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

)
)
)
)
)
)
)
)

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

Docket No. 08-976
Issued: September 9, 2008

Case Submitted on the Record

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

JURISDICTION
On February 12, 2008 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ merit decisions dated August 7, 2007 and January 16, 2008. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability as of September 22,
2006 causally related to her accepted cervical condition.
FACTUAL HISTORY
On October 27, 2004 appellant, a 48-year-old mail handler, was struck in the head by a
stack of mail. She filed a claim for benefits on November 2, 2004, which the Office accepted for
neck sprain, head concussion and postconcussive syndrome. The Office paid compensation for
temporary total disability. Appellant accepted a modified job offer on November 5, 2004.

On May 20, 2007 appellant filed a Form CA-2a claim for benefits, alleging that she
sustained a recurrence of disability on September 22, 2006 which was causally related to her
accepted cervical condition.
By letter dated May 24, 2007, the Office advised appellant that it required additional
factual and medical evidence to determine whether she was eligible for compensation benefits
based on a recurrence of disability. It asked appellant to submit a comprehensive medical report
from her treating physician describing her symptoms and the medical reasons for her condition,
and an opinion as to whether her claimed condition as of September 22, 2006 was causally
related to her October 27, 2004 employment injury. The Office stated that appellant had 30 days
to submit the requested evidence.
Appellant submitted a September 22, 2006 return to work certificate from Dr. Karla
Hemphill-Harris, an osteopath, who stated:
“[Appellant] should not lift more than 10 pounds at work. No bending, turning or
extension of the neck, effective September 22 until October 31, 2006.”
By decision dated August 7, 2007, the Office denied the recurrence of disability claim. It
found that appellant failed to submit medical evidence sufficient to establish that the claimed
condition or disability as of September 22, 2006 was caused or aggravated by the accepted
condition.
By letter dated August 10, 2007, appellant’s attorney requested an oral hearing, which
was held on November 14, 2007. Appellant submitted a report of a magnetic resonance imaging
[MRI] scan dated June 4, 2005 and reports dated September 21 and December 21, 2006 and
June 22, 2007 from Dr. Joseph Vanden Bosch, a specialist in anesthesiology. In his
September 21, 2006 report, Dr. Vanden Bosch stated that x-rays of appellant’s cervical spine in
2004 did reveal some reversal of the normal cervical lordosis curvature, indicating muscular
spasm. He then explained that to determine whether there was some degree of underlying
mechanical irritation contributing to her neck pain left-sided cervical facet injections from C3-4
through C5-6 were given, following which appellant had sustained improvement of greater than
50 percent for close to one month. However, Dr. Vanden Bosch also noted that recently
appellant had started having some resurgence of her pain but overall it did continue to be
noticeably improved. Appellant rated her neck pain a 4 out of 10 on a pain scale, but with the
benefit of the treatment she was better able to perform her job duties at the employing
establishment as a mail handler with less discomfort.
On December 21, 2006 Dr. Vanden Bosch stated that appellant had reported some
noticeable improvement of about 40 percent in her left-sided neck pain for four weeks following
repeat left-sided intra-articular cervical facet injections this past September. He also noted:
“Unfortunately, [appellant] did not seem to have more noticeable sustained relief
compared to her previous facet treatment, which also did seem to provide about
this amount of relief. She states that she has been working long 12-hour
workdays almost seven days a week at [the employing establishment]. Since
[appellant] did not seem to have more sustained relief following the repeat facet

2

treatment, I informed her that I would prefer to try more conservative care at this
time involving a course of physical therapy her at the clinic. This would include
manual therapy to help reduce soft tissue irritation in the cervical spine and
improve her cervical range of motion with some joint mobilization.
“On examination there continues to be some tenderness with palpation over the
left-sided cervical paravertebral muscles overlying the facets with some spasm.
Cervical extension and left lateral rotation are mildly restricted. Appellant
continues to have problems with left-sided cervicalgia with referred symptoms
secondary to an element of cervical spondylosis along with a significant
myofascial component.”
In his June 22, 2007 report, Dr. Vanden Bosch related that appellant considered the
physical therapy beneficial. He advised that over the post few months she was starting to have a
noticeable resurgence of her left-sided neck pain. Dr. Vanden Bosch noted tenderness and spasm
on examination over the left-sided cervical paravertebral muscles overlying the facets from C4-5
through C6-7; cervical extension and lateral rotation were restricted. He related that appellant
complained of a reemergence of her left-sided cervicalgia, with referred symptoms secondary to
an element of underlying mechanical irritation of the cervical facet joints from spondylosis,
along with a myofascial component. Dr. Vanden Bosch gave appellant cervical facet injections,
after which he noted degenerative changes.
By decision dated January 16, 2008, an Office hearing representative affirmed the July 22,
2004 Office decision.
LEGAL PRECEDENT
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury, and who supports that conclusion with sound medical
reasoning.1 A recurrence of disability is defined as the inability to work caused by a spontaneous
change in a medical condition which results from a previous injury or illness without an
intervening injury or new exposure in the work environment that caused the illness.2
ANALYSIS
Appellant has failed to submit any medical opinion containing a rationalized, probative
report which relates her condition or disability as of September 22, 2006 to her accepted cervical
condition. For this reason, she has not discharged her burden of proof to establish her claim that
she sustained a recurrence of disability as a result of her accepted employment condition.
Appellant has failed to submit evidence to show that she sustained a worsening of her cervical
1

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

2

See 20 C.F.R. § 10.5(x); Donald T. Pippin, 54 ECAB 631 (2003).

3

condition or was totally disabled from all work after September 22, 2006. As she did not submit
medical evidence sufficient to establish that she sustained a recurrence of her work-related
cervical condition, the Office properly denied compensation in its August 7, 2007 decision.
Appellant submitted Dr. Hemphill-Harris’ September 22, 2006 report, which outlined
work restrictions for appellant effective September 22 through October 31, 2006. The weight of
the medical opinion is determined by the opportunity for and thoroughness of examination, the
accuracy and completeness of 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.3 Dr. Hemphill-Harris’ report did not provide a history of injury or a diagnosis of
appellant’s current condition. The report outlined work restrictions for a neck condition and
indicated generally that appellant complained of disabling pain as of September 22, 2006, but did
not contain a probative, rationalized medical opinion sufficient to establish that appellant’s
disability as of September 22, 2006 was causally related to her accepted cervical condition.
Dr. Hemphill-Harris’ opinion, therefore, is of limited probative value as it does not
contain any medical rationale explaining how or why appellant’s accepted condition is causally
related to her alleged recurrence of disability.4 Appellant thus failed to submit evidence to show
she sustained a worsening of her cervical condition or was totally disabled from all work after
September 22, 2006. As she did not submit medical evidence sufficient to establish that she
sustained a recurrence of her work-related cervical condition, the Office properly denied
compensation for a recurrence of disability in its August 7, 2007 decision.5
Following the August 7, 2007 decision, appellant submitted Dr. Vanden Bosch’s
September 21 and December 21, 2006 and June 22, 2007 reports. Dr. Vanden Bosch related
complaints of cervical pain and noted tenderness on examination with palpation over the leftsided cervical paravertebral muscles overlying the facets from C4-5 through C6-7, in addition to
some spasm. He advised that cervical extension and left lateral rotation were mildly restricted
and noted that appellant continued to experience left-sided cervicalgia and cervical spondylosis,
with a significant myofascial component. Dr. Vanden Bosch prescribed a course of physical
therapy which temporarily improved her condition, but noted a regression of her condition in his
June 22, 2007 report. These reports, however, did not address the causal connection, if any,
between appellant’s employment-related cervical strain and her alleged recurrence of disability.
Causal relationship must be established by rationalized medical opinion evidence. Dr. Vanden
Bosch’s reports failed to provide an explanation of how appellant’s cervical strain would cause
or contribute to her disability as of September 22, 2006. While his reports provided a diagnosis
of appellant’s current condition and note that she complained of disabling cervical pain as of
September 22, 2006, they did not provide a discussion of how appellant’s accepted condition
would cause or contribute to the noted degenerative changes of the cervical spine or establish
that appellant’s disability as of September 22, 2006 was causally related to her accepted cervical
strain condition. The Board finds that appellant failed to submit rationalized medical evidence
3

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

4

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

5

Id.

4

sufficient to establish that her current condition was causally related to her October 27, 2004
employment injury.
Appellant has not submitted sufficient medical evidence supporting her claim that she
sustained a recurrence of her employment-related disability as of September 22, 2006. The
Office hearing representative properly found that appellant was not entitled to compensation
based on a recurrence of her disability. The Board will affirm the January 16, 2008 Office
decision.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she was entitled to
compensation for a recurrence of disability as of September 22, 2006 causally related to her
accepted cervical strain condition.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2008 and August 7, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CAYEY POST
OFFICE, Cayey, PR, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq.
Office of the Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1337
Issued: March 18, 2022

Case Submitted on the Record

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

On September 6, 2021 counsel filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP). The Office of the Clerk of the Appellate Boards assigned
Docket No. 21-1337 to this appeal. 1
The Board has duly considered the matter and recognizes that the current appeal was not
filed by appellant or his authorized representative. Section 501.3(a) of the Board’s Rules of
Procedure provides that a “person adversely affected by a final decision of the Director [of OWCP]
or his or her authorized Representative, may file an appeal of such decision by the Board .”2 The
Board concludes that neither a “person adversely affected” by a final OWCP decision, nor an
“authorized Representative,” has filed an appeal to the Board. As such, there is no valid appeal
before the Board and Docket No. 21-1337 must be dismissed.3 Accordingly,

1

By letter dated October 8, 2021 counsel advised the Board that he did not represent appellant and had inadvertently
filed the current appeal.
2

20 C.F.R. § 501.3(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1337 is dismissed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


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

)
)
)
)
)
)
)
)

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

Docket No. 11-790
Issued: October 19, 2011

Case Submitted on the Record

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

JURISDICTION
On February 2, 2011 appellant filed a timely appeal from a December 23, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his
occupational disease claim and a January 27, 2011 decision denying his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained neck and bilateral shoulder conditions in the performance of duty; and (2) whether
OWCP properly denied appellant’s January 7, 2011 request for reconsideration pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 2010 appellant, then a 57-year-old mail handler, filed a traumatic injury
claim alleging that on October 19, 2010 he sustained neck and bilateral shoulder conditions as a
result of “repetitive prepping mail.”2 The employing establishment noted that he did not
describe a traumatic injury and stated that the alleged injury did not occur in the performance of
duty.
In a supplemental statement, appellant explained that on October 4, 2010 he started a new
position as a modified mail handler and two days later, he felt pain in both his shoulders and
neck. When the pain worsened and no longer improved with medication, he sought medical
treatment on October 22, 2010 and was excused from work for five days. On October 29, 2010
appellant returned to work, but after two hours he experienced severe pain and went to the
emergency room. He was excused from work for another five days. Appellant described his
neck and shoulder pain as excruciating at times, which interrupted his sleep, work and daily
activities. On November 4, 2010 he returned to his physician who advised him to not return to
work until his pain subsided.
In an October 1, 2010 note, a physician with an illegible signature stated that appellant
was seen in the emergency room that day and excused him from work until October 4, 2010.
In an October 22, 2010 duty status report, an unknown provider noted that appellant
worked as a mail processing clerk, which involved standing, using both hands, bending or
pivoting and light lifting. Appellant was also diagnosed with neck and shoulder strain.
On October 28, 2010 Dr. Ronald Borlaza, a Board-certified internist, examined appellant
and excused him from work that day. In a handwritten addendum, a nurse practitioner indicated
that appellant was excused from work for shoulder and neck pain.
In an October 30, 2010 note, Dr. Borlaza examined appellant in the emergency room for
complaints of shoulder and neck pain and excused him from work until November 3, 2010.
In a November 4, 2010 note, Dr. Borlaza confirmed that appellant was one of his patients
and excused him from work due to upper back, neck and bilateral shoulder pain.
In a November 9, 2010 letter, the employing establishment controverted appellant’s claim
alleging that the medical evidence on record failed to provide a firm, medical diagnosis for his
alleged condition. It noted that the medical reports only stated that he experienced pain, which is
not a compensable diagnosis. The employing establishment also pointed out that appellant
alleged his conditions resulted from “repetitive prepping mail,” which does not describe a
traumatic injury.3
2

Appellant initially filed his claim as a recurrence claim, but subsequently refiled his claim as a traumatic injury
claim.
3

The employing establishment further noted that appellant filed additional claims for the same condition under
File No. xxxxxx868 and File No. xxxxxx137.

2

In a September 28, 2010 modified-duty assignment, appellant accepted a modified
position as a mail clerk, which included prepping mail flats, standing, using both hands, bending
or pivoting and light lifting for eight hours.
On November 19, 2010 OWCP advised appellant that the evidence submitted was
insufficient to support his claim and requested additional information, specifically a firm medical
diagnosis of his alleged conditions. It requested a medical report from his treating physician
which included dates of examination and treatment, description of symptoms, results of
examinations and tests, a firm medical diagnosis, description of medical history, and a
physician’s opinion, based on medical rationale, on the cause of appellant’s condition.
In appellant’s November 25, 2010 response to OWCP’s development letter, he stated that
he underwent left shoulder surgery in 2005 and right shoulder surgery in 2007.
In a November 9, 2010 workplace impairment report, an occupational therapist stated that
she examined appellant on November 19, 2010 for his bilateral shoulder pain. Appellant
complained of soreness and fatigue in both shoulders, which affected his overhead activities.
The therapist noted that appellant sustained previous injuries in 2005 and 2007 and had worked
for the postal service for 12 years. Appellant stated that over the past few years he worked off
and on due to his shoulder problems and surgeries. Upon examination, the therapist observed
active range of motion in his upper extremities within normal limit and a grip strength of 80
pounds bilaterally. She concluded that appellant had the ability to perform within the medium
work category as defined by the U.S. Department of Labor’s Dictionary of Occupational Titles.
The therapist also stated that appellant was able to function at a level that would meet or exceed
the full-duty work requirements of his previous position.
In a November 24, 2010 report, Dr. Borlaza confirmed that appellant was his patient and
noted that he underwent surgery to repair bilateral rotator cuff tears in 2005 and right shoulder
surgery in 2008, but continued to complain of chronic bilateral shoulder pain. He explained that
prepping mail aggravated appellant’s shoulder pain, but casing mail did not.
In a December 7, 2010 letter, the employing establishment responded to Dr. Borlaza’s
November 24, 2010 report and questioned how Dr. Borlaza was able to conclude that prepping
mail aggravated appellant’s shoulder pain but casing mail did not. It contended that
Dr. Borlaza’s medical opinion was merely speculative because it was based solely on
information received from appellant.
In a decision dated December 23, 2010, OWCP denied appellant’s claim finding that the
evidence failed to contain a firm diagnosis of a condition that resulted from his employment. It
pointed out that the evidence of record only indicated that he suffered from “pain,” which is not a
compensable diagnosis.
On January 7, 2011 appellant submitted a request for reconsideration. He stated that he
would be submitting treatment records, a description of Dr. Borlaza’s and an orthopedic doctor’s
findings, a magnetic resonance imaging (MRI) scan report, treatment reports, and Dr. Borlaza’s
opinion on the cause of his condition. No additional evidence was received.

3

By decision dated January 27, 2011, OWCP denied appellant’s request for
reconsideration because he did not submit any new evidence to support his claim and did not
proffer any legal arguments not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative, and substantial evidence4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.5 In an occupational disease claim, appellant’s burden requires submission of 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 employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether a causal relationship exists between the employee’s diagnosed condition and the
specified employment factors or incident.8 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.9 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.10

4

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

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000); D.U., Docket No. 10-144, issued
July 27, 2010).
7

D.I., 59 ECAB 158 (2007); I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658
(issued October 22, 2009).
8

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

9

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

10

Patricia J. Bolleter, 40 ECAB 373 (1988).

4

ANALYSIS -- ISSUE 1
On November 5, 2010 appellant filed a traumatic injury claim alleging that on
October 19, 2010 he sustained injuries to his neck and both shoulders in the performance of duty.
He indicated that his condition was a traumatic injury by filing a Form CA-1, but he attributed
his condition to “repetitive prepping mail.” The Board will treat this claim as an occupational
disease claim because appellant attributed his condition over a period longer than a single
workday or shift.11
The Board finds that the medical evidence is insufficient to establish that appellant
sustained neck and bilateral shoulder conditions as a result of his employment activities. The
record reflects that appellant had preexisting bilateral shoulder conditions for which he had
undergone surgery. OWCP accepted that appellant’s duties as a modified mail handler included
repetitively prepping mail flats, standing, using both hands, bending or pivoting and light lifting.
The Board finds, however, that the medical evidence of record failed to provide a diagnosed
condition that resulted from the accepted activities.
Appellant submitted various medical reports from Dr. Borlaza. These reports are
insufficient to support his claim as none of them provided a specific diagnosis of appellant’s
condition. Dr. Borlaza merely noted appellant’s complaints of neck, upper back, and bilateral
shoulder pain and excused him from work. The Board has held that pain is generally a symptom,
not a compensable medical diagnosis.12 Thus, Dr. Borlaza did not provide a diagnosed condition
sufficient to meet appellant’s burden of proof. These reports also lack probative value because
they do not offer an explanation of how appellant’s employment duties caused or contributed to
his alleged conditions.13 Dr. Borlaza only stated that “prepping mail aggravated appellant’s
shoulder pain, but casing mail did not.” He did not provide any medical rationale explaining
how prepping mail resulted in appellant’s neck and shoulder pain or provide examination
findings to support his opinion. Medical evidence 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.14 Thus, Dr. Borlaza’s report fails to establish causal relationship.
The additional medical evidence is also insufficient to establish appellant’s claim. The
signatures in the October 1, 2010 medical note and October 22, 2010 duty status report are
illegible. As a medical report is not considered probative if there is no indication that the person

11

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to the time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee). An occupational disease or illness is defined as a condition produced by the
work environment over a period longer than a single workday or shift. Id. at § 10.5(q).
12

Robert Broome, 55 ECAB 339, 342 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

13

Elizabeth H. Kramm, 57 ECAB 117, 124 (2005); Michael E. Smith, 50 ECAB 313 (1999).

14

Albert C. Brown, 52 ECAB 152 (2000); S.E., Docket No. 08-2214 (issued May 6, 2009).

5

completing the report is a physician as defined under section 8101(2) of FECA, these reports
likewise fail to establish appellant’s claim.15
In addition, the November 9, 2010 workplace capacity evaluation report fails to establish
appellant’s claim because occupational therapists are not considered “physicians” under FECA.16
Thus, this report lacks probative value.
On appeal, appellant stated that OWCP did not review all the relevant medical evidence
because he mistakenly omitted the case number from the new evidence that was mailed to
OWCP. As previously noted, however, the claimant has the burden to prove the essential
elements of his claim, including whether his specific employment factors caused any diagnosed
condition.17 Accordingly, despite appellant’s alleged mistake, the Board finds that appellant did
not meet his burden of proof to establish that he sustained neck and bilateral shoulder conditions
as a result of his employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.18 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to OWCP.19
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.20

15

R.M., 59 ECAB 690 (2008); E.K., Docket No. 09-1827 (issued April 21, 2010).

16

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005); S.E., Docket No. 08-2214 (issued May 6, 2009).

17

E.A., 58 ECAB 677 (2007); Ernest St. Pierre, 51 ECAB 623 (2000); Elaine Pendleton, supra note 5.

18

5 U.S.C. § 8128(a); W.C., 59 ECAB 372 (2008); see also D.L., Docket No. 09-1549 (issued
February 23, 2010).
19

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
20

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

6

A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.21 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.22 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.23
ANALYSIS -- ISSUE 2
OWCP issued a decision on December 23, 2010 denying appellant’s occupational disease
claim. On January 7, 2011 appellant requested reconsideration of the December 23, 2010
decision.
The issue on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his
January 7, 2011 application for reconsideration, appellant, did not allege that OWCP erroneously
applied or interpreted a specific point of law. He also failed to advance a relevant legal
argument. Appellant only alleged that he would be submitting additional medical evidence, but
no evidence was received. The Board finds, therefore, that appellant did not meet any of the
requirements of 20 C.F.R. § 10.606(b)(2). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.
CONCLUSION
The Board finds that appellant did not establish that he suffered neck and bilateral
shoulder conditions causally related to factors of his employment.24 The Board also finds that
OWCP properly denied his request for reconsideration pursuant to 5 U.S.C. § 8128(a).

21

20 C.F.R. § 10.607(a).

22

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

23

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

24

The Board notes that appellant submitted additional evidence following the January 27, 2011 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

7

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2011 and December 23, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Winter Springs, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2316
Issued: May 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 22, 2008 appellant filed a timely appeal from a July 2, 2008 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration and an
August 27, 2007 decision denying her claim for an additional schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule
award decision.
ISSUES
The issues are: (1) whether appellant has more than two percent permanent impairment
of the right lower extremity for which she received a schedule award; and (2) whether the Office
properly denied appellant’s request for reconsideration pursuant to section 8178(a).

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated April 16, 2007, the Board
remanded the case for further development of the medical evidence. The facts of the previous
Board decision are incorporated herein by reference.
On May 8, 2004 appellant, then a 58-year-old mail handler, sustained a right knee sprain
and strain when she tripped on a piece of metal and twisted her knee. In a June 7, 2004 report
and June 8, 2004 addendum, Dr. Joseph B. Billings, an attending Board-certified orthopedic
surgeon, indicated that appellant had preexisting mild right knee degenerative arthritis.
However, appellant had not experienced any trauma to the knee prior to the May 8, 2004
accident at work. A May 27, 2004 magnetic resonance imaging (MRI) scan revealed a right
meniscal tear. Findings included patellofemoral articular cartilage that appeared somewhat
thinned and irregular consistent with chondromalacia patella. On July 30, 2004 appellant
underwent arthroscopic surgery and a partial medial meniscectomy of the right knee performed
by Dr. Billings. On October 20, 2004 Dr. Billings stated that x-rays revealed moderate
degenerative arthritis of the medial compartment of the right knee. He opined that she had not
reached maximum medical improvement following her surgery due, in part, to an exacerbation
of her preexisting right knee arthritis. On December 1, 2004 Dr. Billings stated that appellant
had reached maximum medical improvement. He calculated three percent impairment based on
her meniscectomy. In a May 9, 2005 report, Dr. Billings calculated 32 percent right knee
impairment, including 25 percent impairment for Grade 1 weakness and 7 percent for mild
arthritis in her knee, based on the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).2 He calculated three percent
impairment under the 1996 Florida Uniform Permanent Impairment Rating Schedule. On
May 20, 2005 appellant filed a claim for a schedule award. In a July 7, 2005 report,
Dr. James W. Dyer, a Board-certified orthopedic surgeon and an Office medical adviser, stated
that appellant had two percent impairment of her right knee for the partial medial meniscectomy
performed on July 30, 2004, based on Table 17-33 at page 546 of the A.M.A., Guides, fifth
edition (diagnosis-based estimates). He stated that Dr. Billings calculated 32 percent impairment
based on a state impairment guide which is not used to determine impairment under the Federal
Employees’ Compensation Act.3 By decision dated November 29, 2005, the Office granted
appellant a schedule award based on two percent impairment of the right lower extremity for
5.76 weeks, from May 9 to June 18, 2005.

1

Docket No. 07-199 (issued April 16, 2007).

2

It appears that Dr. Billings based the 25 percent impairment due to Grade 1 muscle weakness of appellant’s right
knee on Tables 17-7 and 17-8 at pages 531 and 532 of the fifth edition of the A.M.A., Guides. It appears that he
based the seven percent impairment for mild arthritis based on Table 17-31 at page 544. However, Dr. Billings did
not provide cartilage level measurement as shown by x-ray which is required for the use of Table 17-31.
3

The Board notes that Dr. Dyer misstated the source of the impairment guidelines used by Dr. Billings in his
May 9, 2005 impairment calculation. Dr. Billings calculated 32 percent impairment of appellant’s right knee,
including 25 percent for Grade 1 weakness and 7 percent for mild arthritis, based on the fifth edition of the A.M.A.,
Guides. He calculated three percent impairment under the state impairment guidelines.

2

Following the Board’s April 16, 2007 decision, the Office referred appellant for a second
opinion evaluation. In a June 22, 2007 report, Dr. David B. Lotman, a Board-certified
orthopedic surgeon, reviewed the medical history and provided findings on physical
examination. He stated that appellant moved without antalgia and was not using a brace or
assistive device. There was no right knee effusion. There was some patellofemoral crepitation
on passive range of motion and on patellofemoral manipulation. There was tenderness from the
medial joint line down to the medial tibial plateau. There was also tenderness on palpation of the
lateral femoral condyle. Passive range of motion was from 0 degrees of extension to 160 degrees
of flexion. There was very slight nonreproducible medial compartment crepitation. The knee
was stable to varus and valgus and anterior and posterior stress. There was no rotary instability.
There was a varus deformity of approximately 15 degrees which antedated the accepted right
knee sprain. Dr. Lotman found no impairment due to sensory or motor deficits. He calculated
two percent right lower extremity impairment for appellant’s partial medial meniscectomy based
on Table 17-33 at page 546 of the A.M.A., Guides. Dr. Lotman stated, “I believe that this is a
more efficient way to rate her knee than to consider range of motion, weakness, etc.” The Office
asked Dr. Lotman to provide a measurement of appellant’s right knee cartilage level shown on
x-ray. Dr. Lotman responded that he based his impairment rating on the diagnosis-based
estimates section of the A.M.A., Guides which did not require measurement of cartilage
thickness. For that reason, no x-rays were taken. Dr. Lotman indicated that he would provide a
right knee cartilage measurement if the Office felt it was necessary and would “see if it alters my
rating at all.”
On August 9, 2007 Dr. Dyer stated that appellant had two percent impairment of the right
lower extremity based on the report from Dr. Lotman and the A.M.A., Guides.4 He opined that
there was no need for measurement of appellant’s right knee cartilage level by x-ray because
arthritis of the right knee was not an accepted condition.
By decision dated August 27, 2007, the Office denied appellant’s claim for an additional
schedule award.
Appellant requested reconsideration and submitted clinical notes dated April 28, 2008
from a physician assistant.5 By decision dated July 2, 2008, the Office denied appellant’s request

4

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (October 2005) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
5

A physician assistant does not qualify as a physician under the Act. See 5 U.S.C. § 8101(2) which provides:
“‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by state law”; see also Roy L. Humphrey, 57
ECAB 238 (2005); Jennifer L. Sharp, 48 ECAB 209 (1996). Physician assistants, registered nurses, licensed
practical nurses and physical therapists are not physicians as defined under the Act and their opinions are of no
probative value.

3

for reconsideration on the grounds that the evidence was insufficient to warrant further merit
review.6
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act7 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.8
The A.M.A., Guides provides for three separate methods for calculating the lower
extremity permanent impairment of an individual: anatomic, functional and diagnosis based.9
The anatomic method involves noting changes, including muscle atrophy, nerve impairment and
vascular derangement, as found during physical examination.10 The diagnosis-based method
may be used to evaluate impairments caused by specific fractures and deformities, as well as
ligamentous instability, bursitis and various surgical procedures, including joint replacements
and meniscectomies.11 The functional method is used for conditions when anatomic changes are
difficult to categorize, or when functional implications have been documented, and includes
range of motion, gait derangement and muscle strength.12 The evaluating physician must
determine which method best describes the impairment of a specific individual based on patient
history and physical examination.13 When uncertain about which method to use, the evaluator
should calculate the impairment using different alternatives and choose the method or
combination of methods that gives the most clinically accurate impairment rating.14 If more than
one method can be used, the method that provides the higher impairment rating should be
adopted.15

6

Subsequent to the July 2, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed.
2001).
9

A.M.A., Guides 525.

10

Id.

11

Id.

12

Id. at 525, Table 17-1.

13

Id. at 548, 555.

14

Id. at 526.

15

Id. at 527, 555.

4

Section 8123(a) of the Act provides that “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”16 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision due to a conflict between
Dr. Billings and Dr. Lotman as to the degree of appellant’s right knee impairment.
Dr. Lotman found no impairment of appellant’s right knee due to loss of range of motion
or sensory or motor deficit. He calculated two percent right lower extremity impairment for her
partial medial meniscectomy based on Table 17-33 at page 546 of the A.M.A., Guides.
Dr. Lotman stated, “I believe that this is a more efficient way to rate her knee than to consider
range of motion, weakness, etc.” However, he did not provide sufficient rationale for his choice
of impairment rating method. As noted, if more than one rating method can be used, the method
that provides the higher impairment rating should be adopted. Dr. Lotman did not consider
whether appellant had impairment due to muscle weakness. As noted, Dr. Billings included
muscle weakness in his impairment rating.
Regarding impairment due to arthritis, Dr. Billings indicated in June 2004 that appellant
had preexisting mild right knee degenerative arthritis. However, appellant had not experienced
any trauma to the knee prior to the May 8, 2004 accident at work when she twisted and fell on
her knee. On October 20, 2004 Dr. Billings opined that appellant had not reached maximum
medical improvement following her July 30, 2004 right knee surgery due, in part, to an
exacerbation of her preexisting right knee arthritis. In a May 9, 2005 report, Dr. Billings
calculated 32 percent right knee impairment, including 25 percent impairment for Grade 1
muscle weakness and 7 percent for mild arthritis in her knee, based on the fifth edition of the
A.M.A., Guides. Although arthritis is not an accepted condition, he indicated that the May 8,
2004 employment injury aggravated appellant’s preexisting arthritis and caused seven percent
right knee impairment due to arthritis. It is well established that, in determining the amount of
the schedule award for a member of the body that sustained an employment-related impairment,
preexisting impairments are to be included in the evaluation of permanent impairment.17 The
Office asked Dr. Lotman to provide a measurement of appellant’s right knee cartilage level by xray. He responded that his impairment rating was based on the diagnosis-based estimates section
of the A.M.A., Guides, which did not require measurement of cartilage thickness. However,
Dr. Lotman did not explain why he did not consider the separate section in the A.M.A., Guides
regarding impairment due to arthritis, section 17.2h at pages 544 to 545. He indicated that he
would provide a right knee cartilage measurement only if the Office felt it was necessary. In its
April 16, 2007 decision, the Board specifically instructed the Office to obtain a medical report
16

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
17

See Beatrice L. High, 57 ECAB 329, 332 (2006).

5

which included cartilage level measurements as shown on x-ray. The Board also noted in its
decision that the cross-usage chart, Table 17-2, permits the combination of diagnosis-based
impairment from Table 17-33 with Table 17-31 for impairment related to arthritis. The Board
further noted that an alternative rating method was the use of Table 17-8 at page 532 of the
A.M.A., Guides for muscle weakness. Dr. Billings included impairment for muscle weakness in
his impairment rating. However, Table 17-2 does not permit the combination of impairment for
muscle weakness with impairment due to arthritis.
Due to the conflict in the medical opinion evidence between Dr. Billings and Dr. Lofton
regarding appellant’s right lower extremity impairment, the case is remanded for referral to an
impartial medical specialist.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer appellant to an impartial medical specialist to resolve the conflict in the medical
opinion evidence. The impartial medical specialist should provide a comprehensive medical
report which provides an impairment rating for appellant’s right lower extremity, based on
correct application of the A.M.A., Guides. The impairment rating should be based on the
method which provides the highest percentage of impairment. The Board’s resolution of the first
issue renders the second issue moot.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 2, 2008 and August 27, 2007 are set aside and the case is
remanded for further action consistent with this decision of the Board.
Issued: May 22, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Dean T. Albrecht, for the appellant
Office of Solicitor, for the Director

Docket No. 09-856
Issued: November 19, 2009

Case Submitted on the Record

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

JURISDICTION
On February 11 2009 appellant filed a timely appeal from April 25 and August 15, 2008
and January 16, 2009 merit decisions of the Office of Workers’ Compensation Programs.
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 appellant met her burden of proof to establish that she had any
employment-related disability or medical condition after November 28, 2007 causally related to
her March 31, 2004 employment injury.
FACTUAL HISTORY
On April 5, 2004 appellant, then a 52-year-old data conversion operator, filed a claim for
an occupational disease alleging that on March 31, 2005 she developed arthritis, fibromyalgia
and carpal tunnel syndrome due to repetitive keying on data entry equipment and having a chair

with no armrests which caused strain on her neck, shoulders and arms.1 On June 1, 2005 the
Office accepted her claim for bilateral carpal tunnel syndrome. It subsequently accepted
aggravation of fibromyalgia, resolved, temporary aggravation of migraine headaches, resolved,
right arm reflex sympathetic dystrophy (RSD) and right medial nerve neuralgia that was
secondary to her right carpal tunnel release surgery.2 Appellant began receiving wage-loss
compensation on May 19, 2004. A May 12, 2005 electromyogram (EMG) and nerve conduction
study (NCS) revealed no evidence of carpal tunnel syndrome.
In reports dated January 17 and April 3, 2007, Dr. Daniel J. Schwartz, a Board-certified
internist specializing in sleep disorders, stated that appellant underwent a sleep study that did not
reveal significant respiratory abnormality (sleep apnea). He diagnosed a primary sleep disorder,
associated with difficulty both in initiating and maintaining sleep. Dr. Schwartz did not address
the cause of the sleep disorder.
On May 1, 2007 Dr. Lisa Flaherty, Board-certified in neurology by the American
Osteopathic Association and an Office referral physician, reviewed appellant’s medical history
and provided detailed findings on physical examination. She found no evidence of residuals of
appellant’s accepted bilateral carpal tunnel syndrome, RSD, fibromyalgia or migraines.
Dr. Flaherty indicated that the accepted condition of right medial nerve neuralgia had not
resolved but it was not disabling. She indicated that appellant’s sleep disorder and depression
were not work related.
By decision dated December 26, 2007, the Office terminated appellant’s wage-loss
compensation and medical benefits effective November 28, 2007, with the exception of medical
treatment for her right medial nerve neuralgia, on the grounds that the weight of the medical
evidence established that she had no continuing disability or medical condition causally related
to her March 31, 2004 employment injury. By decisions dated January 25, April 25 and
August 15, 2008, it denied modification of its December 26, 2007 termination decision.3
In reports dated February 5 and September 9, 2008, Dr. Raj M. Eliazer, a physician
specializing in clinical neurophysiology, reviewed appellant’s medical history and provided
findings on physical examination. He diagnosed bilateral carpal tunnel syndrome, fibromyalgia,
RSD and anxiety. Dr. Eliazer did not address the cause of these conditions.
In a May 20, 2008 report, Dr. Kenneth P. Botwin, a Board-certified physiatrist, noted that
he examined appellant as a new patient who had lumbar and cervical spine pain, right shoulder
pain and right hand pain which she attributed to her employment. He provided physical findings
on examination and diagnosed cervical spine stenosis and neuritis, carpal tunnel syndrome and

1

Appellant has another accepted work injury for cervical, thoracic and lumbar strains sustained on
April 17, 2002.
2

The Office noted that appellant’s preexisting medical conditions included fibromyalgia, chronic fatigue
syndrome, osteoarthritis and migraine headaches.
3

On March 19, 2008 appellant requested that her claim be expanded to include depression. She alleged that
constant pain from her accepted medial nerve neuralgia caused her depression.

2

“pain in limb.” Dr. Botwin did not opine as to the cause of these conditions. He recommended
an EMG and NCS and consultation with an orthopedic spine surgeon.
In a June 11, 2008 report, Dr. Anthony F. Kirkpatrick, a physician specializing in pain
medicine, reviewed the medical history and provided findings on physical examination. He
noted that appellant had significant swelling in her right hand and two trigger points in the right
shoulder. An infrared scanner revealed that appellant’s right forearm was two degrees cooler
than normal. The remainder of the examination was unremarkable. Dr. Kirkpatrick diagnosed
primary right carpal tunnel syndrome complicated by RSD. The RSD was itself complicated by
myofascial pain syndrome with trigger points in the right shoulder as well as significant
depression. On August 23, 2008 Dr. Kirkpatrick stated that appellant advised him of recent
actions by the Office that he found disturbing. The Office found that a negative bone scan ruled
out RSD, also known as complex regional pain syndrome (CRPS). He opined that the Office’s
conclusion contradicted scientific publications on the subject. Dr. Kirkpatrick asserted that a
bone scan had never been validated as a reliable diagnostic test for RSD and, in his experience,
the bone scan was normal in many cases of well-documented RSD. He stated that the objective
findings overwhelmingly supported the diagnosis of RSD.
In reports dated January 17 and 21, March 28, April 23 and September 22, 2008,
Dr. Walter E. Afield, a Board-certified specialist in neurology and psychiatry, reviewed
appellant’s medical history and noted that neurodiagnostic testing was performed.4 He
diagnosed major depression, fibromyalgia, RSD, migraine headaches, carpal tunnel syndrome
and supraspinatus tendinopathy in appellant’s right upper extremity, all of which caused chronic
pain and total disability. Dr. Afield opined that appellant’s emotional condition developed as a
result of her work-related medical conditions and was becoming worse. He expressed his
disagreement with the 2007 findings of Dr. Flaherty that appellant did not have RSD, migraines
or fibromyalgia.
In reports dated January 25 and February 16, 2008 and a February 15, 2008 baseline
sleep study report, Dr. Frank Scott Perrino, a Board-certified internist specializing in sleep
medicine, diagnosed distorted sleep architecture manifested by a distinct lack of delta sleep and
rapid eye movement (REM) sleep, severe sleep fragmentation and poor sleep efficiency. He
noted that appellant had a history of fibromyalgia and insomnia, also chronic fatigue syndrome,
anxiety, depression, memory loss, chronic headaches, hypothyroidism, irritable bowel syndrome,
recurrent bronchitis, pneumonia and allergies. Dr. Perrino noted that appellant had a family
history of sleep disorders. He indicated that sleep deprivation and fragmentation were a cause or
aggravating factor in fibromyalgia patients and patients with depression. On July 1, 2008
Dr. Perrino stated that there was clear continuity in appellant’s case which was initiated as a case
of worsening carpal tunnel syndrome, worsening fibromyalgia, worsening sleep and RSD. He
indicated that there was a logical and scientific progression of her conditions. Dr. Perrino opined
that appellant was totally disabled due to her sleep disorder and fibromyalgia. In a
September 22, 2008 report, he noted that appellant’s disability claim had been denied.
Dr. Perrino explained his disagreement with the opinion of Dr. Flaherty who examined appellant
4

There is a medical transcription error in Dr. Afield’s March 28, 2008 report in that Dr. Perrino is referred to as
Dr. Corrino.

3

on May 1, 2007 and found no residuals of appellant’s accepted bilateral carpal tunnel syndrome,
RSD, fibromyalgia or migraines.
Appellant requested reconsideration. By decision dated January 16, 2009, the Office
denied appellant’s claim for wage-loss compensation and medical benefits on the grounds that
the medical evidence did not establish any work-related disability or medical condition after
November 28, 2007.5
LEGAL PRECEDENT
Where the Office meets its burden of proof in justifying termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
related to the employment injury.6 In order to prevail, the employee must establish by the weight
of the reliable, probative and substantial evidence that he or she had an employment-related
disability which continued after termination of compensation benefits.7
ANALYSIS
The Board finds that, following the termination of appellant’s wage-loss compensation
and medical benefits on November 28, 2007, she failed to establish that she had any continuing
disability or medical condition causally related to her March 31, 2004 employment-related
conditions, bilateral carpal tunnel syndrome, aggravation of fibromyalgia, resolved, temporary
aggravation of migraine headaches, resolved, right arm RSD and right medial nerve neuralgia
secondary to her right carpal tunnel release surgery.
In reports dated February 5 and September 9, 2008, Dr. Eliazer reviewed appellant’s
medical history and provided findings on physical examination. He diagnosed bilateral carpal
tunnel syndrome, fibromyalgia, RSD and anxiety. Anxiety is not an accepted condition and
Dr. Eliazer did not provide sufficient explanation as to how this condition was causally related to
appellant’s job. He did not address the issue of whether appellant was disabled on or after
November 28, 2007 due to her accepted medical conditions. For these reasons, the opinion of
Dr. Eliazer is not sufficient to establish a work-related disability after November 28, 2007.
On May 20, 2008 Dr. Botwin noted that he examined appellant as a new patient who had
lumbar and cervical spine pain, right shoulder pain and right hand pain which she attributed to
her employment. He provided physical findings on examination and diagnosed cervical spine
stenosis and neuritis and carpal tunnel syndrome. Dr. Botwin did not address the cause of the
cervical spine stenosis and neuritis, which are not accepted conditions. He did not opine that
5

Subsequent to the January 16, 2009 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
6

I.J,.59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Anna M. Blaine, 26 ECAB 351, 353-54
(1975); see Fred Foster, 1 ECAB 127, 132-33 (1948).
7

I.J. supra note 6; Gary R. Sieber, 46 ECAB 215, 222 (1994); see Wentworth M. Murray, 7 ECAB 570,
572 (1955).

4

appellant was disabled on or after November 28, 2007 due to her accepted carpal tunnel
syndrome. Therefore, Dr. Botwin’s report does not establish that appellant had a work-related
disability or medical condition on or after November 28, 2007 causally related to her
employment.
On June 11, 2008 Dr. Kirkpatrick diagnosed primary right carpal tunnel syndrome
complicated by RSD. The RSD was itself complicated by myofascial pain syndrome with
trigger points in the right shoulder as well as significant depression. However, Dr. Kirkpatrick
did not address the issue of whether appellant had any employment-related disability or medical
condition on or after November 28, 2007. On August 23, 2008 he commented on a notation in
the Office’s August 15, 2008 decision which pointed out that he had not discussed, in his
June 11, 2008 report, a November 2, 2007 bone scan that failed to show active signs of RSD.
Dr. Kirkpatrick opined that a bone scan had never been validated as a reliable diagnostic test for
RSD and, in his experience, a bone scan was normal in many cases of well-documented RSD.
He stated that the objective findings overwhelmingly supported the diagnosis of RSD. However,
Dr. Kirkpatrick did not provide a rationalized explanation as to how appellant was disabled on or
after November 28, 2007 causally related to his accepted RSD or any of his other accepted
conditions which the Office found had resolved at the time of its December 26, 2007 termination
decision. Therefore, his reports do not establish an employment-related disability or medical
condition on or after November 28, 2007.
In reports dated January 25, February 15 and 16, July 1 and September 22, 2008,
Dr. Perrino diagnosed distorted sleep architecture manifested by a lack of delta and REM sleep,
severe sleep fragmentation and poor sleep efficiency. He indicated that appellant had a history
of fibromyalgia and insomnia, also chronic fatigue syndrome, anxiety, depression, memory loss,
chronic headaches and several other conditions. Dr. Perrino noted that appellant had a family
history of sleep disorders. He stated that sleep deprivation and fragmentation were a cause or
aggravating factor in fibromyalgia patients and patients with depression. Dr. Perrino opined that
there was a logical and scientific progression of appellant’s conditions through worsening carpal
tunnel syndrome, worsening fibromyalgia, worsening sleep and RSD. He indicated that
appellant was totally disabled due to her sleep disorder and fibromyalgia. However, the Office
has not accepted a sleep disorder in this case. In light of appellant’s family history of sleep
disorders noted by Dr. Perrino, he failed to provide sufficient rationale explaining how the sleep
disorder was causally related to appellant’s accepted carpal tunnel syndrome, fibromyalgia and
RSD. Although he opined that appellant’s accepted fibromyalgia caused disability, he did not
provide specific dates of disability. Dr. Perrino expressed his disagreement with the opinion of
Dr. Flaherty who examined appellant on May 1, 2007 and found no residuals of appellant’s
accepted bilateral carpal tunnel syndrome, RSD, fibromyalgia or migraines. However, the issue
on appeal is whether appellant had any disability or medical condition on or after November 28,
2007 causally related to his accepted medical conditions. Dr. Flaherty’s report addressed
appellant’s impairment as of May 1, 2007. Therefore, Dr. Perrino’s disagreement with
Dr. Flaherty’s May 1, 2007 report is not relevant to the issue on appeal. The Board finds that
Dr. Perrino’s reports do not establish that appellant had any work-related disability or medical
condition on or after November 28, 2007.
In reports dated December 17, 2007 to September 22, 2008, Dr. Afield diagnosed major
depression, fibromyalgia, RSD, migraine headaches, carpal tunnel syndrome and supraspinatus

5

tendinopathy in appellant’s right upper extremity, all of which caused chronic pain and total
disability. He opined that all the diagnosed conditions were causally related to appellant’s
employment. However, right upper extremity supraspinatus tendinopathy and depression are not
accepted conditions. Dr. Afield did not provide a rationalized explanation as to how these
conditions were causally related to appellant’s job. He did not provide objective findings on
physical examination and test results to establish that appellant was disabled on or after
November 28, 2007 due to her accepted fibromyalgia, RSD, migraine headaches, carpal tunnel
syndrome or right medial nerve neuralgia. Dr. Afield expressed his disagreement with the 2007
findings of Dr. Flaherty that appellant did not have RSD, migraines or fibromyalgia. However,
as noted, Dr. Flaherty examined appellant on May 1, 2007. The issue on appeal is whether
appellant had any disability or medical condition on or after November 28, 2007 causally related
to her accepted medical conditions. Dr. Afield did not provide a rationalized medical opinion,
supported by findings on physical examination and objective test results, establishing that
appellant was disabled on or after November 28, 2007 as a result of her accepted medical
conditions. Therefore, his reports do not discharge appellant’s burden of proof.
The Board finds that the medical evidence is not sufficient to establish that appellant had
any disability or medical condition after November 27, 2007 causally related to his accepted
medical conditions. Accordingly, the Office properly denied appellant’s claim for wage-loss
compensation and medical benefits after November 28, 2007.
On appeal appellant asserts that the weight of the medical evidence is on her side.
However, for the reasons given, the medical evidence fails to establish that she had any workrelated disability or medical condition on or after November 28, 2007 causally related to her
accepted medical conditions. Therefore, this argument is without merit.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had
any work-related disability or medical condition after November 28, 2007.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 16, 2009 and August 15 and April 25, 2008 are affirmed.
Issued: November 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NEBRASKA WESTERN IOWA HEALTHCARE
SYSTEM, Grand Island, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Gloria Kortum, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1459
Issued: December 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 5, 2013 appellant, through her representative, filed a timely appeal from an
April 19, 2013 nonmerit decision and a March 15, 2013 merit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant established that she sustained a traumatic injury in
the performance of duty on January 17, 2013; and (2) whether OWCP properly denied
appellant’s request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 2013 appellant, then a 50-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that she injured her right upper arm, causing numb tingling in
the fingers of her right hand, in the performance of duty on January 17, 2013. Her injury
occurred as a result of lifting a patient in his bed with the assistance of another employee.
Appellant experienced a sharp burning pain in her upper right arm and again when she lifted
another patient in bed with assistance. The employing establishment controverted the claim
stating that appellant did not follow policies regarding safe patient handling and did not report
her injury until January 23, 2013.
On February 4, 2013 OWCP requested additional factual and medical evidence from
appellant. It noted that she had not submitted any factual or medical evidence apart from her
Form CA-1. OWCP afforded appellant 30 days to submit additional evidence.
In a report dated January 29, 2013, Dr. Philip M. Cahoy, a Board-certified orthopedic
surgeon, obtained a history of right arm pain while repositioning a patient on January 17, 2013.
In the course of the repositioning, appellant had pain in the anterior lateral aspect of her arm that
radiated up into her shoulder and down into her hands. Dr. Cahoy related that appellant also had
left medial elbow pain and mentioned the alleged work-related incident. He limited appellant to
lifting only up to 10 pounds for one hour a day with her right arm. Appellant submitted two
prior reports from Dr. Cahoy from 2011 regarding tingling in her right hand and a right bicep
muscular injury. In a duty status report dated January 29, 2013, Dr. Cahoy listed a work
restriction of pulling or pushing up to one hour per day due to right arm pain.
In a February 6, 2013 attending physician’s report, Dr. Cahoy found that appellant had
right arm pain. He checked a box indicating that appellant’s condition was caused or aggravated
by an employment activity, noting “injury caused while repositioning a patient.”
On February 11, 2013 appellant advised OWCP that she and other staff “almost always”
repositioned patients as alleged and that her supervisors were aware of the manner in which she
repositioned patients. She described the incident in detail, noting that she did not report her
condition to a supervisor until January 22, 2013 because she did not think the pain in her right
arm would persist. Appellant provided physical therapy notes dated February 20, 2013 from
Mary Walsh-Sterup, an occupational therapist. She was treated for right arm pain and probable
carpal tunnel syndrome.
By decision dated March 15, 2013, OWCP denied appellant’s claim. It accepted that the
lifting incidents of January 17, 2013 occurred as alleged. It found that the medical evidence did
not provide a firm medical diagnosis other than “pain.” Further, appellant had not responded to
its inquiries regarding previous injuries to her right arm or biceps.
On March 26, 2013 appellant requested reconsideration. She submitted a duplicate copy
of Dr. Cahoy’s January 29, 2013 report, physical therapy notes dated March 13 and 15, 2013
from Ms. Walsh-Sterup and a March 13, 2013 work restriction report from Dr. Cahoy.
By decision dated April 19, 2013, OWCP denied appellant’s request for reconsideration.
It found that she failed to provide any new argument or evidence in support of her claim. It
noted that the January 29, 2013 report from Dr. Cahoy was duplicative of evidence already of
2

record. The physical therapy notes did not contain any diagnosis of a condition by a physician
and the March 13, 2013 work restriction report from Dr. Cahoy did not provide a diagnosis. As
such, the evidence did not warrant further merit review of her claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.7 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.8

2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

See J.Z., 58 ECAB 529, 531 (2007); Paul E. Thams, 56 ECAB 503, 511 (2005).

7

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

James Mack, 43 ECAB 321, 329 (1991).

3

ANALYSIS -- ISSUE 1
OWCP accepted that the lifting incidents of January 17, 2013 occurred at the time, place
and in the manner alleged. Appellant assisted in repositioning two bedridden patients. The issue
is whether she has established that she sustained a right arm condition as a result of the
January 17, 2013 employment incident. The Board finds that appellant did not meet her burden
of proof to establish that she has a right arm condition causally related to the January 17, 2013
employment incident.
Appellant submitted several reports from Dr. Cahoy. On January 29, 2013 Dr. Cahoy
stated that he assessed her as having right arm pain. In an attending physician’s report of
February 6, 2013, he reiterated that appellant had right arm pain. Dr. Cahoy checked a box
indicating that appellant’s condition was caused or aggravated by an employment activity,
adding “injury caused while repositioning a patient.” On January 29, 2013 he listed a work
restriction of pulling or pushing up to one hour a day based on appellant’s right arm pain.
The Board has held that pain is generally a description of a symptom and not considered
a firm medical diagnosis.9 Dr. Cahoy’s description right arm pain is not sufficient to establish a
firm medical diagnosis related to the accepted incident at work. His January 29, 2013 duty status
report and March 13, 2013 work restriction report did not provide any diagnoses or assessment
of appellant’s condition. Therefore, the Board finds the reports of Dr. Cahoy insufficient to
establish appellant’s claim. Moreover, reports dated in 2011 note that appellant was previously
treated by Dr. Cahoy for her right hand and biceps. Dr. Cahoy did not provide a full medical
history of prior treatment or otherwise address how the incident of January 17, 2013 caused or
aggravated any preexisting right arm condition.
Appellant submitted physical therapy notes dated February 20 to March 15, 2013 from
Ms. Walsh-Sterup, an occupational therapist. An occupational therapist is not a “physician” as
defined under FECA. Therefore, her medical reports do not qualify as probative medical
evidence supportive of a claim for federal workers’ compensation.10 Absent approval by a
physician, the therapy notes are not probative medical evidence.
The Board finds that appellant did not submit sufficient medical evidence which provided
a firm diagnosis or a rationalized explanation as to how the accepted incident physiologically
caused a right arm condition. Appellant therefore failed to establish that she has a right arm
condition resulting from the January 17, 2013 employment incident.
Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.11 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.

9

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 10, 2008).

10

See 5 U.S.C. § 8101(2); Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000).

11

20 C.F.R. § 501.2(c).

4

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.12 Section 10.608(b) of OWCP’s regulations
provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.13 The Board has found
that evidence that repeats or duplicates evidence already in the case record has no evidentiary
value.14
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
On March 26, 2013 appellant requested reconsideration of the March 15, 2013 decision
denying her claim for compensation for a traumatic injury. Her request for reconsideration did
not allege or demonstrate that OWCP erroneously applied or interpreted a specific point of law.
Appellant did not advance a relevant legal argument not previously considered by OWCP. Thus,
she was not entitled to a review of the merits of her claim based on the first and second
requirements under section 10.606(b)(2).
Appellant also did not submit relevant and pertinent new evidence not previously
considered by OWCP. Dr. Cahoy’s report dated January 29, 2013 was previously of record,
having been first received on February 5, 2013. Submitting evidence that repeats or duplicates
information already of record does not constitute a basis for reopening a claim.15 Therefore, this
report was insufficient to require a merit review of appellant’s claim.
While the therapy notes dated March 13 and 15, 2013 and the work restriction report
dated March 13, 2013 from Dr. Cahoy were new to the record, they are not relevant to the
grounds upon which OWCP denied appellant’s claim. The evidence failed to address the
underlying issue of causal relationship. The documentation does not include a physician’s firm
medical diagnosis or a discussion of how the employment incident of January 17, 2013 caused a
personal injury. As noted, therapy notes, without the countersignature of a physician, do not
constitute probative medical evidence.16 The report of Dr. Cahoy failed to provide a firm

12

Id. at § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

13

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

14

See Daniel Deparini, 44 ECAB 657, 659 (1993).

15

Id.; James W. Scott, 55 ECAB 606, 608 n.4 (2004).

16

Supra note 10.

5

medical diagnosis or address the issue of causal relation. Therefore, it is not relevant.17 A
claimant may be entitled to merit review by submitting new and relevant evidence, but appellant
did not submit any relevant medical evidence in this case.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a right arm injury on January 17, 2013 in the performance of duty. OWCP properly
denied her request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 19 and March 15, 2013 are affirmed.
Issued: December 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

17

See K.W., Docket No. 12-1590 (issued December 18, 2012).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1121
Issued: November 18, 2019

Case Submitted on the Record

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

JURISDICTION
On April 22, 2019 appellant, through counsel, filed a timely appeal from a March 13, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted March 28, 2018 employment incident.

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 March 28, 2018 appellant, then a 54-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on March 28, 2018 she sustained a left shoulder
strain when pulling and lifting passenger bags while in the performance of duty. She stopped work
on that date.
In an April 17, 2018 report, Dr. Richard Trifiro, a family medicine specialist, noted that
appellant presented for a follow-up evaluation of the left shoulder injury sustained on
March 28, 2018. He indicated that she continued to complain of pain, but that she was improving.
Dr. Trifiro diagnosed strain of left trapezius muscle and strain of left shoulder and provided work
restrictions of lifting 15 pounds constantly, pushing and pulling 25 pounds constantly, and no
reaching above shoulders.
In an April 30, 2018 development letter, OWCP requested that appellant provide additional
factual and medical evidence in support of her claim, including a detailed factual statement and a
report from her attending physician addressing the causal relationship between any diagnosed
condition(s) and the claimed March 28, 2018 work incident. It afforded her 30 days to provide
additional evidence.
In response, appellant submitted two narrative statements dated May 17, 2018 indicating
that she was pulling passenger bags up to the conveyor belt and lifting them with the handle onto
the belt to be x-rayed. She stated that the bags weighed as much as 50 to 100 pounds and she was
alternating, using both arms. At approximately 8:00 a.m., appellant felt a pop in her left shoulder
and when she continued to experience pain she informed her supervisor.
Appellant also submitted progress reports dated March 28, April 24, May 1 and 22, 2018
from Dr. Trifiro, who asserted that appellant injured her left shoulder on March 28, 2018 while
lifting heavy baggage at work, felt a shooting pain, and could not lift her arm fully. Dr. Trifiro
diagnosed adhesive capsulitis of the left shoulder and continued his previously provided work
restriction.
On May 8, 2018 Dr. John Dang, a Board-certified orthopedic surgeon, diagnosed strain of
left shoulder and adhesive capsulitis of the left shoulder and provided work restrictions of lifting
up to 20 pounds constantly, pushing and pulling up to 25 pounds constantly, and no overhead
lifting.
In a letter dated May 29, 2018, the employing establishment controverted appellant’s claim
and argued that video footage confirmed that she did not utilize her left arm/hand/shoulder for the
entire period of time she was working prior to reporting the alleged injury on March 28, 2018. It
also noted that she was under administrative review for disciplinary action resulting in proposed
suspension due to inappropriate behavior while in the performance of duty. The employing
establishment enclosed a compact disc (CD) file of the surveillance footage.
Appellant subsequently submitted physical therapy treatment notes dated March 30, 2018
in support of her claim.
In progress reports dated April 3 and 10, May 29, and June 8, 2018, Dr. Trifiro reiterated
his diagnoses and work restrictions.
2

By decision dated August 3, 2018, OWCP found that the factual evidence of record was
insufficient to establish that the March 28, 2018 incident occurred at the time, place, and in the
manner alleged.
On August 23, 2018 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review. Counsel also submitted chart notes dated June 18 to
July 13, 2018 from appellant’s chiropractor, Dr. Paul M. Raymond, who observed edema/swelling,
tenderness, and muscle weakness in the left anterior shoulder region. He also submitted a July 25,
2018 report from Dr. Raymond regarding his examination of appellant’s right shoulder.
In a July 17, 2018 report, Dr. Dominic G. Sreshta, a Board-certified internist and hospice
care and palliative medicine specialist, diagnosed strain of unspecific muscle, fascia and tendon at
shoulder and upper arm level, left arm and adhesive capsulitis of the left shoulder. He reported
that appellant recounted that she was injured while performing her normal work duties at her
normal capacity.
A telephonic hearing was held before an OWCP hearing representative of the Branch of
Hearings and Review on January 3, 2019.
By decision dated March 13, 2019, OWCP’s hearing representative affirmed, as modified,
the prior decision. OWCP accepted that she was lifting and sliding bags on March 28, 2018 and
although she predominately used her right arm, she also used her left arm in the performance of
duty. It determined, however, that the medical evidence of record was insufficient to establish that
she sustained a diagnosed condition causally related to the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

3

Id.

4

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).
5

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

3

time, place, and in the manner alleged.6 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 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.9 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).10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted March 28, 2018 employment incident.
In support of her claim, appellant submitted a series of notes from Dr. Trifiro and a report
by Dr. Sreshta. Dr. Trifiro and Dr. Sreshta diagnosed left shoulder conditions and indicated that
appellant recounted that she was injured while performing her normal work duties. These reports,
however, do not provide an opinion as to causal relationship between the accepted March 28, 2018
employment incident and the diagnosed conditions. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.11 These reports, therefore, are insufficient to establish
appellant’s claim.
Likewise, appellant also submitted evidence from Dr. Dang, who diagnosed strain and
adhesive capsulitis of the left shoulder on May 8, 2018, and Dr. Raymond, who observed
edema/swelling, tenderness, and muscle weakness in the left anterior shoulder region and
previously examined appellant for a right shoulder condition. The Board further finds that neither
of these physicians addressed causal relationship and thus their reports are of no probative value
and insufficient to meet appellant’s burden of proof.12
Appellant further submitted physical therapy treatment notes. The Board has held that
medical reports signed solely by a physical therapist are of no probative value as such health care
providers are not considered physicians as defined under FECA and are therefore not competent

6

G.C., Docket No. 18-0506 (issued August 15, 2018).

7

Id.

8

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

9

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

10

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

11

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

12

Id.

4

to provide medical opinions.13 Consequently, this evidence is also insufficient to establish
appellant’s claim.
As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment incident, the Board finds that she has not met
her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted March 28, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 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). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA); J.M., 58 ECAB 448 (2007) (physical
therapists are not considered physicians under FECA).

5