United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Trenton, NJ, Employer
__________________________________________

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

Docket No. 07-2122
Issued: April 2, 2008

Case Submitted on the Record

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

JURISDICTION
On August 15, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ hearing representative’s decision dated March 2, 2007, affirming the
termination of compensation benefits effective July 8, 2006. 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 the Office met its burden of proof to terminate compensation for
wage-loss and medical benefits effective July 8, 2006.
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 In that appeal, the Board reversed
decisions of the Office dated March 11, June 4 and September 8, 1997, finding the evidence did
not establish appellant’s employment-related condition had ceased by September 13, 1995. The
1

Docket No. 98-607 (issued January 24, 2000).

history of the case is contained in the Board’s prior decision and is incorporated herein by
reference.
Appellant continued to receive compensation for wage loss as a result of her accepted
lumbosacral sprain. In a report dated June 8, 2004, Dr. Stephen Roman, an attending orthopedic
surgeon, diagnosed chronic low back pain, lumbar degenerative disc disease and lumbar facet
arthritis. He noted in his history that appellant had back pain since 1991 while lifting at work,
and appellant reported that she was out of work due to chronic pain.
The Office referred appellant to Dr. Lawrence Barr, an osteopath, for a second opinion
evaluation. In a report dated August 9, 2004, Dr. Barr provided a history and results on
examination. He diagnosed lumbar sprain with preexisting degenerative disc disease. Dr. Barr
stated there was causal relationship between a lumbar sprain and the June 1, 1991 work incident.
He also stated that appellant was able to work with modification of her job duties.
On September 9, 2004 the Office indicated that there was a conflict in the medical
evidence. Appellant was referred to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for
a referee examination. In a report dated September 24, 2004, Dr. Askin provided a history and
results on examination, diagnosing lumbosacral degenerative disc disease. He stated that
appellant had arthritic changes in the joints of her back, and, while it was theoretically possible
to so overwork a body part as to cause a substantive change, the nature of the employment injury
and the “continuation of complaints now 13 years later makes that unlikely to a reasonable
degree of medical certainty.” Dr. Askin noted that appellant was overweight and stated, “there is
nothing about the now ancient injury with any effect upon her prognosis, and there is no medical
treatment that could be done to her to effect ‘resolution’ or relief of the self-imposed
encumbrance.” He opined that there was no remaining injury-related disability, and no workrelated reason to prevent appellant from performing any employment. Dr. Askin indicated there
were no objective findings of an employment-related condition and no disabling residuals.
By letter dated October 29, 2004, the Office issued a notification of proposed termination
of compensation. On the same date the Office also issued a decision suspending compensation,
effective April 19, 2004, for a violation of 5 U.S.C. § 8123(d). This decision was reversed by an
Office hearing representative on December 23, 2005.
The record contains additional evidence from Dr. Barr received on December 13, 2004.
In a report dated September 24, 2004, Dr. Barr indicated that he had reviewed a videotape of
appellant made during an employing establishment investigation, and stated that it did not
change his opinion. He stated that there appeared to be an aggravation of a preexisting
condition, the lumbar sprain had ceased and appellant was left with problems associated with
degenerative disc disease. Dr. Barr reported that no conditions would prevent appellant from
returning to work, although a functional capacity evaluation would be helpful before returning to
full-time work. In a November 5, 2004 report, he reported that appellant had given a very poor
effort in the functional capacity evaluation and it was invalid. Dr. Barr stated that he saw no
reason why appellant could not return to work as a postal clerk without restrictions.
By letter dated April 13, 2006, the Office again advised appellant that it proposed to
terminate compensation for wage-loss and medical benefits. In a decision dated July 7, 2006, the

2

Office terminated compensation for wage-loss and medical benefits effective July 8, 2006.
Appellant requested a hearing before an Office hearing representative, which was held on
December 13, 2006. By decision dated March 2, 2007, the Office hearing representative
affirmed the July 7, 2006 decision. The hearing representative found that the weight of the
evidence was represented by Dr. Askin.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.3 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition that require further medical treatment.4
ANALYSIS
In this case the Office found there was a conflict in the medical evidence under 5 U.S.C.
§ 8123(a) and appellant was referred to Dr. Askin as a referee physician. The Office did not
clearly explain the basis for finding a conflict. An attending physician, Dr. Roman, did not offer
an opinion regarding a continuing employment-related disability. The second opinion physician,
Dr. Barr, indicated in his August 9, 2004 report that appellant could work with restrictions,
without further explanation. When the Office referred appellant to Dr. Askin, there was no
conflict in the medical evidence. Even though the report of Dr. Askin is not entitled to the
special weight afforded to the opinion of an impartial medical specialist resolving a conflict of
medical opinion, his reports can still be considered for their own intrinsic value and can still
constitute the weight of the medical evidence.5
In his September 24, 2004 report, Dr. Askin provided a rationalized medical opinion that
residuals of the employment injury had ceased. He reviewed the history and medical evidence,
the nature of the employment incident, the period of time since the injury and the lack of
objective findings. Dr. Askin provided an unequivocal opinion that appellant did not continue to
have an employment-related condition.
In addition, the additional reports from Dr. Barr further support a finding that
employment-related residuals had ceased. In his November 5, 2004 report, Dr. Barr noted the
results of a functional capacity evaluation and opined that appellant could work without
restrictions. On the other hand, appellant did not submit any probative evidence supporting that
she continued to have residuals or disability from the accepted lumbosacral strain. Neither
Dr. Roman nor any other attending physician provided a medical opinion on the relevant issue.
2

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

3

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

Frederick Justiniano, 45 ECAB 491 (1994).

5

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

3

The Board finds that the weight of the medical evidence supports the Office’s
determination that residuals of the employment injury had ceased as of July 8, 2006.6 It is the
Office’s burden of proof, and they met their burden in this case.
CONCLUSION
The Office properly terminated compensation for wage-loss and medical benefits
effective July 8, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2007 is affirmed.
Issued: April 2, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

Appellant argued the reports of Drs. Askin and Barr were almost two years old at the time of the termination,
but this does not diminish their probative value and any delay in terminating compensation was not adverse to
appellant.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Washington, MD, Employer
__________________________________________

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

Docket No. 09-2037
Issued: April 12, 2010

Case Submitted on the Record

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

JURISDICTION
On August 4, 2009 appellant filed a timely appeal from a February 26, 2009 decision of
the Office of Workers’ Compensation Programs that denied merit review. Because more than
one year has elapsed between the last merit decision dated December 6, 2007, and the filing of
this appeal on August 4, 2009, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a). On appeal appellant, through counsel, asserts that he was
entitled to a review on the merits of his claim for wage-loss compensation for the period May 15,
2004 through September 1, 2006 and that the medical evidence of record unequivocally
established that appellant was disabled for this period.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated February 22, 2007,
the Board found appellant had established a compensable factor of employment and remanded

the case to the Office for a review of the medical evidence in his emotional condition claim.1
The law and facts of the previous Board decision are incorporated herein by reference.
Subsequent to the Board’s February 22, 2007 decision, on May 15, 2007 the Office
accepted that appellant sustained employment-related aggravation of panic disorder and
precipitation of major depressive disorder, and advised him to file Form CA-7 claims for
compensation. Appellant thereafter filed claims for compensation covering the period May 15,
2004 to April 5, 2007.2 By letter dated July 9, 2007, the Office advised appellant that it had
reviewed the medical evidence and found that it did not contain a reasoned opinion discussing
the specific periods of claimed disability.3 It requested that appellant submit a reasoned medical
report from his attending psychiatrist, which explained how and why he was disabled from work,
based on the accepted factor of employment, that his medical condition was inappropriately
discussed by his supervisor.
In a report dated July 27, 2007, Dr. Sheehan advised that with a reasonable degree of
medical certainty appellant was temporarily totally disabled for the periods May 15, 2004 to
April 29, 2005, May 7, 2005 to March 18, 2006 and August 19 to September 1, 2006 “due to the
aggravation of his preexisting major depressive and panic disorder from the accepted
postmaster’s employment factor discussion of [his] medical condition with coworkers in a public
work location.” He concluded that the public humiliation and a hostile work environment led to
total partial temporary disability and that appellant needed continued psychiatric care.
The Office paid wage-loss compensation for the periods August 19 through September 1,
2006 and December 23, 2006 through January 5, 2007. By decision dated December 6, 2007, it
reviewed the medical evidence of record and denied appellant’s claim for monetary
compensation for the period May 15, 2004 to September 1, 2006. On November 25, 2008
appellant, through counsel, requested reconsideration and resubmitted Dr. Sheehan’s July 27,
2007 report. Appellant’s attorney argued that the medical evidence of record unequivocally
established entitlement to wage-loss compensation. In a February 26, 2009 decision, the Office
denied appellant’s reconsideration request on the grounds that his request neither raised
substantive legal questions nor included new and relevant medical evidence, noting that it had
previously reviewed Dr. Sheehan’s July 27, 2007 report and the arguments he presented
concerning total disability.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
1

Docket No. 06-2133 (issued February 2, 2007). The Board found that the additional claimed factors were not
compensable.
2

The record indicates that appellant worked part time for some of this period.

3

The Office noted that the last medical report received, a July 25, 2005 report from Dr. Patrick J. Sheehan, a
Board-certified psychiatrist, did not discuss periods of disability, and that an August 27, 2004 report from Dr. Darryl
Dillman, also Board-certified in psychiatry, advised that appellant’s condition worsened due to a May 12, 2004 work
incident, which was not accepted as employment related.
4

5 U.S.C. §§ 8101-8193.

2

either under its own authority or on application by a claimant.5 Section 10.608(a) of the Code of
Federal Regulations provides that a timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence and/or argument that meets at least
one of the standards described in section 10.606(b)(2).6 This section provides that the
application for reconsideration must be submitted in writing and set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; or (ii) advances a relevant legal argument not previously considered by the Office; or (iii)
constitutes relevant and pertinent new evidence not previously considered by the Office.7
Section 10.608(b) provides that when a request for reconsideration is timely but fails to meet at
least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.8
ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of the Office
dated February 26, 2009 denying appellant’s applications for review. Because more than one
year had elapsed between the date of the most recent merit decision in this case, the Office
decision dated December 6, 2007 and the filing of appellant’s appeal with the Board on
August 4, 2009, the Board lacks jurisdiction to review the merits of appellant’s claim.9
With his November 25, 2008 reconsideration request, appellant argued that the Office
erred in denying merit review and that the medical evidence unequivocally established his claim
for wage-loss compensation. Although counsel purports to advance a legal argument not
previously considered, his argument amounts to the equivalent of a request to reweigh the
evidence of record, and arguments that repeat those previously of record have no evidentiary
value and do not constitute a basis for reopening a case.10 In its December 6, 2007 merit
decision, the Office weighed the medical evidence of record and found that it was insufficient to
establish entitlement to wage-loss compensation for the claimed periods. Appellant therefore did
not allege or demonstrate that the Office erroneously applied or interpreted a specific point of
law, or advance a relevant legal argument not previously considered by the Office.
Consequently, he was not entitled to a review of the merits of his claim based on the first and
second above-noted requirements under section 10.606(b)(2).11
With respect to the third above-noted requirement under section 10.606(b)(2), on
reconsideration appellant submitted a July 27, 2007 report from Dr. Sheehan. This report had

5

Id. at § 8128(a).

6

20 C.F.R. § 10.608(a).

7

Id. at § 10.608(b)(1) and (2).

8

Id. at § 10.608(b).

9

Id. at § 501.3(d)(2).

10

M.E., 58 ECAB 694 (2007).

11

20 C.F.R. § 10.606(b)(2).

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previously been reviewed by the Office, and evidence that repeats or duplicates evidence of
record has no evidentiary value and does not constitute a basis for reopening a case.12
As appellant did not show that the Office erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by the Office, the Office properly denied his reconsideration
request.13
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
consideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).14
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2009 be affirmed.
Issued: April 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Freddie Mosley, 54 ECAB 255 (2002).

13

Supra note 7.

14

The Board notes that Office procedures provide that when a reconsideration decision is delayed beyond 90 days
and the delay jeopardizes the claimant’s right to have review of the merits of the case by the Board, the Office
should conduct a merit review. Janice M. Hatcher, 55 ECAB 155 (2003). In this case, however, appellant was not
jeopardized as the merit decision was issued on December 6, 2007 and appellant did not request reconsideration
until November 25, 2008.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 08-1960
Issued: May 5, 2009

Case Submitted on the Record

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

JURISDICTION
On July 7, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 12, 2008 in which an Office hearing
representative affirmed the termination of his entitlement to wage-loss compensation. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof in terminating appellant’s
entitlement to wage-loss compensation benefits for the period beginning November 2, 2007.
FACTUAL HISTORY
On July 18, 2005 appellant, then a 42-year-old nondestructive tester, filed a traumatic
injury claim alleging that on June 11, 2005 he suffered pain in the right side of his buttocks and
lower back when he slipped and fell while stepping off of a platform. He stopped work on
July 11, 2005. The Office accepted the claim for displaced lumbar intervertebral disc and
authorized an L5-S1 microdiscectomy, which appellant underwent on August 23, 2005. On

March 6, 2006 Dr. Blake G. Welling, a Board-certified neurosurgeon, released appellant from
care and advised that he could return to unrestricted work. On March 13, 2006 Dr. Douglas
Shepherd, a physiatrist, released appellant to work with no restrictions. He stated that appellant
should work four hours a day gradually increasing the number of hours worked. On April 3,
2006 Dr. Shepherd noted that appellant was capable of working full duty. On April 24, 2006 he
advised that appellant reached maximum medical improvement and could continue to work full
duty.
In a consultation report of September 15, 2006, Dr. David J. Nathan, a neurosurgeon,
noted that appellant had experienced significant midline low back pain and buttock pain for
approximately one year. He advised that the pain was incapacitating, noting that appellant was
unable to work and had been having issues with his employment as a result. In a September 15,
2006 return to work form, Dr. Nathan advised that appellant had low back and leg pain and
weakness due to lumbar herniated disc, which required surgical intervention. He advised that
appellant was to remain off work until February 2007.
In a letter dated September 27, 2006, the employing establishment issued a notice of
proposed removal to appellant on the basis of unauthorized absence of more than 10 consecutive
calendar days and disregard of directives. Appellant was provided 20 days to respond.
On October 17, 2006 appellant underwent a lumbar fusion and did not return to work.
The Office authorized the surgery. It also paid continuing wage-loss compensation after his
surgery.
By letter dated November 1, 2006, the employing establishment notified appellant that he
was terminated from employment effective October 31, 2006. It noted that appellant did not
reply to its September 27, 2006 removal proposal. The employing establishment found that both
charges were supported by the evidence and warranted his removal. It also advised that either of
the charges, when considered separately, would result in a decision to remove.
On May 29, 2007 Dr. Nathan released appellant to work with restrictions.
On July 16, 2007 the Office contacted the employing establishment advising that
appellant was able to return to work with restrictions. It inquired regarding whether the
employing establishment had employment available for appellant within his restrictions. On
July 19, 2007 the employing establishment advised the Office that it was unable to offer
appellant work as he was no longer an employee. The employing establishment submitted
documents indicating that appellant had resigned his position in lieu of being removed.
In a September 5, 2007 report, Dr. Nathan advised that appellant reached maximum
medical improvement. Appellant was released to work with permanent restrictions.
On September 18, 2007 the Office issued a notice of proposed denial of compensation for
wage-loss benefits. It noted that appellant had been released to return to work on
September 5, 2007. The Office also found that on November 1, 2006 he had been terminated for
cause from the employing establishment and that there was no evidence that he was terminated
because of the effects of his work injury. Appellant was afforded 30 days to submit evidence in
support of his claim.
2

In an October 17, 2007 letter, appellant stated that he had been under physician’s care for
his work injury since July 11, 2005 and he was still under physician’s care when he was
terminated on October 31, 2006.
By decision dated November 2, 2007, the Office terminated appellant’s entitlement to
compensation for wage-loss benefits effective November 2, 2007 as he was terminated from his
employment for cause.1 It noted that appellant was paid temporary total disability for the work
injury after the employing establishment terminated him as the medical evidence supported a
continuing work-related total disability. The Office found, however, appellant was no longer
entitled to continuing wage loss for temporary total disability as the medical evidence now
supports that appellant is capable of returning to work. It further found that appellant was not
able to return to work due to the fact he was terminated for cause and not because of his work
injury.
On November 13, 2007 appellant, through his attorney, disagreed with the November 2,
2007 decision and requested a telephonic hearing. A telephonic hearing was held on
February 12, 2008.
In a March 7, 2008 letter, the employing establishment advised that appellant had
voluntarily resigned on October 31, 2006 in lieu of removal. A copy of the corrected standard
Form 50 was attached.
By decision dated June 12, 2008, the Office hearing representative affirmed the Office’s
decision terminating entitlement to wage-loss compensation benefits on or after
November 2, 2007. The hearing representative found that appellant’s work stoppage on or after
November 2, 2007, the date appellant’s wage-loss compensation benefits were terminated, was
not due to his physical inability to perform his assigned duties, but rather was a result of
misconduct.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2 Once
the Office accepts a claim, it has the burden of proof to justify termination or modification of
compensation benefits.3 After it has determined that an employee has disability causally related
to his federal employment, the Office may not terminate compensation without establishing that
the disability has ceased or that it is no longer related to the employment.4
1

The Office advised that appellant’s medical treatment benefits remained open for necessary treatment for his
accepted condition and that the decision did not affect his entitlement to a schedule award for any established workrelated permanent partial impairment.
2

5 U.S.C. § 8102(a).

3

Harold S. McGough, 36 ECAB 332 (1984).

4

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

3

The Board has held that when a claimant stops work for reasons other than his accepted
employment injury, he has no disability within the meaning of the Act.5
ANALYSIS
The Office accepted that appellant sustained a displaced lumbar intervertebral disc on
June 11, 2005 as a result of a slip and fall. The record reflects it authorized appellant’s
October 17, 2006 surgery and paid appropriate wage-loss compensation. This includes the
period of time after appellant underwent his authorized surgery and was totally disabled. The
evidence reflects that appellant was temporary totally disabled until Dr. Nathan released him to
work with restrictions on May 29, 2007 and again on September 5, 2007.
The evidence further reflects that appellant was initially removed for cause from his job
on October 31, 2006. Subsequently, the employing establishment modified this to reflect that
appellant resigned in lieu of being removed. The Board has held that, when a claimant stops
works for reasons unrelated to his accepted employment injury, he has no disability within the
meaning of the Act.6 In this case, the evidence supports that appellant’s resignation on
October 31, 2006 was precipitated by the employing establishment’s impending termination for
misconduct unrelated to his work injury. The employing establishment informed appellant that
he was going to be terminated for cause. In its September 27, 2006 letter, the employing
establishment notified appellant that it planned to remove him from employment on the basis of
unauthorized absence of more than 10 consecutive calendar days and for disregard of directives.
Appellant was given a chance to respond but he did not reply to the employing establishment’s
letter prior to his separation from the employing establishment. Accordingly, the evidence
supports that appellant’s resignation on October 31, 2006 was precipitated by the employing
establishment’s proposed removal due to unauthorized absences and disregard of directives.
Thus, appellant’s separation from his job on October 31, 2006 was due to reasons other than his
accepted employment injury.
However, on October 17, 2006 appellant underwent authorized surgery, which rendered
him totally disabled until May 29, 2007 when Dr. Nathan released him to return to work with
restrictions. On September 5, 2007 Dr. Nathan again opined that appellant could return to work
with restrictions. Thus, as appellant was totally disabled from October 17, 2006 until May 29,
2007, the Office properly paid him total disability compensation since residuals of his work
injury precluded him from performing any type of work. After Dr. Nathan released appellant to
restricted work on May 29, 2007, however, it was reasons other than his accepted employment
injury that precluded him from returning to work. As appellant’s employment injury was no
longer the reason for him not working, the Office properly terminated his wage-loss benefits
effective November 2, 2007. After he was provided notice of the proposed termination of
compensation on September 18, 2007, he did not proffer any medical evidence that he remained
totally disabled due to his accepted condition. The most current medical evidence before the

5

John W. Normand, 39 ECAB 1378 (1988).

6

See Richard A. Neidert, 57 ECAB 474 (2006). See also John W. Normand, supra note 5; Federal (FECA)
Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(1)(c) (May 1997).

4

Office at the time of its November 2, 2007 decision supported that appellant could return to work
with restrictions.
While appellant asserts that he was still under medical care when he was terminated on
October 31, 2006,7 he has not alleged nor does the record establish that his resignation was
precipitated for reasons other than misconduct. He did not submit any evidence to establish that
his proposed termination was in error or withdrawn or that it was precipitated by his employment
injury. The fact that appellant resigned on October 31, 2006 does not change the fact that the
withdrawal of his position was premised on the misconduct. As the withdrawal of his position
was premised on misconduct, he was not entitled to wage-loss compensation when his total
disability ceased and he was released to return to work with restrictions.
As there is no evidence that appellant’s inability to return to work was related to any
continuing work injury, the Office met its burden of proof in terminating his wage-loss
compensation effective November 2, 2007.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation on and after November 2, 2007.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
hearing representative’s decision dated June 12, 2008 is affirmed.
Issued: May 5, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

It is noted that the Office paid temporary total disability until it terminated appellant’s wage-loss compensation
benefits effective November 2, 2007.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF DISABILITY ADJUDICATION &
REVIEW, Atlanta, GA, Employer
__________________________________________

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

Docket No. 18-0834
Issued: June 11, 2020

Case Submitted on the Record

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

JURISDICTION
On March 13, 2018 appellant, through counsel, filed a timely appeal from a February 5,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On July 21, 2017 appellant, then a 58-year-old legal assistant, filed an occupational disease
claim (Form CA-2) alleging that she developed a cervical condition with radiculitis and brachial
plexus and nerve impingement conditions as a result of repetitive use of a computer, mouse, and
keyboard while in the performance of duty. She noted that she first became aware of her condition
on January 1, 2017 and first realized its relation to her federal employment on May 15, 2017.
Appellant did not stop work.
In an accompanying statement, appellant discussed the medical treatment she had received
for her claimed conditions.
In a development letter dated July 25, 2017, OWCP advised appellant of the type of
evidence needed to establish her claim, including a physician’s reasoned opinion addressing the
relationship between her claimed condition and specific employment factors. It provided a factual
questionnaire for her completion and afforded her 30 days to submit the necessary evidence.
In response to the development letter, appellant submitted a July 31, 2017 narrative
statement in which she explained that, in addition to her computer duties, her legal assistant
position required her to pull down case files and handle/organize documents from the files. In an
August 9, 2017 statement, she further discussed her medical treatment.
Appellant submitted a May 18, 2017 report from Dr. Colin Chan, a Board-certified family
practitioner, who indicated that she could not lift over 10 pounds. On June 12, 2017 Dr. Duyen
Ngo, a chiropractor, noted that x-rays revealed a new pattern misalignment in the upper cervical
complex, including C2 rotation which had increased a few degrees to the right. A July 3, 2017
magnetic resonance imaging (MRI) scan of the cervical spine revealed diffuse disc bulge
impressing upon the ventral thecal sac at C5-6 and C6-7, and mild central stenosis at C6-7.
In a July 11, 2017 note, Dr. Michael Hadley, an osteopath and family practitioner,
diagnosed cervicalgia with radiculopathy and right arm weakness. In a separate note of even date,
he recommended that appellant not lift with her left arm or use her right arm at all. In an August 10,
2017 report, Dr. Hadley diagnosed cervical stenosis, cervical neural foraminal stenosis, and
cervical herniated disc. He advised that appellant was disabled from work from July 10 to
November 15, 2017 and that she was then limited to two hours of computer work. In a duty status
report (Form CA-17) dated August 10, 2017, Dr. Hadley advised that she complained of worsening
symptoms due to her work duties. He reported clinical findings of arm weakness and severe pain,
and opined that appellant remained disabled from work.
In an August 5, 2017 note, Paulette Levy, a nurse practitioner, indicated that appellant was
treated on August 4, 2017 and advised that she remained disabled from work. In another note of
even date, she diagnosed numerous cervical conditions.

2

By decision dated August 28, 2017, OWCP accepted that the employment factors occurred
as alleged. However, it denied appellant’s occupational disease claim, finding that she had not
submitted evidence containing a medical diagnosis in connection with the accepted factors.
On December 5, 2017 appellant requested reconsideration of the August 28, 2017 decision
and submitted additional evidence.
In an August 23, 2017 Form CA-17 report, Dr. Allan M. Spiegel, a Board-certified
neurologist, diagnosed cervical radiculopathy, spinal stenosis, and cervical herniated discs. He
noted that appellant could resume part-time work for four hours per day with restrictions.
In an August 25, 2017 report, Dr. Spiegel noted that appellant spent 100 percent of her time
using a computer, keyboard, and mouse, and pulling files, reaching, and lifting daily. Appellant
complained of right arm paresthesia with cervical pain “exacerbated by long-term prolonged
computer work and repetitive motion work causing chronic muscle strain and brachial
neuropathy.” Dr. Spiegel noted restricted range of motion of the neck, tenderness/spasm from the
mid cervical spine, diminished sensation in the right upper extremity to pinprick, intact motor
strength, and intact reflexes. He diagnosed cervical radiculopathy, cervical degenerative disc
disease, right carpal tunnel syndrome, and repetitive stress aggravation of medical condition, and
opined that these conditions were a direct result of appellant’s employment duties.3
In a November 21, 2017 report, Dr. Spiegel noted appellant’s duties and diagnosed
paresthesia (right upper extremity), aggravation of displaced discs at C3-4 and C4-5, aggravation
of stenosis with nerve impingement, cervical radiculopathy, aggravation of osteophytes at C5-6
and C6-7, and repetitive stress aggravation of her condition. He reviewed a July 24, 2017 MRI
scan, noting that it demonstrated a worsening of her condition, specifically, severe left neural
foraminal narrowing at C6-7 and an osteophyte complex which extended into the right neural
foramen at C6-7.4 Dr. Spiegel opined that appellant developed cumulative trauma disorder
stemming from prolonged sitting and repetitive arm/hand movements resulting in aggravation to
the muscles, tendons, and nerves of the cervical spine and right shoulder. He explained that, during
the course of her career with the employing establishment, she spent approximately 10,000 hours
sitting in front of a computer screen with her cervical spine in a static position, performing
repetitive motions, and remaining sedentary for the majority of her workday. Dr. Spiegel opined
that static sitting and performing repetitive movements aggravated appellant’s cervical spine
conditions by overstretching her spinal ligaments and putting additional pressure on the displaced
discs. He indicated that the worsening of her condition occurred without external cause, other
accidents, illnesses, or injuries, as no change in job duties, nonwork-related events, or factors
3

In a November 17, 2017 work capacity evaluation (Form OWCP-5c), Dr. Spiegel returned appellant to limitedduty work for 20 to 30 hours a week depending on her pain level. He diagnosed cervical radiculopathy, paresthesia,
and displaced disc at C3 to C5 with stenosis.
4

Appellant submitted a cervical spine MRI scan dated June 15, 2012 which demonstrated very minor cervical
kyphosis from C4 to C6 and minor-to-mild disc bulges from C4-5 to C6-7 with minor neural structure compromise.
A right shoulder MRI scan dated June 21, 2012 demonstrated possible minor subacromial bursitis. Appellant also
submitted the July 24, 2017 MRI scan referenced by Dr. Spiegel, which contained an impression of C6-7 moderateto-severe left neural foraminal narrowing, C5-6 moderate-to-severe right and left neural foraminal narrowing, and
broad-based central disc bulges at C3-4 and C4-5.

3

explained the worsening condition. Rather, Dr. Spiegel opined that the current diagnoses arose
out of and in the course of her job duties. In conclusion, he opined that, within a reasonable degree
of medical certainty, based on examination, imaging studies, reports, and medical records, the
cause of appellant’s diagnosed conditions was her job duties, which required her to sit for extended
periods of time constricting and compressing the vertebrae in her cervical spine and aggravating
her cervical conditions. Dr. Spiegel noted that she was disabled from work from July 10 to
August 23, 2017.
In a form report also dated November 21, 2017, Dr. Spiegel diagnosed cervical
radiculopathy, paresthesia (right upper extremity), displaced disc at C3-4 and C4-5, spinal stenosis
with nerve impingement, and repetitive stress aggravation secondary to prolonged computer use.
He noted that appellant’s condition was permanent and she could work with restrictions.
On December 22, 2017 OWCP requested that Dr. Spiegel clarify his opinion. It
specifically requested that he address whether appellant’s “age-related” degenerative condition of
the spine was aggravated by her work activities, and to differentiate any aggravation caused by
work activities from the underlying condition.
In a report dated January 8, 2018, Dr. Spiegel indicated that appellant had underlying
cervical spine degeneration which was aggravated and worsened by prolonged, repetitive
computer work. He referenced significant changes in the MRI scans dated June 15, 2012 and
July 24, 2017 with the current MRI scan detailing cervical flexion and extension bulging discs,
bone spur, and osteophyte clusters at C5-6 and C6-7. Dr. Spiegel advised that the changes
progressed over time and correlated to appellant’s daily prolonged computer use, involving
continuous forward and backward head movements, and use of her dominate right arm for
computer entry and mouse use. He indicated that she had developed cumulative trauma disorder
stemming from prolonged sitting and repetitive right arm and hand movements. Dr. Spiegel
advised that this resulted in continuous aggravation to the muscles, tendons, and nerves of the
cervical spine, right shoulder, and arm due to severe compression of her spine.
In a separate report dated January 8, 2018, Dr. Spiegel provided a similar assessment of
the cause of appellant’s diagnosed conditions. He noted that her repetitive employment duties
placed stress and loading on her cervical spine, causing muscle strain from overstretching her
spinal ligaments and putting additional pressure on her displaced cervical discs due to static sitting
and repeating the same movements over and over again. Dr. Spiegel advised that no nonwork
events or factors would explain the worsening of her cervical condition. Rather, appellant’s
cervical condition was aggravated by sitting at work for extended periods while performing job
duties that constricted and compressed her cervical vertebrae. In a January 19, 2018 report,
Dr. Spiegel repeated the same findings.
On January 23, 2018 OWCP referred appellant’s medical records to Dr. Todd Fellars, a
Board-certified orthopedic surgeon serving as a district medical adviser (DMA). In a report dated
January 30, 2018, the DMA noted his review of the reports of Dr. Spiegel and the MRI scans and
opined that the change in the spinal condition was the natural progression of chronic degenerative
condition. He referenced “causation guides” published by the American Medical Association and
noted that the guidance indicated that there was no established link between sedentary work and

4

aggravation or acceleration of cervical disc disease, and further indicated that the degeneration of
her spine was due to genetics and was not work related.
By decision dated February 5, 2018, OWCP modified its August 28, 2017 decision to find
that the medical evidence of record established several diagnosed medical conditions, and thus
appellant had established fact of injury. However, the claim remained denied as she had not
established causal relationship between her work activities and diagnosed medical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or medical condition for which compensation is claimed is causally related to the employment
injury.6 These are the essential elements of every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
5

Supra note 2.

6

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
7

K.V., id., and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989

8
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

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

11

Victor J. Woodhams, supra note 8.

5

ANALYSIS
The Board finds that this case is not in posture for decision.
In his reports dated November 21, 2017 and January 8 and 19 2018, Dr. Spiegel opined
that appellant developed cumulative trauma disorder stemming from prolonged sitting and
repetitive arm/hand movements resulting in aggravation to the muscles, tendons, and nerves of the
cervical spine and right shoulder. He provided a proper factual and medical history of injury,
noting that, during the course of her career with the employing establishment, she spent
approximately 10,000 hours sitting in front of a computer screen with her cervical spine in a static
position, performing repetitive duties including the use of a computer keyboard and mouse, pulling
files, reaching, and lifting daily while remaining sedentary for the majority of her workday.
Dr. Spiegel opined that static sitting and performing repetitive movements aggravated appellant’s
cervical spinal conditions by overstretching her spinal ligaments and putting additional pressure
on the displaced discs. He indicated that the worsening of her condition occurred without external
cause, other accidents, illnesses, or injuries, as no change in job duties, nonwork-related events, or
factors explained the worsening condition. Rather, Dr. Spiegel opined that the current diagnoses
arose out of and in the course of appellant’s job duties and correlated to her daily prolonged
computer use. In conclusion, he opined that, within a reasonable degree of medical certainty,
based on examination, imaging studies, reports, and medical records, the cause of her diagnosed
conditions was her job duties, which required her to sit for extended periods of time constricting
and compressing the vertebrae in her cervical spine and aggravating her cervical conditions.
The Board finds that these reports from Dr. Spiegel are sufficient to require further
development of the medical evidence. Dr. Spiegel is a Board-certified physician in neurology who
is qualified in his field of medicine to render rationalized opinions on the issue of causal
relationship and he provided a comprehensive understanding of the medical record and case
history. His reports suggest a pathophysiological explanation as to how appellant’s prolonged
sitting and repetitive arm/hand movements at work resulted in her diagnosed cervical condition
with radiculitis, and brachial plexus and nerve impingement conditions. The Board has long held
that it is unnecessary that the evidence of record in a case be so conclusive as to suggest causal
connection beyond all possible doubt. Rather, the evidence required is only that necessary to
convince the adjudicator that the conclusion drawn is rational, sound, and logical.12 Accordingly,
Dr. Spiegel’s medical opinion is well-rationalized and logical and is therefore sufficient to require
further development of appellant’s claim.13
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares

12

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
13

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).

6

responsibility in the development of the evidence.14 OWCP has an obligation to see that justice is
done.15
On remand OWCP shall refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician shall provide a well-rationalized
opinion as to whether her diagnosed cervical condition with radiculitis, and brachial plexus and
nerve impingement conditions are causally related to or aggravated by the accepted employment
factors. After such further development of the case record as OWCP deems necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 11, 2020
Washington, DC

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

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

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

14

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
15
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & BULK MAIL CENTER,
Jersey City, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1443
Issued: July 2, 2012

Case Submitted on the Record

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

JURISDICTION
On June 2, 2011 appellant, through her attorney, filed a timely appeal of the
December 21, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her recurrence of disability 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 merits of
this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability on
January 5, 2010 causally related to her accepted employment injury.
On appeal, counsel contends that appellant sustained a recurrence of disability when she
was removed from her position due to her accepted injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 11, 2006 appellant, then a 40-year-old mail handler filed an occupational disease
claim (Form CA-2) alleging that on March 27, 2006 she first became aware of her lumbar injury
with radiculopathy and realized that this condition was caused by operating a forklift and lifting
and carrying mail.2 She stopped work on March 27, 2006. OWCP accepted appellant’s claim on
October 19, 2007 for lumbosacral strain based on the September 21, 2007 medical opinion of
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon and OWCP referral physician.3 In his
September 21, 2007 report, Dr. Lakin also found that appellant had preexisting lumbar
degenerative disc disease since 2004 which caused her to stop work on March 27, 2006. He
opined that the diagnosed condition was not causally related to her employment. Dr. Lakin
advised that appellant could not return to regular-duty work as a mail handler and forklift
operator, but she could perform modified-duty work with restrictions. He further advised that
her accepted lumbosacral strain condition did not require any further medical treatment.
Effective December 24, 2007, appellant began working in a full-time modified mail
handler/equipment operator position.
On March 31, 2010 appellant filed a claim for a recurrence of disability on
January 5, 2010. She was sent home by the employing establishment because it could no longer
provide her with work. On the claim form, the employing establishment stated that, following
the accepted injury, it gave appellant a light-duty assignment because she could not drive a
powered motor vehicle.
Surgical reports dated January 21 and February 18, 2010 from Dr. Alfred L. Mauro, a
Board-certified anesthesiologist, indicated that appellant received an epidural injection to treat
her thoracic and lumbosacral neuritis and radiculitis. In other reports dated February 8 and 18,
2010, he advised that appellant had low back pain with left-sided leg pain.
Reports dated January 21 and March 18 through 30, 2010 from appellant’s physical
therapists addressed the treatment of her thoracic/lumbosacral neuritis/radiculitis.
In a February 3, 2010 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
advised that appellant had continuing low back pain for which she was treated. He stated that
she was sent home from work due to his failure to specifically identify the number of hours she
could manually grasp. In another February 3, 2010 report, Dr. Filippone advised that appellant
had lumbar radiculopathy and listed her physical restrictions.

2

Prior to the instant claim, appellant filed a Form CA-2 under OWCP File No. xxxxxx846 for a back injury
sustained on September 29, 2005. On December 30, 2005 OWCP denied the claim, finding that the medical
evidence was insufficient to establish that she sustained an injury causally related to her alleged employment factors.
On the instant Form CA-2, appellant stated that following her September 29, 2005 injury she returned to light-duty
work. At the time she filed the instant claim, she was performing light-duty work as a mail handler and forklift
operator.
3

Dr. Lakin further advised that appellant’s underlying lumbar degenerative condition could be treated with pain
management.

2

By letter dated April 22, 2010, OWCP advised appellant that the medical evidence of
record indicated that her preexisting lumbar degenerative disc disease and not the accepted
lumbar condition prevented her from returning to her date-of-injury position and that she no
longer had any residuals of the accepted condition. It appeared that the employing establishment
did not remove a limited-duty assignment stemming from a work injury, but rather removed a
light-duty assignment which accommodated appellant’s nonwork-related condition. If so,
OWCP advised appellant that her recurrence claim would not be compensable. It addressed the
factual and medical evidence she needed to submit to establish her claim. OWCP requested that
the employing establishment review appellant’s allegations and provide an explanation for the
removal of her light-duty job within 30 days. The employing establishment did not respond.
In reports dated March 22, April 22 and June 3, 2010, Dr. Filippone reported appellant’s
continuing back pain, listed findings on physical examination and addressed her treatment plan.
In the April 22, 2010 report, he stated that, despite setting forth her restrictions, the employing
establishment had not allowed her to return to work.
In reports dated April 6 through June 10, 2010, appellant’s physical therapists addressed
the treatment of her thoracic/lumbosacral neuritis/radiculitis.
By letter dated May 17, 2010, OWCP referred appellant for a second opinion, together
with the medical record and statement of accepted facts, to Dr. Wayne J. Altman, a Boardcertified orthopedic surgeon. In a June 7, 2010 report, Dr. Altman obtained a history of
appellant’s employment and medical background including, her back problems. He noted her
complaints of pain in her upper and lower back and left leg. Dr. Altman reviewed appellant’s
medical records and listed findings on physical examination. He diagnosed osteoarthritis in the
lumbar spine. Dr. Altman advised that there was no evidence to establish a work-related link to
the diagnosis. It had not been proven that driving a hi-lo for 15 years would cause osteoarthritis
in an individual. Dr. Altman advised that appellant could return to work eight hours a day with
permanent restrictions related to the ongoing degenerative process in her back. He concluded
that she was not a candidate for orthopedic surgery based on his clinical findings and review of
her medical records.
In a June 24, 2010 decision, OWCP denied appellant’s claim for a recurrence of disability
commencing January 5, 2010 based on Dr. Altman’s medical opinion as the weight of the
medical evidence.
On July 19, 2010 appellant requested an oral hearing before an OWCP hearing
representative.
In an April 30, 2009 report, Dr. Deepak V. Patel, a Board-certified orthopedic surgeon,
advised that appellant had chronic low back pain with left lower extremity radiculopathy and
recently developed right lower extremity radiculopathy that were likely caused by the alleged
September 29, 2005 injury.
In prescriptions dated December 15 and 30, 2009, Dr. Filippone addressed appellant’s
inability to work since December 9, 2009 due to a significant flare-up of low back pain radiating
to her leg. On December 30, 2009 he released her to return full-time limited-duty work as of

3

January 4, 2010. In reports dated June 15 through November 29, 2010, Dr. Filippone noted
appellant’s complaint of continuing back pain and disability for work on intermittent dates from
February 2 to December 9, 2009. He also noted management’s refusal to allow her to return to
work despite the physical restrictions he established for full-time limited-duty work.
Dr. Filippone listed findings on physical examination and diagnostic testing. He advised that
other than a low back injury sustained as a result of a minor motor vehicle accident in 1989
which improved after a few months with physical therapy, appellant had no history of back pain
or radicular complaints outside the claimed work injury. In the June 15 and November 29, 2010
reports, Dr. Filippone advised that she had lumbosacral disc herniation at L1-2 and bilateral
lumbar radiculopathy at L5-S1. In the June 15, 2010 report, he opined that the diagnosed
conditions were solely caused by the strain placed on appellant’s body while performing her
work duties at the employing establishment for over 18 years. In the November 29, 2010 report,
Dr. Filippone opined that her bilateral lumbar radiculopathy at L5-S1 was related to the accepted
injury.
Reports dated April 28 and 30, 2010 from appellant’s physical therapist addressed the
treatment of her thoracic/lumbosacral neuritis/radiculitis.
During the November 5, 2010 hearing, appellant testified that on January 5, 2010 the
employing establishment advised her that it did not have any work available within her 10-pound
lifting restriction and she was sent home. Her attorney contended that she sustained a recurrence
of disability due to the withdrawal of her light-duty work assignment.
In a December 21, 2010 decision, OWCP’s hearing representative affirmed the June 24,
2010 decision, finding that the withdrawal of appellant’s limited-duty assignment did not
constitute a recurrence of disability commencing January 5, 2010 based on the medical opinions
of Dr. Altman and Dr. Lakin, who found that the accepted lumbar condition had resolved as of
2007. The hearing representative also found there was no evidence establishing that appellant’s
limited-duty assignment was provided due to her accepted condition. Appellant’s physical
restrictions related to her preexisting lumbar degenerative disc disease which had not been
accepted as employment related by OWCP.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 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 or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force) or when the

4

20 C.F.R. § 10.5(x).

4

physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.5
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 of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that 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.6
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.7
ANALYSIS
OWCP accepted that appellant sustained a lumbosacral strain while in the performance of
duty.
Following this injury, she returned to full-time modified-duty work effective
December 24, 2007. Appellant claimed a recurrence of disability commencing January 5, 2010.
She must demonstrate either that her work-related condition has changed such that she could not
perform the activities required by her modified job or that the requirements of the modified lightduty job had changed. The Board finds that the record contains no evidence that the modified
light-duty job requirements were changed or withdrawn or that her employment-related
condition has changed such that they precluded her from performing the modified-duty work.
OWCP relied on the September 21, 2007 medical opinion of Dr. Lakin and the June 7,
2010 report of Dr. Altman, OWCP’s referral physicians, in denying appellant’s recurrence claim.
Dr. Lakin found that the accepted lumbosacral strain condition did not require any further
medical treatment. He also found that although appellant could not return to her regular work
duties as a mail handler and forklift operator, she could perform modified-duty work with
restrictions. Dr. Lakin advised that her preexisting nonemployment-related lumbar degenerative
disc disease which she had since 2004 caused her disability for work on March 27, 2006. He
stated that the degenerative condition could be treated with pain management.
Dr. Altman found that appellant had lumbar osteoarthritis, that she could work eight
hours a day with permanent restrictions related to the ongoing degenerative process in her back
and that she was not a candidate for orthopedic surgery. He reviewed her medical record and
listed physical examination findings. Dr. Altman advised that there was no evidence to establish
5

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(1)(c)
(January 1995).
6

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
7

James H. Botts, 50 ECAB 265 (1999).

5

a causal relationship between the diagnosed condition and appellant’s employment. He stated
that there was no proof that driving a hi-lo for 15 years would cause osteoarthritis in an
individual. The Board finds that the reports of Dr. Lakin and Dr. Altman establish that the
accepted lumbosacral strain had resolved prior to the employing establishment’s December 24,
2007 limited-duty job offer and that the limited job that had been offered for his lumbar
osteoarthritis was not work related. Therefore, the Board finds that the evidence shows that
appellant did not establish a recurrence of disability commencing January 5, 2010.
The Board finds that the weight of the medical opinion is determined by the opportunity
for and thoroughness of examination, the accuracy and completeness of a physician’s knowledge
of the facts of the case, the medical history provided the care of analysis manifested and the
medical rationale expressed in support of stated conclusions.8 Dr. Lakin and Dr. Altman fully
discussed the history of injury and related their comprehensive examination findings in support
of their opinion that appellant had no residuals or disability causally related to her accepted
lumbosacral strain.
Dr. Filippone, an attending physician, submitted several reports which found that
appellant had low back pain radiating to her leg, lumbar disc herniation at L1-2 and bilateral
lumbar radiculopathy at L5-S1. He advised that she could return to work with restrictions and
addressed her treatment plan. While Dr. Filippone found in a June 15, 2010 report that
appellant’s diagnosed lumbar conditions were related to the work duties she performed over 18
years, he did not describe the specific duties she had been performing during this period.
Further, in a November 29, 2010 report, he did not explain how or why appellant’s bilateral
lumbar radiculopathy at L5-S1 was causally related to the accepted injury. The Board has held
that a medical opinion not fortified by rationale is of diminished probative value.9 Dr. Filippone
did not provide a rationalized opinion to explain why appellant’s total disability for the claimed
period was due to her accepted condition. 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.10 Dr. Filippone’s prescriptions dated December 15 and 30, 2009 which
addressed appellant’s disability for work, predate the alleged recurrence of disability and are,
therefore, of diminished probative value as to the claimed period of disability. The Board finds
that his reports and prescriptions are insufficient to establish appellant’s claim.
Dr. Mauro’s reports found appellant had thoracic and lumbosacral neuritis and radiculitis
which were treated with an epidural injection. He also found she had low back pain with leftsided leg pain. The Board has consistently held that pain is a symptom, not a compensable
medical diagnosis.11 Moreover, Dr. Mauro did not provide an opinion addressing whether
appellant’s disability for work commencing January 5, 2010 or how any disability was causally

8

See Ann C. Leanza, 48 ECAB 115 (1996).

9

Cecilia M. Corley, 56 ECAB 662 (2005).

10

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).
11

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

6

related to the accepted lumbar condition.12 The Board finds that his reports are insufficient to
establish appellant’s claim.
Dr. Patel’s April 30, 2009 report found that appellant’s chronic low back pain with left
lower extremity radiculopathy and recently developed right lower extremity radiculopathy were
likely caused by the alleged September 29, 2005 work injury. The Board notes that OWCP has
not accepted that appellant sustained a work-related injury on September 29, 2005. OWCP
denied appellant’s claim for this injury on December 30, 2005. The only condition it has
accepted as employment related is lumbosacral strain. For conditions not accepted by OWCP as
being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.13
Dr. Patel provided no rationale explaining how appellant’s conditions were caused or related to
the established work duties.14 For the stated reasons, the Board finds that his report is
insufficient to establish appellant’s claim.
The reports from appellant’s physical therapists are of no probative medical value
because a physical therapist is not a physician as defined under FECA.15 The Board finds,
therefore, that these reports are insufficient to establish appellant’s claim.
Appellant has not met her burden of proof to establish that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the limited
light-duty requirements which would prohibit her from performing the limited light-duty position
she assumed after she returned to work.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a recurrence of
disability commencing January 5, 2010 causally related to her accepted injury.

12

Id.

13

Alice J. Tysinger, 51 ECAB 638 (2000).

14

Supra note 9.

15

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

7

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1425
Issued: February 16, 2018

Case Submitted on the Record

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

JURISDICTION
On June 16, 2017 appellant, through counsel, filed a timely appeal from a March 31,
2017 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 to consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
period June 7 to September 2, 2016 causally related to her accepted employment conditions.
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.

FACTUAL HISTORY
On February 19, 2016 appellant, then a 55-year-old vehicle maintenance clerk, filed an
occupational disease claim (Form CA-2), alleging that she developed right and left trigger
fingers as a result of performing repetitive data entry and writing in the performance of duty.
She stated that she first became aware of her condition on December 10, 2015 and realized that it
was causally related to factors of her federal employment on the same date. Appellant stopped
work on February 17, 2016.
OWCP received reports from Dr. David J. Bozentka, a Board-certified orthopedist,
beginning December 10, 2015, who noted referring appellant for therapy following right trigger
thumb release. Dr. Bozentka also diagnosed acquired trigger finger and right carpal tunnel
syndrome. On February 4, 2016 he treated appellant for bilateral finger complaints.
Dr. Bozentka diagnosed acquired trigger finger. On April 8, 2016 he diagnosed bilateral long
trigger fingers and bilateral trigger thumbs. Dr. Bozentka noted previously performing a left
trigger thumb release on February 17, 2014 and right trigger thumb and carpal tunnel release on
July 29, 2015. He opined that the bilateral trigger thumbs and bilateral long trigger fingers were
directly caused by repetitive activities required by appellant’s position as a senior clerk over the
past 14 years. Dr. Bozentka indicated that the trigger fingers and thumbs were related to
tendinitis which causes pain and locking with flexion-extension of the digits. He opined that the
repetitive activities required in appellant’s position led to the development of the nodule and
symptoms of pain, locking, and triggering. Dr. Bozentka indicated that she had been off work
due to the bilateral long trigger fingers since January 25, 2016, noting that the pain associated
with the digits led her to be unable to perform her activities required in her job. He advised that
appellant had reached maximum medical improvement with regard to nonoperative treatment.
Dr. Bozentka recommended surgical release of the trigger digits.
Appellant also provided treatment records for anxiety from Dr. Shormeh Yeboah, a
Board-certified family practitioner, dated January 25 to April 11, 2016. Dr. Yeboah reported
treating appellant since November 27, 2013 for work-related injuries and stress.
On May 17, 2016 OWCP accepted appellant’s claim for right and left trigger thumb and
right and left middle finger trigger finger. It informed her of the steps to take if she wished to
claim wage-loss compensation.
In an attending physician’s report (Form CA-20) dated June 16, 2016, Dr. Bozentka
noted appellant’s history was significant for overuse since October 2015 and diagnosed bilateral
thumb and middle finger trigger. He checked a box marked “yes” that her condition was caused
or diagnosed by an employment activity and advised that she was totally disabled from
February 4 to September 16, 2016. In a duty status report (Form CA-17) dated June 16, 2016,
Dr. Bozentka diagnosed trigger finger and noted that appellant could not resume work.
Appellant filed Form CA-7 claims for compensation, for leave without pay (LWOP) due
to total disability from work from June 7 to 24, 2016; June 25 to July 8, 2016; July 9 to 22, 2016;
and July 23 to August 5, 2016.

2

In an August 4, 2016 letter, OWCP requested that appellant submit additional medical
evidence to support her claim for compensation beginning June 7, 2016.
Appellant submitted additional treatment records from Dr. Bozentka. On February 4,
2016 Dr. Bozentka noted findings on examination of tenderness about the volar
metacarpophalangeal (MCP) region and bilateral long fingers and limitation in full flexion of the
thumb. He diagnosed bilateral trigger fingers and limitation of the right thumb flexion.
Dr. Bozentka performed an injection and indicated that appellant was disabled from work. On
March 18, 2016 he treated appellant for persistent triggering of the right thumb and bilateral long
fingers with locking with flexion. Dr. Bozentka noted findings on examination of palpable
nodules at the flexor tendon at the volar MCP region with catching of the right thumb and
bilateral long fingers. He diagnosed right trigger thumb and bilateral long trigger fingers.
Dr. Bozentka recommended surgery. He returned appellant to work subject to the restriction of
no repetitive activities. In July 14 and 28, 2016 reports, Dr. Bozentka who diagnosed bilateral
long trigger fingers. He noted triggering of the fingers with flexion, and tenderness about the
volar MCP joint of the bilateral long fingers. Dr. Bozentka recommended surgical release of the
bilateral long trigger fingers to relieve the pain, locking and triggering of the bilateral long
fingers. He opined that the development of the trigger fingers was related to the activities
appellant performed at work. Dr. Bozentka advised that she was partially disabled since
January 25, 2016 related to the bilateral trigger fingers.
In a July 25, 2016 narrative statement, appellant noted that her injuries were caused by
performing repetitive duties as a clerk for 15 years including repetitive handwriting and data
entry. Her left thumb condition began on July 19, 2013 and her right thumb and carpal tunnel
syndrome on October 10, 2014. Appellant returned to work in November 2015 and performed
repetitive handwriting and data entry for parts, bills for fuel, oil, and emissions. She noted not
working due to wrist, hand, and thumb symptoms. Appellant sought authorization for surgery.
She indicated that she did not have any other injuries and did not participated in any hobbies,
activities or another job since developing carpal tunnel and trigger thumbs.
Appellant was treated by Dr. Yeboah on July 29, 2016. Dr. Yeboah noted that
appellant’s hand injuries caused significant impairment and disability including an anxiety
disorder. She noted that the primary trigger for appellant’s anxiety was her hand injuries which
were caused and accelerated by the requirements of her job.
In a letter dated August 1, 2016, appellant, through counsel, indicated that she used sick
and annual leave after she stopped work and began using LWOP on June 7, 2016. Counsel
indicated that she was not claiming lost wages or leave buy back for any time prior to
February 4, 2016 when her orthopedist gave her cortisone injections and advised that she could
no longer work due to her bilateral hand conditions.
On August 10, 2016 appellant indicated that her annual and sick leave was exhausted
effective June 6, 2016 and she was claiming compensation beginning June 7, 2016. She sought
medical attention for anxiety from the physical pain she had in both hands, but was not seeking a
claim for compensation for anxiety. Appellant sought treatment for both hands. On August 8
and September 13, 2016, she filed claims for compensation (Form CA-7), for LWOP for total
disability for the period August 6 to 19, 2016.

3

Appellant submitted an operative report from Dr. Bozentka dated September 7, 2016 who
performed release of the bilateral long trigger finger and diagnosed bilateral long trigger fingers.3
In an attending physician’s report (Form CA-20) dated September 15, 2016, Dr. Bozentka
diagnosed bilateral long trigger fingers by checking a box marked “yes” that her condition was
aggravated by placing pressure on her bilateral palms and volar MCP joint. He that noted
appellant was disabled from work February 4 to October 19, 2016.
In a decision dated September 28, 2016, OWCP denied appellant’s claim for
compensation for total disability for the period June 7 to September 2, 2016. It advised that the
evidence of record failed to establish work-related disability during the period claimed.
On October 4, 2016 counsel requested an oral hearing before an OWCP hearing
representative which was held on January 19, 2017.
Appellant submitted additional records from Dr. Bozentka. In a different July 28, 2016
report, Dr. Bozentka treated her for right carpal tunnel syndrome. He noted reviewing the job
description provided by appellant for a position she performed from 2001 to the present time
which noted extensive repetitive activities required. Dr. Bozentka noted that she had left trigger
thumb release on February 17, 2014 and right trigger thumb and carpal tunnel release on
July 29, 2015. He diagnosed right carpal tunnel syndrome by electromyogram. Dr. Bozentka
opined that the right carpal tunnel syndrome was caused and accelerated by the employment
conditions described by appellant including extensive repetitive activities with her hands as a
senior clerk for 14 years. He advised that she was taken out of work on February 4, 2016 related
to persistent symptoms about her hands. Dr. Bozentka recommended limiting appellant’s
repetitive activities.
On August 23, 2016 Dr. Bozentka treated appellant for triggering of the bilateral long
fingers. He diagnosed trigger finger and recommended surgery. On October 25, 2016
Dr. Bozentka advised that appellant was totally disabled since February 4, 2016. He noted that
she had bilateral trigger finger release on September 7, 2016 which was due to a work injury.
Dr. Bozentka advised that appellant required therapy after surgery and would reach maximum
medical improvement three months after surgery. In an October 25, 2016 attending physician’s
report (Form CA-20), he diagnosed bilateral thumbs and middle finger trigger. Dr. Bozentka
noted by checking a box marked “yes” that appellant’s condition was caused or aggravated by an
employment activity and advised that she was totally disabled from February 4 to
December 6, 2016. In an October 25, 2016 duty status report (Form CA-17), he diagnosed
trigger finger and noted that she could not work.
On November 7, 2016 the employing establishment forwarded to OWCP a notice of
recurrence (Form CA-2a), of disability alleging that appellant had a recurrence of disability on
September 7, 2016 causally related to her accepted employment conditions. Appellant stopped
work on September 7, 2016 to undergo bilateral hand surgery.
In a November 8, 2016 report, Dr. Bozentka noted that appellant was status post-release
of the bilateral long trigger fingers on September 7, 2016. He reported treating her on
3

On November 17, 2016 OWCP authorized the September 7, 2016 surgery.

4

October 25, 2016 and noted discomfort about the scars and difficulty fully extending the right
long finger. Dr. Bozentka recommended bilateral hand therapy and advised that appellant was
unable to work due to scar discomfort, lack of extension, and strength. In a December 6, 2016
attending physician’s report (Form CA-20), he noted a history of injury of overuse since
October 2015. Dr. Bozentka diagnosed bilateral thumbs and middle finger trigger and indicated
that appellant’s condition was caused or aggravated by work activity. He noted that she was
totally disabled beginning February 4, 2016. Appellant also submitted physical therapy records.
On January 12, 2017 OWCP accepted appellant’s claim for recurrence of disability. It
noted that disability beginning September 7, 2017 was payable once it received appropriate pay
rate information from the employing establishment.
In a January 17, 2017 report, Dr. Bozentka treated appellant for pain and swelling in her
hands. He noted an essentially normal examination and returned her to work with restrictions of
no repetitive activities. In a letter dated January 17, 2017, Dr. Bozentka noted that it was his
medical opinion and definitive diagnosis that the bilateral trigger thumbs and bilateral trigger
fingers were directly caused by repetitive activities appellant was required to perform over the
past 14 years. He advised that the bilateral trigger thumbs and bilateral trigger fingers left her
totally disabled from June 7 to September 2, 2016. In an attending physician’s report (Form
CA-20) dated January 17, 2017, Dr. Bozentka noted that appellant’s history was significant for
overuse since October 2015. He diagnosed bilateral thumbs and middle finger trigger and
indicated that her condition was caused or aggravated by work activity. Dr. Bozentka noted that
appellant was totally disabled from February 4, 2016 to January 17, 2017. In a work capacity
evaluation (OWCP-5c) dated January 17, 2017, he noted that she could return to her usual job for
eight hours a day with restrictions. Dr. Bozentka advised that appellant had reached maximum
medical improvement and could work in a sedentary position.
By decision dated March 31, 2017, an OWCP hearing representative affirmed the
decision dated September 28, 2016.
LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general, the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability from
work.6

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
6

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

5

For each period of disability claimed, the employee has the burden of proving that he or
she was disabled from work as a result of the accepted employment injury.7 Whether a particular
injury caused an employee to be disabled from employment and the duration of that disability are
medical issues which must be proved by the preponderance of the reliable, probative, and
substantial medical evidence.8
ANALYSIS
OWCP accepted appellant’s claim for right and left trigger thumb and right and left
middle finger trigger finger. Appellant filed claims for compensation for LWOP for total
disability for the period June 7 to September 2, 2016. The Board finds that the medical evidence
of record is insufficient to establish total disability during the claimed period causally related to
her accepted employment condition.
Appellant submitted multiple reports from Dr. Bozentka. In July 14 and 28, 2016 reports,
Dr. Bozentka diagnosed bilateral long trigger fingers, opined that this condition was related to
work activities, and advised that she was partially disabled since January 25, 2016.9 On
January 17, 2017 he opined that appellant’s bilateral trigger thumbs and bilateral trigger fingers
were employment related and left appellant totally disabled from June 7 to September 2, 2016.
Although Dr. Bozentka supported causal relationship, he did not provide medical rationale
explaining the basis of his conclusory opinion regarding the causal relationship between the
accepted conditions and the claimed period of disability.10 He did not explain how the accepted
conditions would have caused appellant to be disabled from work during the claimed period.
This report is, therefore, insufficient to establish appellant’s claim.
Similarly, in reports dated October 25 and November 8, 2016, Dr. Bozentka noted
appellant’s treatment and advised that she was totally disabled since February 4, 2016.
Appellant also provided several attending physician’s reports from June 16 to January 17, 2017
which supported that she had an employment-related condition and that she was disabled. While
Dr. Bozentka indicated in these that she was totally disabled from work he did not specifically
explain how any accepted condition caused or contributed to the period of disability beginning
June 7, 2016. Part of appellant’s burden of proof includes submitting rationalized medical

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

In a different July 28, 2016 report, Dr. Bozentka attributed appellant’s diagnosed right carpal tunnel syndrome
and associated disability to appellant’s employment. The Board notes that OWCP has not accepted carpal tunnel
syndrome as employment related. See T.M., Docket No. 08-0975 (issued February 6, 2009) (where a claimant
claims that a condition not accepted or approved by OWCP was due to an employment injury, the claimant bears the
burden of proof to establish that the condition is causally related to the employment injury through the submission of
rationalized medical evidence).
10
See T.M., id., (a medical report is of limited probative value on the issue of causal relationship if it contains a
conclusion regarding causal relationship which is unsupported by medical rationale).

6

evidence which supports a causal relationship between the period of disability and the accepted
injury.11 Therefore, these reports are insufficient to meet her burden of proof.
On April 8, 2016 Dr. Bozentka diagnosed bilateral long trigger fingers and bilateral
trigger thumbs, noted appellant’s treatment, and supported that her diagnosed conditions were
employment related. He indicated that she had been out of work due to the bilateral long trigger
fingers since January 25, 2016 noting that the pain associated with the digits led her to be unable
to perform her activities. However, this report predates the period of wage loss at issue.
Dr. Bozentka did not otherwise explain the reasons why appellant’s wage loss beginning June 7,
2016 was attributable to her accepted employment conditions.12 Similarly, other reports from
him are of limited probative value as they either predate the period of claimed disability or they
do not specifically attribute the period of claimed disability to the accepted conditions.13
Appellant was also treated by Dr. Yeboah, who provided evidence including a July 29,
2016 report noting that appellant’s hand injuries caused significant impairment and disability
including triggering an anxiety disorder. Dr. Yeboah noted that the primary trigger for
appellant’s anxiety was her hand injuries which were caused and accelerated by the requirements
of her job. This report is insufficient to meet appellant’s burden of proof as Dr. Yeboah
attributed appellant’s disability in part due to anxiety disorder. However, OWCP has not
accepted that appellant developed an anxiety disorder as a result of her clerk duties14 and
Dr. Yeboah has not otherwise explained how the accepted hand conditions caused the claimed
disability.
The record also contains physical therapy reports. However, the Board has held that
treatment notes signed by physical therapists15 have no probative value as these providers are not
considered physicians under FECA16 and are not competent to render a medical opinion under
FECA.
On appeal appellant asserts that she submitted sufficient medical evidence supporting
disability for the period claimed. The Board finds that she failed to submit rationalized medical
11
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).
12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
13

See M.C., Docket No. 15-1762 (issued August 26, 2016) (medical reports are of limited probative value where
they either predate the claimed period of disability or do not specifically address whether the claimed disability is
causally related to the accepted condition).
14

Alice J. Tysinger, 51 ECAB 638 (2000).

15
V.W., Docket No. 16-1444 (issued March 14, 2017) (where the Board found that physical therapy reports do
not constitute competent medical evidence because a physical therapist is not a “physician” as defined under FECA).
16

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).

7

evidence establishing a causal relationship between the specific period of claimed disability and
the accepted conditions.
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 failed to establish total disability for the period June 7
to September 2, 2016 causally related to the accepted employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 16, 2018
Washington, DC

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

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

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

8