained a low back injury
while assisting a heavy patient to the table. He stopped work on August 11, 2010.
In an August 20, 2010 report, Dr. Sadia Saba, a Board-certified neurologist, noted that
appellant reported that, while he was assisting an obese patient at work on August 11, 2010, he
noticed a sudden back pain going down his right leg and to the big toe and the toe next to it and
became numb. Since then appellant had constant back pain. Dr. Saba stated that he had back
surgery in 2007 and 2009 for herniated disc at L4-5, but his symptoms did not completely
resolve as he had some mild pain. However, after the work injury, appellant has had very severe
pain and difficulty working and walking. Dr. Saba reported the August 11, 2010 lumbar x-ray
taken in the emergency room showed mild intervertebral disc space height loss at L5-S1;
otherwise, it was unremarkable. She also noted that a November 2009 magnetic resonance
imaging (MRI) scan showed degenerative disc disease at levels L4-5 and L5-S1 with a
moderate-size disc bulge at L4-5 and L5-S1 with moderate bilateral foraminal stenosis.
Appellant also had persistent epidural fibrosis encasing the right L5 nerve root. Dr. Saba opined
that the August 11, 2010 incident may have exacerbated his systems. In an accompanying duty
status report, she noted that appellant had an “apparent reinjury to a prior old back problem.” No
diagnosis was provided. In her August 20, 2010 attending physician’s report, Dr. Saba noted
that the history of injury and diagnosed “probable lumbo-sacral radiculopathy.” She opined that
appellant’s condition was “possibly aggravated” by the employment activity.
In a September 1, 2010 letter, OWCP notified appellant that the information received was
insufficient to establish his claim. It asked him to have his physician submit a medical opinion
supported by a medical explanation that the work incident caused or aggravated a medical
condition.
In response, OWCP received: copies of memoranda dated August 26, September 15
and 24, 2010, from the employing establishment regarding continuation of pay an August 26,
2010 witness statement from Jeremy Bricker, a coworker; an August 12, 2010 off work note; an
August 11, 2010 lumbosacral spine x-ray report; requests for physical therapy authorization and
a September 20, 2010 physical therapy evaluation.
An August 11, 2010 emergency room report showed appellant was treated for low back
pain. He was diagnosed with low back pain with right leg radiculopathy.

2

In an October 1, 2010 report, Dr. Saba noted that appellant had been treated for back pain
on August 20 and September 24, 2010. She stated that the new MRI scan did not show any
significant difference from the prior MRI scan. Dr. Saba opined that appellant’s back pain was
aggravated by the work injury of moving an obese patient to the operating table. In an
October 22, 2010 attending physician’s report, she stated that his chronic back pain was
exacerbated by trying to lift an obese patient. Dr. Saba opined that appellant’s condition was
aggravated by his activity.
In an October 18, 2010 report, Dr. Mitesh V. Shah, a Board-certified neurologist, noted
that he saw appellant on October 15, 2010. He noted that appellant had a prior L4-5
microlumbar discectomy on the right and at L5-S1 on the left. Dr. Shah reported that, following
lifting a patient at work on August 25, 2010, appellant had complaints of severe back pain that
radiated down his right leg with numbness involving the bottom of his foot. He reviewed the
August 25, 2010 MRI scan studies and reported that there was no difference from the July 2009
films. Dr. Shah noted that appellant had an annular tear on the right at L4-5 and a central
bulging disc at L5-S1. He stated that, even though the report seems to indicate that there was
severe foraminal stenosis, he did not think there was anything substantially different from the
July 2009 films as a central bulging disc was also present at L5-S1. Dr. Shah opined that
appellant was not a surgical candidate. In an October 18, 2010 follow-up note, he indicated that
the October 15, 2010 lumbar x-rays indicated no abnormal motion across the L4-5 or L5-S1
interspaces, but the disc height at L4-5 was slightly collapsed.
By decision dated October 26, 2010, OWCP denied the claim on the grounds that fact of
injury was not established. It found that the medical evidence was not sufficient to establish that
a medical condition was diagnosed in connection with the claimed event.
On October 31, 2010 appellant requested a review of the written record before a hearing
representative.
In a November 5, 2010 attending physician’s report, Dr. Shah diagnosed right L5
radiculopathy and opined with a checkmark “yes” that he believed the condition was caused or
aggravated by employment activity.
By decision dated March 10, 2011, OWCP’s hearing representative affirmed the denial of
appellant’s claim. The hearing representative found that the medical evidence was insufficient to
establish that the effects of the August 11, 2010 incident caused an injury or disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.5 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.6 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
The work incident of August 11, 2010 is not in dispute as the record indicates that
appellant lifted an obese patient on August 11, 2010. However, appellant has not submitted
sufficient medical evidence to establish that the August 11, 2010 work incident caused an injury
or disability.
In her August 20, 2010 reports, Dr. Saba opined that appellant had “probable
lumbo-sacral radiculopathy” and indicated that the August 11, 2010 incident may have
exacerbated his symptoms. In her October 1, 2010 report, she stated that the new MRI scan did
not show any significant difference from the prior MRI scan. Dr. Saba continued to opine in her
October 1 and 22, 2010 reports that appellant’s chronic back pain was aggravated by his work
activity of trying to lift an obese patient. Although she provided some support for causal
relationship, her opinion that the August 11, 2010 incident may have exacerbated his symptoms
is couched in speculative terms. The Board has held that medical opinions which are speculative
3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

6

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

7

Id.

8

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

4

or equivocal in character have little probative value.9 Dr. Saba also did not offer a firm diagnosis
and she offered no rationale as to why appellant’s chronic back pain was aggravated by the
August 11, 2010 incident especially since the new MRI scan did not show any significant
difference from the prior MRI scan. Thus, her opinion is insufficient to establish appellant’s
claim.
The November 5, 2010 form report from Dr. Shah which supports causal relationship
with a check mark is insufficient to establish the claim, as the Board has held that, without
further explanation or rationale, a checked box is not sufficient to establish causation.10
Although Dr. Shah diagnosed right L5 radiculopathy and explained that appellant had radiating
pain on August 11, 2010, she did not adequately address how this was causally related to the
August 11, 2010 work incident. As she noted that there was no change from the previous MRI
scan, there is insufficient rationalized evidence to support that his right L5 radiculopathy was
work related. Thus, Dr. Shah’s reports are insufficient to establish appellant’s claim.
Appellant also provided several diagnostic reports. However, these reports merely
reported findings and did not contain a physician’s opinion regarding the cause of the reported
condition. Additionally, appellant provided physical therapy notes. As physical therapists are
not physicians as defined by FECA, their opinions regarding the cause of his condition are of no
probative medical value.11
Appellant has not submitted rationalized medical evidence in which a physician explains
the reasons why the effects of the August 11, 2010 work incident caused an injury or disability.
The Board therefore finds that, as he did not submit medical evidence to establish that his
aggravation of back pain was causally related to factors of employment, he has failed to meet his
burden of proof.
On appeal, counsel essentially argues that OWCP’s decision is contrary to fact and law.
For the reasons outlined above, appellant failed to submit rationalized medical evidence in which
a physician explains the reasons why the effects of the August 11, 2010 work incident caused an
injury or disability.
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 in establishing that he
sustained an injury in the performance of duty.
9

Vaheh Mokhtarians, 51 ECAB 190 (1999).

10

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

11

See 5 U.S.C. § 8101(2); H.S., Docket No. 11-679 (issued October 6, 2011); Roy L. Humphrey, 57 ECAB 238
(2005). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).

5

ORDER
IT IS HEREBY ORDERED THAT the March 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Worcester, MA, Employer
__________________________________________

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

Docket No. 10-2270
Issued: June 2, 2011

Case Submitted on the Record

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

JURISDICTION
On September 8, 2010 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated June 22 and August 12, 2010. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant has sustained any permanent impairment to her
upper extremities causally related to her accepted cervical strain and cervical subluxation
conditions; and (2) whether the Office properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 38-year-old letter carrier, sustained an injury to her neck, upper back and
both shoulders when her postal vehicle was struck from behind by another vehicle. She filed a
claim for benefits, which the Office accepted for cervical strain and cervical subluxation.
On March 9, 2010 appellant filed a Form CA-7 claim for a schedule award.
By letter dated March 26, 2010, the Office asked appellant to provide a medical report
and impairment evaluation from her attending physician pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (sixth
edition). Appellant did not submit any additional medical evidence.
By decision dated June 22, 2010, the Office found that appellant had no ratable
impairment causally related to an accepted condition and therefore was not entitled to a schedule
award.
On July 15, 2010 appellant requested reconsideration of the June 22, 2010 schedule
award decision. She asserted that she had requested her treating physician to send a form report
including an impairment evaluation; however, her physician failed to submit these forms in a
timely fashion.
Appellant submitted a May 13, 2010 impairment worksheet from Dr. Deborah Ford, a
specialist in internal medicine, which the Office received on July 19, 2010. Dr. Ford related
appellant’s complaints of upper extremity pain and stated findings on examination. She
attributed appellant’s chronic upper extremity pain to repetitive motion activity. Dr. Ford did
not, however, provide an impairment rating under the A.M.A., Guides.
In a May 15, 2010 report, received by the Office on July 19, 2010, Dr. Ford stated that
appellant continued to experience chronic cervical pain stemming from her October 1991
employment injury, with pain in her neck, shoulder and both upper and lower back areas limiting
her activities of daily living including her ability to perform her usual job at work. She advised
that the intensity of her discomfort varied with the type of activity she was required to perform.
Dr. Ford asserted that appellant had achieved maximal improvement although it was difficult to
state the exact date this occurred. She stated on examination that appellant had diminished
mobility of her cervical paraspinal muscles, rhomboid muscles and shoulder girdles. Dr. Ford
stated that “permanent impairment” was not a “medical classification.” She declined to provide
an impairment rating based on percentage of impairment under the A.M.A., Guides.
By decision dated August 12, 2010, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.5
ANALYSIS -- ISSUE 1
In the instant case, the Office accepted conditions of cervical strain and cervical
subluxation. Appellant subsequently filed a claim for a schedule award. The Office asked her to
submit a medical report and impairment evaluation rendered in accordance with the applicable
protocols and tables of the A.M.A., Guides from her treating physician in support of her claim.
However, appellant did not provide the medical evidence requested. She submitted no medical
evidence indicating that she had any permanent impairment causally related to her accepted
cervical strain and cervical subluxation conditions. The Board will affirm the June 22, 2010
decision.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by the Office; or by constituting relevant and
pertinent evidence not previously considered by the Office.6 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.7
ANALYSIS -- ISSUE 2
Appellant has not shown that the Office erroneously applied or interpreted a specific
point of law; she has not advanced a relevant legal argument not previously considered by the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, the Office began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Veronica Williams, 56 ECAB 367, 370 (2005).

6

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

7

Howard A. Williams, 45 ECAB 853 (1994).

3

Office; and she has not submitted relevant and pertinent evidence not previously considered by
the Office.
The Board has held that the submission of evidence which does not address the particular
issue involved in the case does not constitute a basis for reopening the claim.8 Dr. Ford’s
May 13, 2010 impairment worksheet and May 15, 2010 report did not contain any medical
findings which could be correlated to a permanent impairment, compensable under the A.M.A.,
Guides. The Board has explained that whether a medical report actually applies the A.M.A.,
Guides in evaluating permanent impairment goes to the weight of the evidence, and therefore the
only inquiry is whether the report provides relevant, pertinent and new evidence pertaining to the
degree of permanent impairment.9 Dr. Ford’s reports submitted in support of the reconsideration
request provided no new evidence from which any degree of permanent impairment could be
discerned. The Office did not abuse its discretion in refusing to reopen appellant’s claim for a
review on the merits.10
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment causally
related to her accepted cervical strain and cervical subluxation conditions. The Board finds that
the Office properly refused to reopen appellant’s case for reconsideration on the merits of her
claim under 5 U.S.C. § 8128(a).

8

See David J. McDonald, 50 ECAB 185 (1998).

9

Billy B. Scoles, 57 ECAB 258 (2005).

10

Appellant may submit new evidence or argument with a written request for reconsideration to the Office within
one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.605 through 10.607.

4

ORDER
IT IS HEREBY ORDERED THAT the August 12 and June 22, 2010 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: June 2, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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Appearances:
James Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-268
Issued: August 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 15, 2010 appellant filed a timely appeal from a May 17, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent right arm permanent
impairment.
FACTUAL HISTORY
On October 29, 2002 appellant, then a 33-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that while in the performance of duty on May 14, 2002 she

1

5 U.S.C. § 8101 et seq.

sustained a right shoulder injury when a door struck her in the shoulder. OWCP accepted the
claim for a right shoulder contusion.
On March 12, 2009 appellant submitted a February 20, 2008 report from Dr. Nicholas
Diamond, an osteopath, who provided a history and results on examination.2 With respect to the
right shoulder, Dr. Diamond opined that appellant had a 16 percent right arm impairment based
on motor deficit and pain.3
Appellant submitted a new report from Dr. Diamond on October 20, 2009, which retained
the date of February 20, 2008. In the revised report, Dr. Diamond calculated an impairment to
the right arm based on the sixth edition of the A.M.A., Guides. He identified Table 15-5, with a
default value of two percent for a shoulder contusion under class 1. Dr. Diamond identified a
grade modifier of three for functional history, one for physical examination and zero for clinical
studies. Applying the net adjustment formula, the net adjustment was +1, which did not change
the default value of two percent.
In a report dated January 12, 2010, OWCP’s medical adviser concurred that the
permanent impairment for the right arm was two percent. The medical adviser referenced the
tables and analysis used by Dr. Diamond. The date of maximum medical improvement was
identified as February 20, 2008, the date of Dr. Diamond’s initial examination.
By decision dated May 17, 2010, OWCP issued a schedule award for a two percent right
arm permanent impairment. The period of the award was 6.24 weeks from February 20, 2008.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.4 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 OWCP
procedures provide that, effective May 1, 2009, all schedule awards are to be calculated under
the sixth edition of the A.M.A., Guides.6 Any recalculations of previous awards which result
2

Dr. Diamond noted in his history an injury to the left ankle on May 16, 2002, which he described as work
related. That claim is not before the Board on this appeal.
3

Dr. Diamond stated that he was applying the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment. The references to the A.M.A., Guides, however, are from the fifth edition.
4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (issued March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700 (January 2010).

2

from hearings or reconsideration decisions issued on or after May 1, 2009, should be based on
the sixth edition of the A.M.A., Guides. A claimant who has received a schedule award
calculated under a previous edition and who claims an increased award, will receive a calculation
according to the sixth edition for any decision issued on or after May 1, 2009.7
ANALYSIS
OWCP accepted that appellant sustained a right shoulder contusion on May 14, 2002. Its
decision regarding a schedule award in this case was dated May 17, 2010. Since the decision
was issued after May 1, 2009, it is properly based on application of the sixth edition of the
A.M.A., Guides.
In his revised February 20, 2008 report, Dr. Diamond properly identified Table 15-5, the
shoulder regional grid. For a shoulder contusion with residual symptoms and consistent
objective findings, the diagnosis class (CDX) is 1, with a default impairment of two percent for
the arm.8 The default value may be modified based on grade modifiers for Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).9 The Board notes that
under Table 15-5 for a class 1 shoulder contusion, a net adjustment of +1 or -1 still results in a
two percent arm impairment.10
Dr. Diamond found the GMFH was three (severe problem), the GMPE was one (mild
problem) and the GMCS was zero (no problem, or no available studies). Applying the net
adjustment formula of (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX), results in a net
adjustment of +1. As noted above, as appropriate, this does not change the default value of two
percent. OWCP’s medical adviser concurred with Dr. Diamond’s calculations.
The Board finds that the weight of the medical evidence does not establish more than a
two percent permanent impairment to the right arm. The number of weeks of compensation for a
schedule award is determined by the compensation schedule at 5 U.S.C. § 8107(c). For complete
loss of use of the arm, the maximum number of weeks of compensation is 312 weeks. Since
appellant’s impairment was two percent, he is entitled to two percent of 312 weeks, or 6.24 weeks
of compensation. It is well established that the period covered by a schedule award commences on
the date that the employee reaches maximum medical improvement from residuals of the
employment injury.11 In this case, OWCP’s medical adviser properly concluded that the date of
maximum medical improvement was the date of examination by Dr. Diamond. The award
therefore properly runs for 6.24 weeks commencing on February 20, 2008.

7

Id.

8

A.M.A., Guides 401, Table 15-5.

9

Id. at 406-411, Tables 15-6 to 15-9.

10

Id. at 401, Table 15-5. A +2 adjustment is a 3 percent impairment, a -2 adjustment results in a 1 percent arm
impairment.
11

Albert Valverde, 36 ECAB 233, 237 (1984).

3

On appeal, appellant’s representative states that “this case” was submitted prior to May 1,
2009 and argues that the fifth edition of the A.M.A., Guides should be the applicable in this case.
It is, as noted above, the date of OWCP’s decision that determines which edition should be
applied. There is no vested right to a schedule award decision under the fifth edition of the
A.M.A., Guides.12 Since OWCP’s decision was issued after May 1, 2009, it was properly based
on the sixth edition.
CONCLUSION
The Board finds that the evidence does not establish that appellant has more than a two
percent permanent impairment to her right arm.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 17, 2010 is affirmed.
Issued: August 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See H.M., Docket No. 10-2205 (issued June 6, 2011).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF THE TREASURY,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-17
Issued: September 2, 2008

Case Submitted on the Record

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

JURISDICTION
On October 1, 2007 appellant, through her attorney, filed a timely appeal from an
August 29, 2007 merit decision of the Office of Workers’ Compensation Programs denying her
claim for compensation for intermittent periods of disability. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained intermittent disability from employment between
September 23, 2000 and September 30, 2003 causally related to her February 10, 2000
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated March 14, 2003, the
Board affirmed in part and reversed in part July 10 and March 27, 2001 Office decisions.1 The
1

Docket No. 01-1872 (issued March 13, 2003). The Office accepted that on February 11, 2000 appellant, then a
40-year-old clerk, sustained lumbar radiculopathy in the performance of duty.

Board found that the Office properly denied continuation of pay for intermittent dates between
February 10 and March 26, 2000. The Board further determined that appellant had not
established that she sustained a cervical condition due to her February 10, 2000 employment
injury and that the Office properly denied her claim for wage-loss compensation after
March 27, 2001. The Board reversed the Office’s termination of appellant’s authorization for
medical benefits on procedural grounds. On September 8, 2006 the Board remanded the case for
reconstruction of the record.2 On June 25, 2007 the Board set aside a September 21, 2006
decision denying appellant’s claim for compensation for intermittent disability between
September 23, 2000 and September 30, 2003.3 The Board found that the Office’s decision
contained inadequate factual and legal findings. The findings of fact and conclusions of law
from the prior decisions are hereby incorporated by reference.
The evidence not previously considered by the Board in prior appeals that is relevant to
the period in question will be set forth. On April 7, 2005 appellant filed a claim for
compensation for intermittent disability from work for the period September 23, 2000 through
September 30, 2003. She submitted a return to work slip dated December 21, 2000 from
Dr. Linda Singh, a Board-certified internist and her attending physician. Dr. Singh treated
appellant for back pain and indicated that she could resume work on December 27, 2000. On
April 19, 2001 Dr. Andrew B. Kaufman, a Board-certified neurosurgeon, performed an excision
of a herniated nucleus pulposus at L5-S1. In a May 4, 2001 progress report, he noted that the
surgery significantly improved appellant’s back and leg pain. On July 9, 2001 Dr. Kaufman
opined that she could resume work without restrictions on July 16, 2001.
Dr. Singh treated appellant in 2001 through 2003 for various medical problems including
fibromyalgia, foot problems, upper respiratory conditions and anxiety. On February 7, 2002 she
found that appellant was unable to work because she slipped on ice and injured her back.
Dr. Singh opined that she could resume work on February 8, 2002. On April 3, 2002 she
asserted that appellant could not work due on April 2 and 3, 2002 due to illness. On July 30,
2002 Dr. Singh found that she was disabled due to acute muscle spasm and could resume work
the next day. On May 13, 2003 she indicated that appellant was under her care for a neck strain
or fracture.
In a May 19, 2003 disability certificate, Dr. Kaufman opined that appellant could resume
work without restrictions on May 20, 2003. In a form report dated October 28, 2003, Dr. Singh
diagnosed degenerative disc disease and spinal stenosis. She checked “yes” that the condition
was caused or aggravated by employment. Dr. Singh explained that her back injury “likely
exacerbated or caused symptoms” of the herniated disc and spinal stenosis. She opined that
appellant was disabled from February 10, 2000 to the present.
By decision dated August 29, 2007, the Office denied appellant’s claim for wage-loss
compensation from September 23, 2000 through September 30, 2003. The Office found that the
medical evidence was insufficient to show that she was disabled from work due to her accepted
employment injury for any period claimed.
2

Order Remanding Case, Docket No. 06-958 (issued September 8, 2006).

3

Docket No. 07-34 (issued June 25, 2007).

2

LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act4 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.5 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.6 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.7 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical 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.10 Neither the fact that
a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11
ANALYSIS
The Office accepted that appellant sustained lumbar radiculopathy due to a February 10,
2000 employment injury. Appellant filed a claim requesting compensation for intermittent
disability from September 23, 2000 to September 30, 2003.

4

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

5

Paul E. Thams, 56 ECAB 503 (2005).

6

Id.

7

Id.

8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

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

11

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

3

In a report dated January 9, 2001, a physician diagnosed chronic back spasm and thoracic
strain.
The physician noted her history of jerking her back stepping onto an outlet on
February 10, 2000. The physician did not, however, address the cause of her back spasms and
strain or find that she was disabled from employment. Consequently, the physician’s report is of
little probative value.13
12

On December 21, 2000 Dr. Singh evaluated appellant for back pain and found that she
could resume work on December 27, 2000. She did not, however, address causation and thus her
report is insufficient to show that appellant was disabled from work due to her accepted work
injury.14 In a January 23, 2001 form report, Dr. Singh diagnosed a herniated disc at L4-5. She
discussed appellant’s history of back surgery for a ruptured disc in October 1999 and found that
she was disabled from employment. Dr. Singh checked “no” that the diagnosed condition was
not caused or aggravated by employment. As she specifically found that the diagnosed condition
of a herniated disc was not due to appellant’s employment, her report is not supportive of the
claim for disability compensation.
On February 22, 2001 Dr. Singh listed dates and hours that appellant missed from work
due to her February 10, 2000 back injury. She diagnosed a C6-7 herniated disc. Dr. Singh,
however, did not explain how appellant’s February 10, 2000 employment injury caused the listed
periods of disability from employment. A physician must provide an opinion on whether the
employment incident described caused or contributed to claimant’s diagnosed medical condition
and support that opinion with medical reasoning to demonstrate that the conclusion reached is
sound, logical and rationale.15
In a report dated April 3, 2001, Dr. Singh discussed in detail appellant’s February 2000
work injury. She noted that appellant had undergone an excision of a right L4-5 disc herniation
prior to her work injury. Dr. Singh diagnosed a left L5-S1 disc herniation and a cervical disc
herniation. She opined that appellant “continues to suffer from the work injury of
February 2000.” The Board previously found that Dr. Singh’s April 3, 2001 report was
insufficient to establish an employment-related cervical disc herniation as she failed to provide
sufficient rationale for her conclusion.16 The Office has not accepted that appellant sustained a
left L5-S1 disc herniation due to her February 10, 2000 work injury and thus she has the burden
of proof to establish that the condition is causally related to the employment injury through the
submission of rationalized medical evidence.17 Dr. Singh did not specifically relate the left
L5-S1 disc herniation to the employment injury or provide any rationale for her opinion that

12

The name of the physician is not legible.

13

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship).
14

Id.

15

John W. Montoya, 54 ECAB 306 (2003).

16

Docket No. 01-1872 (issued March 14, 2003).

17

See JaJa K. Asaramo, supra note 13.

4

appellant had continuing problems due to the February 2000 work injury. Medical conclusions
unsupported by rationale are of little probative value.18
Appellant received treatment from Dr. Singh from 2001 to 2003 for multiple medical
conditions, including fibromyalgia, foot problems, upper respiratory conditions and anxiety. On
February 7, 2002 Dr. Singh found that she was unable to work until the next day due to a slip and
fall on ice. On April 3, 2002 she determined that appellant could not work until April 4, 2002
due to illness. On July 30, 2002 Dr. Singh found that she was disabled due to acute muscle
spasm and could resume work the next day. On May 13, 2003 she diagnosed a neck strain or
fracture. As Dr. Singh did not attribute any condition or period of disability to appellant’s
employment injury, her reports are insufficient to meet appellant’s burden of proof.
In a form report dated October 28, 2003, Dr. Singh diagnosed degenerative disc disease
and spinal stenosis and indicated “yes” that the condition was caused or aggravated by
employment. She provided as rationale that appellant’s back injury “likely exacerbated or
caused symptoms” of the herniated disc and spinal stenosis. Dr. Singh found that appellant was
disabled from employment from February 10, 2000 to the present. Her finding that the
employment injury “likely exacerbated or caused” the diagnosed conditions of a herniated disc
and spinal stenosis is speculative in nature. The Board has held that medical opinions which are
speculative or equivocal in character have little probative value.19
On January 12, 2001 Dr. Kaufman discussed appellant’s complaints of continuing pain
into her right arm and leg since tripping at work in February 2000. He diagnosed a left herniated
disc at L5-S1. Dr. Kaufman related that appellant “has several problems that ostensibly do not
go together. Appellant’s main complaint is of right interscapular pain and right arm pain, which
could be reflective of a right cervical radiculopathy.” Dr. Kaufman attributed appellant’s right
leg pain to possible residual scar tissue from the prior surgery. As he did not relate the
diagnosed conditions or any specific period of disability to her February 2000 work injury, his
opinion is insufficient to meet her burden of proof.
On January 29, 2001 Dr. Kaufman diagnosed a large herniated disc on the right at C6-7.
In February 16, March 1 and 28, 2001 form reports, he diagnosed a herniated nucleus pulposus
with lumbar and cervical radiculopathy. Dr. Kaufman checked “yes” that the condition was
caused or aggravated by employment and found that it was unknown when appellant could
resume work. The Board has held, however, that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion has little probative value and is insufficient to establish a claim.20
On March 12, 2001 Dr. Kaufman found that appellant had improved after her back
surgery. He related, “in the meantime, she reminds me that she is still having some back pain
and at time left leg pain going on ever since an injury at work in February 2000.” Dr. Kaufman
18

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

19

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
20

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

5

diagnosed a herniated disc. He did not, however, specifically relate the herniated disc to the
February 2000 work injury. On April 19, 2001 Dr. Kaufman performed an excision of a
herniated nucleus pulposus at L5-S1. In a May 4, 2001 progress report, he noted that the surgery
significantly improved appellant’s back and leg pain. Dr. Kaufman opined that she could resume
work without restrictions on July 16, 2001. In a May 19, 2003 disability certificate, he found
that appellant could resume work without restrictions on May 20, 2003. As Dr. Kaufman did not
address the cause of her disability or attribute her need for surgery to the February 2000 work
injury, his reports are insufficient to meet appellant’s burden of proof.
The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.21 Appellant has
not submitted rationalized medical evidence showing that she sustained intermittent periods of
disability due to her February 2000 work injury and thus the Office properly denied her claim for
compensation.
CONCLUSION
The Board finds that appellant has not established that she sustained intermittent
disability from September 23, 2000 through September 30, 2003 causally related to her
February 10, 2000 employment injury.

21

Sandra D. Pruitt, 57 ECAB 126 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 29, 2007 is affirmed.
Issued: September 2, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 17-1392
Issued: February 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 15, 2017 appellant filed a timely appeal from January 18 and May 18, 2017
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a condition related to
head trauma causally related to the accepted April 9, 2014 employment incident.
FACTUAL HISTORY
On July 22, 2014 appellant, then a 70-year-old electronic technician, filed a traumatic
injury claim (Form CA-1) alleging that on April 9, 2014 he sustained a contusion of the head at
work. He claimed that he bumped his head on a metal support beam on a machine as he stood
1

5 U.S.C. § 8101 et seq.

upright after bending over to retrieve a tool from his tool box. The employing establishment
indicated that it had notice of the claimed injury on April 9, 2014.
In support of his claim, appellant submitted medical records from Southern New
Hampshire Medical Center, Foundation Neurology, and St. Joseph Hospital-Family dated
May 16 through June 12, 2014 which were unsigned, bore an illegible signature, or were signed
by a physician assistant. These records indicated that appellant did not have a heart condition.
Appellant was diagnosed as having seizure disorder-memory loss and pneumonia and sleep
deprivation.
The employing establishment controverted appellant’s claim in a July 23, 2014 letter,
contending that fact of injury and causal relationship had not been established.
OWCP received a patient care report dated April 17, 2014 signed by two attendants from
American Medical Response New Hampshire who noted that on April 14, 2014 appellant was
transported from his home following a domestic incident to Southern New Hampshire Medical
Center with complaints of anxiety and stress. The attendants indicated that appellant’s condition
was behavioral/psychiatric suicidal.
Medical records dated May 8, 2015 from Monadnock Community Hospital indicated that
appellant was involved in a motor vehicle accident on that day and that he had transient global
amnesia due to seizure, motor vehicle collision with possible concussion and cervical strain, and
medication noncompliance. In addition, it was reported that he had a known seizure disorder.
OWCP, in a September 13, 2016 development letter, advised appellant that when his
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and, since the employing establishment did not controvert continuation of pay or challenge
the case, a limited amount of medical expenses were administratively approved and paid. It
noted that it had reopened the claim because the medical bills had exceeded $1,500.00. OWCP
requested that appellant submit additional factual and medical evidence within 30 days.
OWCP’s September 13, 2016 development letter was returned as undeliverable. The
employing establishment subsequently advised OWCP of appellant’s current address and, on
October 24, 2016, OWCP resent the development letter to his new address. The October 24,
2016 development letter was also returned as undeliverable. The employing establishment
verified appellant’s most recent address, and, on December 22, 2016, OWCP resent the
development letter to this address.
By letter dated January 12, 2017, appellant requested additional time to respond to
OWCP’s December 22, 2016 development letter.
OWCP, in a January 18, 2017 decision, denied appellant’s traumatic injury as the
evidence of record failed to establish that the April 9, 2014 incident occurred as alleged or that
appellant sustained a medical condition caused by the alleged work incident.
In a January 23, 2017 e-mail, appellant again attributed his head injury to his claimed
April 9, 2014 employment injury. He noted that he did not lose time from work. Appellant
asserted that when he returned to work on the day following his claimed injury he noted that
2

someone had covered the I-beam with foam and tape so that no one else would get hurt. He
could not explain the delay in filing his Form CA-1, but maintained that he notified a supervisor
about his injury at the time of injury. Appellant questioned why a supervisor did not call an
ambulance for him. He related that two weeks after his claimed injury, he was treated at a
hospital because he lost his vision in both eyes and was unaware of his surroundings. Appellant
asserted that he had suffered memory loss since the accident and had, among other problems,
seizures. He had one seizure that resulted in a car accident in which he totaled his car.
Appellant submitted unclear pictures allegedly taken at the time of his claimed work-related head
injury.
On January 27, 2017 appellant responded to OWCP’s December 22, 2016 development
questionnaire. He contended that he sustained a dime-sized hole on the top of his head as a
result of the claimed work incident. Appellant reiterated that he notified a supervisor on duty at
the time of injury. He noted that although he was in pain, he did not seek medical assistance at
that time. Appellant claimed that on the day following his injury he experienced loss of memory
and vision in his eyes as well as dizziness. He stated that he could not submit witness statements
because he no longer worked at the location where his injury occurred. Appellant claimed that
he had no similar disability or symptoms prior to his injury. He submitted e-mails dated April 19
to June 13 2014 between the employing establishment and himself regarding his therapy
sessions, medical conditions, and other treatment.
Appellant also submitted a series of reports noting the treatment of his various medical
conditions before and after the April 9, 2014 employment incident. In a May 15, 2014 report,
Dr. Robert Quirbach, a Board-certified family practitioner, noted appellant’s history which
included complex partial seizure, mild cognitive impairment, hypertension, vitamin B12
deficiency, and old left hemisphere lacunar stroke. He also noted that appellant presented with
confusion. Dr. Quirbach reviewed his systems in addition to laboratory and diagnostic test
results. He reported findings on physical examination and provided primary diagnoses of
transient global amnesia likely secondary to seizure, medication noncompliance, and possible
pneumonia. Dr. Quirbach reported secondary diagnoses of hypertension and seizure disorder. A
May 16, 2014 discharge summary provided instructions regarding appellant’s diagnosed
conditions. In reports dated October 6, 2014 and April 15 and May 22, 2015, Dr. Quirbach noted
appellant’s complaint of memory problems. He examined him and provided an impression of
memory loss, vascular dementia, partial seizure disorder, Crohn’s disease, and depression.
In a May 24, 2014 report, Dr. Colin O’Brien, Board-certified in emergency medicine,
indicated that appellant had a history of hypertension, mood disorder, and seizure disorder.
Appellant reported that two days ago he became essentially blind in both eyes for 20 minutes at
work. He also had sharp chest pain. Appellant reported that his supervisor was aware of his
symptoms, but no one elected to call paramedics. His symptoms resolved and on the following
day at work he was disoriented and did not recall who he was, where he was, or what he was
supposed to be doing. Appellant’s symptoms resolved after 20 minutes. He related that he did
not have any symptoms on the date of his examination. Dr. O’Brien noted his medical and social
history. He provided a review of systems and discussed findings on examination. Dr. O’Brien
assessed transient blindness and confusion and atypical chest pain.

3

In a May 27, 2014 report, Dr. Tatiana Nabioullina, a Board-certified psychiatrist and
neurologist, noted that appellant was seen at Dr. Quirbach’s request. She noted that he reported
not having a seizure since July 27, 2013 and that he had difficulty with short-term memory.
Dr. Nabioullina noted appellant’s history and described findings on physical and neurological
examination. She provided an impression of transient ischemic attack, unspecified, seizure
disorder, and memory loss. Dr. Nabioullina examined appellant on June 20, 2014 and noted a
history of two episodes of confusion in May 2014. Appellant reported that he had a loss of
vision and dysarthria for about 15 minutes during the first episode. He related that he did not
know where he was for 15 minutes during the second episode. Appellant had a similar event on
the night before his examination. He did not know his location or remember his friend’s name.
After 20 minutes appellant felt normal. Dr. Nabioullina reviewed appellant’s history, discussed
findings, and reiterated her prior impression of seizure disorder.
On August 22, 2015 Dr. Craig H. Lauer, a Board-certified family practitioner, noted that
appellant had a seizure while mowing the grass. He had known seizure disorder. Dr. Lauer
provided a review of systems and findings on examination. He noted an impression of known
seizure disorder. Dr. Lauer advised that appellant had no apparent injuries. He related that this
was his second seizure this year.
In a November 11, 2015 hospital discharge summary, Dr. Carla Fortique, a family
practitioner, noted appellant’s diagnoses which included seizure disorder. She related that,
according to him, he was involved in a motor vehicle accident and he presumed to have a
seizure. Appellant attributed the seizure to walking into and hitting his head against a steel
beam. OWCP also received evidence from a licensed practical nurse and reports of diagnostic
testing.2
On January 30, 2017 appellant requested a review of the written record by an OWCP
hearing representative regarding the January 18, 2017 decision.
By decision dated May 18, 2017, an OWCP hearing representative affirmed the
January 18, 2017 decision as modified. She accepted that the April 9, 2014 employment incident
occurred as alleged, but denied appellant’s claim finding that the medical evidence of record was
insufficient to establish a head condition causally related to the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,3 including an injury in the performance of duty and that any specific condition or

2
A May 15, 2014 magnetic resonance angiogram of the neck was negative. A June 25, 2014 chest x-ray showed
bilateral bronchiectasis and patchy increased markings seen in both upper lobes and in the right lower lobe which
may represent infiltrates. Other infectious or inflammatory etiology and underlying malignancy could not be
excluded.
3

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

4

disability for work for which compensation is claimed is causally related to that employment
injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment incident is insufficient to establish causal relationship.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury caused or aggravated by the accepted April 9, 2014 employment
incident. Appellant failed to submit sufficient medical evidence to establish a condition related
to head trauma that was causally related to the accepted employment incident.
In support of his claim, appellant submitted a series of reports from various physicians.
Dr. Quirbach examined appellant on May 15, 2014 and reported primary diagnoses of transient
global amnesia likely secondary to seizure, medication noncompliance, and possible pneumonia.
He further reported secondary diagnoses of hypertension and seizure disorder. Dr. Quirbach
repeated his diagnoses in a discharge summary dated May 16, 2014. In his reports dated
October 6, 2014 and April 15 and May 22, 2015, he discussed examination findings and
provided an impression of memory loss, vascular dementia, partial seizure disorder, Crohn’s
disease, and depression. The Board finds that Dr. Quirbach’s reports are insufficient to meet
appellant’s burden of proof as he failed to offer a medical opinion on whether appellant’s
diagnosed conditions were caused or aggravated by the accepted April 9, 2014 employment

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

5

incident. Medical evidence which does not offer an opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.10
Similarly, the reports from Drs. Nabioullina, O’Brien, Lauer, and Fortique as well as
reports of diagnostic testing are of limited probative value. The physicians addressed appellant’s
medical conditions, but failed to provide an opinion addressing whether the diagnosed conditions
were caused or aggravated by the accepted work incident.11 Dr. Fortique reported that appellant
felt that appellant’s seizure was caused by walking into and hitting his head against a steel beam.
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.12 Dr. Fortique merely repeated the history of injury reported by appellant without
providing her own rationalized opinion regarding the causal relationship between the accepted
April 9, 2014 employment incident and his diagnosed seizure disorder.13 For these reasons, the
Board finds that the physicians’ reports are insufficient to establish appellant’s burden of proof.
Appellant submitted medical reports of a licensed practical nurse. However, evidence
from a licensed practical nurse is of no probative medical value on the issue of causal
relationship as a practical nurse is not considered a physician as defined under FECA.14
The Board finds that appellant has failed to submit any rationalized, probative medical
evidence sufficient to establish that he sustained a head injury causally related to the April 9,
2014 employment incident. Appellant therefore did not meet his burden of proof.
On appeal appellant contends that he sustained a work-related head injury. For the
reasons set forth above, the Board finds that the weight of the medical evidence failed to
establish a head condition causally related to the accepted April 9, 2014 employment incident.
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.

10
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).
11

Id.

12

R.W., Docket No. 15-0345 (issued September 20, 2016); Robert A. Boyle, 54 ECAB 381 (2003).

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).
14

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
E.B., Docket No. 17-1862 (a nurse is not considered a physician under FECA).

6

CONCLUSION
The Board finds that appellant failed to submit sufficient medical evidence to establish a
condition related to head trauma that was causally related to the accepted April 9, 2014
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 18 and January 18, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 9, 2018
Washington, DC

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

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

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

7