United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY AGENCY,
BOB HOPE AIRPORT, Burbank, CA, Employer
__________________________________________

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

Docket No. 19-1926
Issued: March 19, 2021

Case Submitted on the Record

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

JURISDICTION
On September 17, 2019 appellant, through counsel, filed a timely appeal from a May 23,
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.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the May 23, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include the additional conditions of mild cognitive impairment and somatoform disorder
as a consequence of his accepted employment injuries.
FACTUAL HISTORY
On February 8, 2013 appellant, then a 49-year-old administrative officer, filed a traumatic
injury claim (Form CA-1) alleging that on February 7, 2013 he sustained injuries to the neck, back,
and buttocks when he stumbled as he was exiting a government vehicle while in the performance
of duty. He explained that his arm became tangled in the seat belt which caused him to stumble
into the rear passenger door of the car. Appellant stopped work on February 7, 2013. OWCP
assigned the claim File No. xxxxxx038 and accepted it for temporary aggravations of lumbar
sprain, neck sprain and lumbosacral radiculitis.
The record reflects that Dr. Scott Baden, a Board-certified orthopedic surgeon, followed
appellant after his July 22, 2004 employment injury. Dr. Baden’s treatment was largely focused
on low back complaints and conservative measures to address pain.
In an April 16, 2009 report, Dr. Kevin J. Pelton, a Board-certified orthopedic surgeon,
diagnosed cervical strain with radiculitis, status post lumbar fusion with residual radiculopathy.
He also provided a diagnosis of status post head trauma with migraines. In a July 30, 2009 note,
and in subsequent reports, Dr. Pelton attributed appellant’s headaches to his prior lumbar fusion
and residual radiculopathy.
In a November 9, 2011 report, Dr. Navid Farahmand, Board-certified in pain medicine,
opined that migraines can be caused by cervical pathology or other intrinsic causes.
Appellant continued to be followed by Dr. Pelton. He also continued to receive pain
management services as well as chiropractic care.
In a September 20, 2016 note, Dr. Shahin Sadik, Board-certified in pain medicine, reported
that appellant had related that he struck his head and injured his back and neck in a nonfederal
work-related injury. He reported that he continued to have headaches, memory issues and loss of
smell from the head injury. Dr. Sadik opined that appellant had daily migraine headaches and was
very photo and phono sensitive. He also opined that appellant has ongoing cognitive dysfunction
related to the head injury. Dr. Sadik requested authorization for appellant to see Dr. Edinger, as
she had experience with patients with history of traumatic brain injury.
In a May 4, 2017 report, Michelle Conover, Ph.D., a clinical psychologist, noted that
appellant reported onset of migraines in 1996 following a fall. The headaches had diminished by
2000, but returned after the 2004 employment injury. Appellant attributed his headaches to his
back pain, noting that he had used a cane for stability since 2000. He also acknowledged memory
problems secondary to the 1996 injury, but asserted that those symptoms had improved in 2000
and then returned after the 2004 employment-related fall. Appellant indicated that after his
February 1996 fall, his deteriorating cognitive faculties forced him to retire. He admitted that he
was knocked unconscious in the 1996 fall and suffered cognitive symptoms thereafter, including
confusion, with other deputies pointing out his difficulties to him. Appellant denied loss of
2

consciousness in the 2004 fall and was uncertain whether a diagnosis of concussion was ever made.
He asserted, however, that he had significant cognitive difficulties thereafter. Appellant advised
that he retired in 2013 as his supervisors were not supportive of his injuries and his ability to walk
was at risk due to his lumbar pathology. Dr. Conover noted her examination findings and
diagnosed mild neurocognitive disorder due to a traumatic head injury and unspecific somatic
symptoms disorder.
On February 20, 2018 Dr. Conover’s office manager requested that possible consequential
conditions of mild cognitive impairment and unspecified somatoform disorder be added to
appellant’s claim under OWCP File No. xxxxxx038.4
In an April 26, 2018 report, Dr. Lara Edinger, a Board-certified neurologist and pain
management specialist, opined that appellant’s chronic neck pain and migraine headaches were
secondary to work-related injury. She noted that appellant suffered head, neck, and back injury in
1996 and suffered another head injury in 2004. Dr. Edinger reported that appellant had persistent
issues with memory, has lost sense of smell, and has significant photophobia in relation to his
headaches. Appellant reported ongoing issues with word finding. Dr. Edinger diagnosed
cervicogenic headache, obstructive sleep apnea, spondylosis without myelopathy or radiculopathy,
cervical region, lumbar radiculitis, chronic post-traumatic headache, intractable, migraine aura,
medication overuse headache, supraorbital neuralgia, occipital neuralgia, other long-term drug
therapy, degenerative disc disease, cervical, arthropathy of lumbar facet joint, and musculoskeletal
pain.
In a May 29, 2018 development letter, OWCP advised appellant that the evidence of
record, including the most recent medical report in file dated April 26, 2018, was insufficient to
establish possible consequential conditions of mild cognitive impairment and unspecified
somatoform disorder. It noted the type of evidence necessary to establish his claim, including a
comprehensive, narrative medical report from a qualified physician that included a diagnosis of
the consequential conditions and an opinion, supported by medical rationale, addressing how the
claimed conditions were related to the accepted 2004 and/or 2013 employment injuries or the
accepted medical conditions. OWCP afforded appellant 30 days to submit the necessary
evidence.5 No additional evidence was received.
By decision dated July 23, 2018, OWCP denied expansion of the acceptance of appellant’s
claim to include a consequential injury of mild cognitive impairment and somatoform disorder. It
found no reasoned medical opinion relating either condition to the accepted employment injuries.
On July 30, 2018 appellant, through his counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
December 13, 2018.

4

The request was not for treatment, but to discern appellant’s cognitive, emotional and behavior functioning to
figure out if he suffered with any mental health condition.
5

A July 12, 2018 statement of accepted facts (SOAF) noted appellant’s accepted employment injuries of
February 7, 2013 and July 22, 2004 and his 1996 nonindustrial spinal fusion at the L2-3 level.

3

OWCP received copies of ongoing pain management services dated August 13, 2018
onward relating to, facet nerve blocks for treatment of cervical facet arthropathy, and trigger
injections for myofascial pain syndrome.
By decision dated February 27, 2019, OWCP’s hearing representative affirmed OWCP’s
July 23, 2018 decision, finding that the medical evidence of record was insufficient to establish
that the claimed cognitive and somatoform disorders were related to his accepted employment
injuries of 2004 or 2013 by either direct causation or consequential injury.
On April 30, 2019 appellant, through counsel, requested reconsideration. He requested
that OWCP review Dr. Edinger’s March 28, 2019 report.
OWCP received medical reports from Dr. Edinger, which were also coauthored with
Dr. Sadik, dated March 28 and May 2, 2019. In the March 28, 2019 report, Drs. Edinger and Sadik
provided a history of chronic neck pain, and migraine headaches secondary to work-related
injuries. Dr. Edinger noted that appellant had a head, neck, and back injury in 1996 and another
head injury in 2004. Diagnoses of lumbar back sprain, lumbosacral radiculopathy, spondylosis
without myelopathy or radiculopathy, cervical region, chronic post-traumatic headache,
intractable, migraine aura, persistent, medication overuse headache, suborbital neuralgia and
occipital neuralgia were provided. Drs. Edinger and Sadik reported that appellant’s headaches
began when he fell back onto a bookshelf in 2004. Dr. Edinger noted that appellant was positive
for loss of consciousness, slurred speech, dizziness, nausea, vomiting, photophobia and an
immediate headache. Appellant reported a history of nausea for a week, vomiting for three days,
speech problems for two to three days, difficulty with memory and concentration, headaches, and
photophobia. Drs. Edinger and Sadik opined that appellant met the criteria for concussion after
this incident, which has led to chronic post-traumatic headaches. This also has resulted in
prolonged memory and concentration issues. On May 2, 2019 Drs. Edinger and Sadik related that
she had provided a supraorbital nerve block.
Medical reports regarding appellant’s pain management progress dated March 11, April 22
and May 3, 2019 from Dr. Edinger and Dr. Sadik were also received. They continued to diagnose
lumbar back sprain, lumbosacral radiculopathy, spondylosis without myelopathy or radiculopathy,
cervical region, chronic post-traumatic headache, intractable, migraine aura, persistent, medication
overuse headache, suborbital neuralgia and occipital neuralgia.
By decision dated May 23, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.6 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.7

6

See I.S., Docket No. 19-1461 (issued April 30, 2020); see Charles W. Downey, 54 ECAB 421 (2003).

7

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

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The claimant bears the burden of proof to establish a claim for a consequential injury.8 As
part of this burden, the claimant must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.9 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include the additional conditions of mild cognitive impairment and somatoform
disorder as a consequence of his accepted employment injuries.
The record reflects that prior to appellant’s federal employment he suffered injuries to his
head, back, and neck in 1996 while working as a sheriff’s deputy. Appellant also underwent a
lumbar fusion at L2-3 in 1996. As noted, an employee claiming a consequential injury has the
burden to provide rationalized medical evidence showing how the subsequently-acquired medical
condition is a consequence of the prior employment injury.12
Appellant has claimed consequential cognitive dysfunction and somatoform disorder.
However, there is no rationalized medical opinion evidence relating the cause of such conditions
as a consequence of either of his accepted employment injuries in 2004 or 2013.
With regard to the claimed cognitive impairment as a consequence of his accepted
employment injuries, Dr. Pelton, in an April 16, 2009 report, diagnosed status post head trauma
with migraines. However, his report is of no probative value regarding appellant’s consequential
claim as he did not provide an opinion regarding the cause of appellant’s post head trauma. 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.13

8

See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April 30, 2020).

9

K.W., Docket No. 18-0991 (issued December 11, 2018); P.M., Docket No. 18-0287 (issued October 11, 2018).

10

P.M., id.

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
K.G., Docket No. 18-1598 (issued January 7, 2020); M.S., Docket No. 19-0913 (issued November 25, 2019).
12

C.H., supra note 8.

13

See L.D., Docket No. 20-0894 (issued January 26, 2021); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).

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On November 9, 2011 Dr. Farahmand related that migraines can be caused by cervical
pathology or other intrinsic causes. His speculative opinion did not causally relate appellant’s
claimed cognitive impairment to the accepted employment injuries and is therefore insufficient to
establish the claim.14
In a September 20, 2016 note, Dr. Sadik opined that appellant’s daily migraine headaches
and ongoing cognitive dysfunction related to the head injury he sustained while working.
However, he related appellant’s symptomology to the 1996 nonindustrial employment injury.
Thus, Dr. Sadik’s report is of little probative value regarding appellant’s consequential claim.
In a May 4, 2017 report, Dr. Conover reported that appellant admitted to memory problems
secondary to the 1996 injury, but asserted that those symptoms had improved in 2000 and then
returned after the 2004 employment-related fall. Appellant denied loss of consciousness in the
2004 fall, but asserted that he had significant cognitive difficulties thereafter. While Dr. Conover
diagnosed mild neurocognitive disorder due to a traumatic head injury and unspecific somatic
symptoms disorder, no opinion regarding the cause of appellant’s conditions were provided. As
previously noted, 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.15 Thus,
Dr. Conover’s report is insufficient to establish appellant’s consequential claim.
OWCP also received multiple progress reports from Dr. Edinger which related appellant’s
pain management progress. The reports noted that appellant suffered head, neck, and back injury
in 1996 and had another head injury in 2004. Dr. Edinger diagnosed lumbar back sprain,
lumbosacral radiculopathy, spondylosis without myelopathy or radiculopathy, cervical region,
chronic post-traumatic headache, intractable, migraine aura, persistent, medication overuse
headache, suborbital neuralgia and occipital neuralgia. However, Dr. Edinger did not provide an
opinion linking either a somatoform disorder or a cognitive disorder to the accepted employment
injuries.16
In March 28 and May 2, 2019 reports, coauthored by Dr. Sadik, and Dr. Edinger reported
that appellant’s headaches began when he fell back onto a bookshelf in 2004. Dr. Edinger noted
appellant’s symptoms following such event as reported by appellant and that he was positive for
loss of consciousness, slurred speech, dizziness, nausea, vomiting, photophobia and an immediate
headache. Drs. Edinger and Sadik collectively opined that appellant met the criteria for concussion
after this incident, which has led to chronic post-traumatic headaches and also resulted in
prolonged memory and concentration issues. While the physicians provided an affirmative
opinion that appellant’s chronic post-traumatic headaches resulted in prolonged memory and
concentration issues, their opinion regarding a consequential injury is of little probative value
because her report is based on an incomplete factual and medical background. Drs. Edinger and
Sadik did not mention or describe the prior head injury that appellant suffered in 1996. Further,
the record is devoid of a positive showing that appellant lost consciousness in the 2004
employment incident; rather, it was only accepted that he struck his head on a bookshelf in 2004.
The Board has held that medical reports must be based on a complete and accurate factual and
14

See M.B., Docket No. 19-0882 (issued November 6, 2019).

15

See supra note 15.

16

Id.

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medical background. Medical opinions based on an incomplete or inaccurate history are of limited
probative value.17 As previously noted, in any case where a preexisting condition involving the
same part of the body is present and the issue of causal relationship therefore involves aggravation,
acceleration, or precipitation, the physician must provide a rationalized medical opinion that
differentiates between the effects of the work-related injury or disease and the preexisting
condition.18 As the record reveals that the 1996 nonindustrial injury resulted in severe cognitive
issues by appellant’s own account, a well-rationalized opinion is needed to explain if and how the
accepted 2004 head strike could have resulted in or aggravated appellant’s chronic post-traumatic
headaches with resulting prolonged memory and concentration issues.19 Dr. Sadik and
Dr. Edinger’s reports therefore are insufficient to establish appellant’s consequential claim.
On appeal counsel argues that OWCP failed to use the proper standard of causation and
failed to give due deference to the attending physician. For the reasons explained above, however,
the medical reports on file are insufficient to establish a consequential injury claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include the additional conditions of mild cognitive impairment and somatoform
disorder as a consequence of his accepted employment injuries.

17
See S.B., Docket No. 20-0643 (issued January 27, 2021); A.W., Docket No. 17-0285 (issued May 25, 2018); C.L.,
Docket No. 14-1585 (issued December 16, 2014); Douglas M. McQuaid, 52 ECAB 382 (2001).
18

See supra note 13.

19

See C.H., supra note 8; D.J., Docket No. 16-0663 (issued October 20, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the May 23, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 19, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Middleburg Heights, OH, Employer
__________________________________________

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

Docket No. 07-1969
Issued: December 27, 2007

Case Submitted on the Record

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

JURISDICTION
On July 19, 2007 appellant filed a timely appeal from the merit decisions of the Office of
Workers’ Compensation Programs dated September 11, 2006 and June 25, 2007 denying his
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on or about April 4,
2006 causally related to his July 11, 1998 employment injury.
FACTUAL HISTORY
On July 13, 1998 appellant, then a 50-year-old letter carrier, filed a traumatic injury claim
alleging that on July 11, 1998 he was hit by a truck backing out of a driveway and sustained an
acute leg strain, contusion of the left leg and pelvic strain. On July 21, 1998 the Office accepted
appellant’s claim for paralumbar strain, contusion of left leg and contusion of right shoulder.
The Office paid appropriate compensation and medical benefits.

On April 4, 2006 appellant filed notice of a recurrence of disability due to the July 11,
1998 employment injury commencing that date. He noted that, after the injury, he returned to
the employing establishment working light duty answering telephones.
In a report dated April 4, 2006, Dr. Jessica Bittence, a family practitioner, placed
appellant on total disability due to a chronic lumbar sacral strain. She prescribed medication.
Dr. Bittence indicated that appellant told her that he had experienced back pain since a workers’
compensation injury in 1998, that the pain has been on and off and that he has been hospitalized
on occasion for pain. Appellant was next seen by Dr. Bittence on April 7, 2006, at which time
she recommended physical therapy and transitional alternative work. Dr. Bittence completed a
duty status report indicating that appellant could return to work but was limited to lifting 5
pounds continuously and 10 pounds intermittently. She noted that appellant could only case mail
with no carrying. Appellant was prohibited from kneeling, bending and twisting.
Dr. Bittence saw appellant again on April 14 and 28 and May 18, 2006. On April 14,
2006 her office contacted appellant’s caseworker in an attempt to reactivate or reopen his claim.
On April 14, 2006 appellant’s restrictions remained the same except that Dr. Bittence added a
restriction indicating that appellant could do no climbing. The duty status reports of April 28
and May 18, 2006 removed the restrictions with regard to climbing, kneeling, bending and
twisting, but the restriction with regard to lifting only 5 pounds continuously and 10 pounds
intermittently remained. Dr. Bittence reiterated that appellant could only case mail but not carry
mail.
By letter dated August 7, 2006, the Office requested that appellant submit further
information. No further information was received.
By decision dated September 11, 2006, the Office denied appellant’s claim finding that
the factual and medical evidence was not sufficient to establish that his current medical condition
was causally related to the accepted work injury of July 11, 1998.
On September 12, 2006 appellant, through his attorney, requested an oral hearing. At the
hearing held on March 28, 2007, appellant testified that, following the July 11, 1998 injury, he
was off work for a while, but then returned. He noted that he subsequently went to a
chiropractor which he paid for himself. Appellant discussed other workers’ compensation claims
he filed subsequent to the 1998 claim. He stated that he saw Dr. Bittence because he had hip and
back problems on and off for years and wanted some pills to deal with the pain.
By decision dated June 25, 2007, the hearing representative affirmed the denial of
appellant’s claim for recurrence.1

1

The hearing representative modified the September 11, 2006 decision to reflect that the original accepted
condition in this case did not include a contusion of the left foot and ankle, as the Office erroneously noted in its
decision.

2

LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability for which he claims
compensation is causally related to the accepted employment injury.3 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.4 Moreover, the
physician’s conclusion must be supported by sound medical reasoning.5
ANALYSIS
Appellant has not submitted evidence sufficient to establish that he sustained a recurrence
of disability on April 4, 2006 causally related to his accepted work injury of July 11, 1998.
Appellant’s July 11, 1998 claim was initially accepted for paralumbar strain, contusion of the left
leg and contusion of the right shoulder. He returned to work. Almost eight years later, appellant
filed a claim alleging a recurrence of disability on April 4, 2006. However, there is no
rationalized medical opinion evidence of record to support his claim. Dr. Bittence placed
appellant on total disability on April 4, 2006 and released him to return to limited-duty work on
April 7, 2006. Although she mentioned the July 11, 1998 employment injury and referred
generally to his workers’ compensation claim, Dr. Bittence provided no statement clearly
relating appellant’s current back condition and disability in 2006 to the accepted injury.
Dr. Bittence did not provide a rationalized medical opinion explaining how appellant’s April 4,
2006 lumbosacral strain was related to an employment injury in 1998. The Board finds that
appellant has failed to provide sufficient medical evidence in support of his claim for a
recurrence of disability and has not met his burden of proof.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing a
recurrence of disability causally related to his July 11, 1998 employment injury on or about
April 4, 2006.

2

20 C.F.R. § 10.5(x).

3

Kenneth R. Love, 50 ECAB 193, 199 (1998).

4

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

5

Alfredo Rodriquez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 25, 2007 and September 11, 2006 are affirmed.
Issued: December 27, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 14-1348
Issued: October 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 16, 2014 appellant timely appealed the January 27, 2014 merit decision of the
Office of Workers’ Compensation Programs (OWCP) regarding a schedule award. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has greater than three percent impairment of the right leg.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its January 27, 2014 decision. The Board
is precluded from considering evidence that was not of record at the time OWCP issued its final decision. 20 C.F.R.
§ 501.2(c)(1) (2012).

FACTUAL HISTORY
Appellant, a 58-year-old former welder, has an accepted claim for chondromalacia of the
right patella, which arose on or about December 3, 2003. OWCP approved an October 21, 2005
right knee arthroscopic procedure, which included debridement of a grade 2 to 3 patellar articular
cartilage lesion. Appellant’s surgeon released him to perform limited-duty work effective
November 3, 2005. In October 2008, the employing establishment assigned appellant to the
position of material handler/expediter.3 On June 25, 2013 appellant filed a claim for a schedule
award (Form CA-7).
Dr. Michael S. McManus, an attending physician Board-certified in occupational
medicine, provided a July 17, 2013 impairment rating under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (2008). He diagnosed
secondary arthritis and chondromalacia, primarily involving the patellofemoral compartment of
the right knee. Dr. McManus also noted that appellant was status post chondroplasty of the
patella. According to him, appellant reached maximum medical improvement as of June 24,
2013, which was the date of his most recent prior examination. He rated 10 percent right lower
extremity impairment under Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 511 (6th ed.
2008). Dr. McManus used the diagnosis of patellofemoral arthritis with a two mm cartilage
interval. He indicated that appellant’s latest right knee x-ray, dated June 24, 2013, revealed
cartilage interval narrowing to 2.3 mm in the lateral aspect of the patellofemoral compartment.4
This represented class 1 impairment (CDX 1) with a default (grade C) lower extremity rating of
10 percent. With respect to grade modifiers, Dr. McManus assigned a value of 1 for Functional
History (GMFH 1) and Physical Examination (GMPE 1). He did not include a grade modifier
for Clinical Studies (GMCS) because appellant’s x-ray results formed the basis of the class
assignment. Dr. McManus calculated a net adjustment of zero.5 Accordingly, the final right leg
impairment rating was 10 percent (grade C).
On August 5, 2013 Dr. Kenneth D. Sawyer, a district medical adviser, reviewed the case
record and the July 17, 2013 impairment rating of Dr. McManus. He disagreed with the 10
percent rating for patellofemoral arthritis with a two-millimeter (mm) cartilage interval.
Dr. Sawyer noted that the x-rays of record did not describe any narrowing of the patellofemoral
joint space or provide any actual measurement. Instead of rating appellant based on cartilage
interval narrowing, Dr. Sawyer relied on a diagnosis of patellofemoral arthritis with fullthickness articular cartilage defect. Under Table 16-3, A.M.A., Guides 511 (6th ed. 2008), this
diagnosis represented class 1 impairment with a default rating of three percent. Dr. Sawyer
otherwise concurred with Dr. McManus’ assignment of grade modifiers and his net adjustment
calculation of zero (0). He found that appellant reached maximum medical improvement as of
July 17, 2013, the date of Dr. McManus’ examination.
3

Appellant served in this capacity until he retired on July 31, 2013.

4

The June 24, 2013 x-rays consisted of four views of the right knee read by Dr. Donna M. White, a radiologist,
who noted mild degenerative arthritis with no significant interval change.
5

Net Adjustment (0) ꞊ (GMFH 1-CDX 1) + (GMPE 1-CDX 1). See section 16.3d, A.M.A, Guides 521
(6 ed. 2008).
th

2

On August 26, 2013 OWCP granted a schedule award for three percent right leg
impairment.
The award covered a period of 8.64 weeks from July 17 through
September 15, 2013.
Appellant timely requested a review of the written record. He did not submit any
additional medical evidence.
By decision dated January 27, 2014, the hearing representative affirmed the August 26,
2013 schedule award for three percent right leg impairment.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.7
Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides (2008).8
ANALYSIS
Appellant’s physician, Dr. McManus, provided a July 17, 2013 right lower extremity
impairment rating of 10 percent. His finding was based on a diagnosis of patellofemoral arthritis
with a two mm cartilage interval. Dr. McManus stated that appellant’s June 24, 2013 right knee
x-ray revealed a cartilage interval of 2.3 mm in the lateral aspect of the patellofemoral
compartment. These films were obtained by Dr. White whose impression was mild degenerative
arthritis. She noted “no significant interval change….” Dr. White did not list any specific
measurement that would support the rating by Dr. McManus. Dr. Sawyer correctly noted there
were no x-ray reports that included actual measurements of patellofemoral joint space narrowing.
Although it is possible that Dr. McManus read appellant’s June 24, 2013 right knee x-ray and
personally measured the patellofemoral compartment cartilage interval, the source of his “2.3
mm” finding is not apparent from the evidence of record. Under the circumstances, Dr. Sawyer
reasonably questioned Dr. McManus’ impairment rating based on a diagnosis of patellofemoral
arthritis with a two mm cartilage interval.
The Board finds that Dr. Sawyer’s August 5, 2013 impairment rating conforms to the
A.M.A., Guides (6th ed. 2008) and represents the weight of the medical evidence regarding the
6

For complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

7

20 C.F.R. § 10.404.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).

3

extent of appellant’s right lower extremity impairment. Dr. Sawyer’s rating, which was based on
a diagnosis of patellofemoral arthritis with full-thickness articular cartilage defect, is supported
by the record. Furthermore, he concurred with Dr. McManus’ assignment of grade modifiers
and his net adjustment calculation.9 This resulted in a final rating of three percent right leg
impairment under Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 511 (6th ed. 2008).
Accordingly, the medical evidence of record does not establish right leg impairment greater than
three percent.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
Appellant has not demonstrated that he has greater than three percent impairment of the
right leg.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 2, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

See supra note 6.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, RICON STATION
POST OFFICE, Tucson, AZ, Employer
__________________________________________

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

Docket No. 21-1087
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On July 12, 2021 appellant, through counsel, filed a timely appeal from a June 1, 2021
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated May 6, 2021, which became final after 30 days of
issuance and is not subject to further review. 2 As there was no merit decision on the underlying
issue of suitable work by OWCP within 180 days of the filing of this appeal, 3 pursuant to the

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

20 C.F.R. § 501.6(d); see J.R., Docket No. 19-0364 (issued July 3, 2019); see A.F., Docket No. 18-0645 (issued
October 26, 2018).
3

Counsel did not appeal a March 25, 2021 OWCP merit decision, which denied appellant’s claim for a schedule
award. As counsel did not appeal from that decision, it is not presently before the Board. See 20 C.F.R. § 501.3.

Federal Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 5 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 8, 2016 appellant, then a 55-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a hand condition causally related to factors of her
federal employment, including repeated trauma caused by casing and carrying mail. OWCP
accepted the claim for right hand synovitis and tenosynovitis, and primary osteoarthritis of the
right hand. 6 It paid appellant wage-loss compensation on the supplemental rolls effective
October 29, 2016, and on the periodic rolls effective, April 2, 2017.
By decision dated October 3, 2019, OWCP terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits, effective October 3, 2019, based on her refusal of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It explained that Dr. Michael A. Steingart,
OWCP’s second opinion physician, an osteopathic physician specializing in sports medicine
provided a well-reasoned opinion as to appellant’s current work limitations and the employing
establishment had offered her a job within those restrictions.
On October 14, 2019 appellant requested reconsideration of the October 3, 2019 decision.
She resubmitted medical evidence previously of record, including a November 9, 2017 narrative
report and a November 5, 2017 work capacity evaluation (Form OWCP-5c) from Dr. John R.
Klein, a Board-certified orthopedic surgeon.
On December 13, 2019 OWCP thereafter received a copy of a July 9, 2019 report from
Dr. Amit Sahasrabudhe, a Board-certified orthopedic surgeon. This report was previously
received by OWCP on October 1, 2019 but was not reviewed in OWCP’s decision dated
October 3, 2019.7

4

5 U.S.C. § 8101 et seq.

5

Docket No. 20-0676 (issued May 6, 2021).

6

Appellant was diagnosed with a concurrent nonindustrial injury to include a degenerative full-thickness central
perforation tear of the triangular fibrocartilage articular disc (TFCC) and had a right wrist arthroscopy with TFCC
debridement on January 3, 2017.
7

Also on December 13, 2019, OWCP issued a final overpayment determination, finding that appellant received an
overpayment of compensation in the amount of $1,028.45, for which she was at fault, for the period October 3
through 12, 2019 as she continued to receive wage-loss compensation following the termination of her benefits.

2

In a progress report dated December 20, 2019, Dr. Mark A. Braunstein, a Board-certified
orthopedic surgeon, related that appellant was seen in follow-up after a right wrist arthroscopic
procedure. He related that appellant had returned to work and was experiencing wrist pain when
working with a scanner. Dr. Braunstein concluded that appellant was doing well, with continued
pain on the ulnar side of her right wrist. 8
Appellant appealed to the Board on February 6, 2020.
OWCP subsequently received copies of medical reports previously of record, including
March 28 and November 5, and 9, 2017 reports from Dr. Klein, a May 4, 2018 report from
Dr. Braunstein, and the July 9, 2019 report from Dr. Sahasrabudhe. It also received a February 7,
2020 work status form, bearing an illegible signature, which indicated that appellant could return
to work on February 8, 2020.
Counsel also forwarded to OWCP a July 8, 2020 permanent impairment evaluation report
from Dr. Mesfin Seyoum, a family medicine specialist. In a report dated September 16, 2020,
Dr. Nathan Hammel, a Board-certified orthopedic surgeon acting as an OWCP medical adviser,
reviewed the record including Dr. Seyoum’s July 8, 2020 permanent impairment report.
On March 25, 2021 OWCP received duplicate copies of reports from Dr. Klein dated
November 5, 2017, and reports of Dr. Steingart dated November 13, 2018 and April 15, 2019,
previously of record.9
By decision dated May 6, 2021, the Board affirmed the October 3, 2019 termination
decision, finding that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award beneﬁts, effective October 3, 2019, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).10
On May 14, 2021 appellant, through counsel, requested reconsideration of the October 3,
2019 termination decision.
By decision dated June 1, 2021, OWCP denied appellant’s May 14, 2021 request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right. 11 OWCP has discretionary authority in this regard and has imposed certain

8

On February 11, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule award.

9

Also on March 25, 2021 OWCP denied appellant’s February 11, 2020 schedule award claim. See supra note 3.

10

The Board also affirmed in part and reversed in part the December 13, 2019 overpayment determination. Supra
note 5.
11

This section provides in pertinent part: The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 12 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 13
Upon receipt of a timely application, OWCP exercises its discretion in accordance with the
guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which
provides that a claimant may obtain review of the merits of his or her written request for
reconsideration, including all supporting documents, sets forth arguments and contain evidence
which either: (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. 14 Section 10.608(b)
provides that any request for reconsideration of the merits of the claim which does not meet at
least one of the requirements listed in section 10.606(b) will be denied by OWCP without review
of the merits of the claim. 15
ANALYSIS
The Board finds that the case is not in posture for decision.
Following the October 3, 2019 OWCP decision which terminated appellant’s
compensation benefits for refusal of suitable work, OWCP continued to receive additional medical
evidence, including a December 20, 2019 progress report by Dr. Braunstein and a February 7,
2020 work status form. However, it did not review or address this evidence in the June 1, 2021
decision.16
In the case of William A. Couch,17 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that OWCP reviewed any of the medical evidence
submitted after the October 3, 2019 decision.18
As the Board’s decisions are final with regard to the subject matter appealed,19 it is crucial
that all evidence relevant to the subject matter of the claim, which was properly submitted to
12

20 C.F.R. § 10.607.

13

See J.R., supra note 2; C.C., Docket No. 18-0316 (issued March 14, 2019); id. at § 10.607(a).

14

Id. at § 10.606(b)(3).

15

Id. at § 10.608(b). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
16

See D.B., Docket No. 21-0693 (issued November 9, 2021).

17

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

18

See T.G., Docket No. 19-1930 (issued January 8, 2021).

19

See 20 C.F.R. § 501.6(d).

4

OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 20
Because OWCP failed to consider all of the medical evidence submitted by appellant, the Board
cannot review such evidence for the first time on appeal. 21
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record.22 Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.23
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

20

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 17.
21

20 C.F.R. § 501.2(c)(1). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

22

See M.J., Docket No. 18-0605 (issued April 12, 2019).

23

B.N., Docket No. 17-0787 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 1, 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

6


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

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

Docket No. 07-2291
Issued: February 26, 2008

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 31, 2007 appellant filed a timely appeal from the November 20, 2006 and
July 11, 2007 merit decisions of the Office of Workers’ Compensation Programs denying her
traumatic injury claim and the August 14, 2007 nonmerit decision denying her request for merit
review. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether appellant sustained a left shoulder injury while in the
performance of duty on May 23, 2006; and (2) whether the Office properly refused to reopen her
case for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 19, 2006 appellant, a 57-year-old casual clerk dispatcher, filed a traumatic injury
claim alleging that on May 23, 2006 she strained her back and left shoulder while throwing mail
into canvas buggies. In support of her claim, appellant submitted illegible physicians’ notes

signed by Dr. Phillip Shou, a Board-certified internist for the period May 11 through
June 6, 2006.
In a June 21, 2006 letter, the employing establishment controverted the claim. It
contended that on the date in question, appellant did not notify anyone in her office that she
sustained an injury and that she did not file her claim until after her employment was terminated
on June 7, 2006.
In a letter dated July 6, 2006, the Office informed appellant that the information
submitted was insufficient to establish her claim. It advised her to submit additional information,
including a detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to the cause of the diagnosed condition.
In a July 11, 2006 description of the alleged injury, appellant stated that, as she was
lifting and throwing a stack of marriage mail into buggies from the center of the floor, she “felt
like [she] had thrown [her] shoulder out.” She allegedly reported the incident to her supervisor,
Charisse Davis, immediately after the alleged injury. In an undated statement, appellant
indicated that Ms. Davis told her that she would “be alright.”
Appellant submitted a June 14, 2006 report of an x-ray of the cervical spine; a June 26,
2006 report of a magnetic resonance imaging (MRI) scan of the cervical spine; a June 26, 2006
report of an MRI scan of the left shoulder; and illegible treatment notes from Dr. Shou for the
period May 11 through June 25, 2006. On July 28, 2006 the Office again informed appellant
that, as she had failed to provide a physician’s rationalized opinion as to the cause of her claimed
condition, the information submitted was insufficient to establish her claim.
Appellant submitted notes from Dr. Shou for the period June 9 through July 7, 2006. On
June 9, 2006 Dr. Shou stated that she complained of left-sided neck and left shoulder pain
resulting from an injury at work the previous week. He diagnosed cervical strain and left
shoulder sprain. On June 21, 2006 Dr. Shou diagnosed persistent cervical pain; left shoulder
pain; and “probable cervical degenerative disc disease.” On July 5, 2006 he diagnosed cervical
radiculopathy, noting that appellant’s MRI scan revealed a mild, diffuse disc herniation at C6-7,
sloping to the left. The record contains records of physical therapy visits for the period July 7
through August 2, 2006.
By decision dated August 29, 2006, the Office denied appellant’s claim. It accepted that
the work event occurred as alleged, but found that the medical evidence failed to demonstrate
that the claimed medical condition was causally related to the established work event and was,
therefore, insufficient to establish that appellant had sustained an injury under the Federal
Employees’ Compensation Act on May 23, 2006.
The record contains an August 28, 2006 report of investigation from the employing
establishment’s Office of the Inspector General which concluded that there was no independent
evidence to support that appellant had suffered a work-related injury. In a July 28, 2006
memorandum of interview, Ms. Davis stated that appellant had not reported the alleged incident
to her on May 23, 2006 and that, in fact, she was not working on the date in question. She

2

indicated that she was not aware of any job-related injury regarding appellant until June 9, 2006,
two days after she was terminated.
Appellant submitted reports from Dr. Shou dated June 12, September 8 and 26, 2006. On
June 12, 2006 Dr. Shou diagnosed cervical strain and shoulder sprain. In a letter dated
September 8, 2006, he stated that he had examined appellant on June 9, 2006 for cervical strain
and left shoulder sprain after her work-related injury. Dr. Shou noted that he had been treating
appellant since October 15, 2003 and that she “did not complain of her neck pain radiating down
to her left shoulder prior to her alleged injury.” He concluded, therefore, that her conditions
were “caused or at least aggravated by her claimed injury.” In an October 12, 2006 report of a
follow-up examination, Dr. Shou again diagnosed left shoulder pain, noting that the date of
injury was May 23, 2006.
Appellant submitted reports dated August 28, 2006 from Dr. Praveer Srivastava, a Boardcertified orthopedic surgeon, who examined her on August 10 and 22, 2006. Dr. Srivastava
related the history of injury as described by appellant, stating that she had injured her left
shoulder on May 23, 2006 while lifting and throwing bundles of mail into carriers’ cases, when
appellant “felt a snap.” His August 10, 2006 examination revealed full active and passive range
of motion of the cervical spine with flexion and extension and right and left bending and rotation
to the right and left. Dr. Srivastava found no crepitus with range of motion. Appellant
demonstrated a tender trigger area over the left upper paraspinal region, close to the superior
angle of the scapula. Examination of the left shoulder showed no tenderness over the
acromioclavicular joint or other bony point. Neer’s sign was positive. Dr. Srivastava diagnosed
left shoulder pain probably with bursitis with impingement. In his report of the August 22, 2006
examination, Dr. Srivastava stated that appellant’s MRI scan was unremarkable, showing no
rotator cuff tear or labral lesions.
On September 6, 2006 appellant requested reconsideration of the August 29, 2006
decision.
In a statement dated July 17, 2006, Latisha Davis, a coworker, indicated that on May 23,
2006 she helped appellant lift the larger, heavier packages because “[appellant] had hurt her
back/shoulder that morning.” She stated that “management knew that appellant hurt her back, as
a matter of fact, almost everyone in the employing establishment knew she had hurt her back.”
Appellant submitted physical therapy notes dated September 11, 2006 from Paul C.
Bryant, an October 12, 2006 report from Dr. Srivastava who diagnosed left arm pain and left
shoulder pain; an undated narrative statement in which she contended that she had been hindered
in her attempt to obtain a claim form.
By decision dated November 20, 2006, the Office denied modification of its August 29,
2006 decision finding that there was no medical evidence demonstrating a causal connection
between the established incident and appellant’s diagnosed condition. It stated that Dr. Shou’s
September 8, 2006 report was not well rationalized and was speculative in nature.
On December 8, 2006 appellant again requested reconsideration. In support of her
request, she submitted a July 18, 2006 witness statement from coworker, Christine Foltyn, who

3

indicated that appellant injured her back on May 23, 2006; September 14, 2005 laboratory test
results; and copies of numerous documents that were previously provided and reviewed by the
Office. On May 22 and 23, 2007 Charisse Davis denied appellant’s claim that she reported the
alleged injury to her on May 23, 2006 stating that she was on annual leave on the date in
question. Ms. Davis provided “clock rings” for the period May 22 through 25, 2006 which she
contended proved that she was not at work on May 23, 2006.
By decision dated July 11, 2007, the Office denied modification of its November 20,
2006 decision. It found that the evidence failed to establish a causal relationship between the
established incident and appellant’s diagnosed condition.
On July 17, 2007 appellant requested reconsideration of the July 11, 2007 decision. She
contended that the numerous medical reports and witness statements she had submitted were
sufficient to establish her claim and that she should be compensated for all the pain and suffering
that resulted from her May 23, 2006 injury.
By decision dated August 14, 2007, the Office denied appellant’s request for
reconsideration. It found that, as appellant had failed to raise a substantial legal question or
include new and relevant evidence, her request did not warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
The Act provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.1 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that 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.3 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the

1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947). 5 U.S.C. § 8102(a).
3

Robert Broome, 55 ECAB 339 (2004).

4

time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant was a federal employee, that she timely filed her claim
for compensation benefits and that the May 23, 2006 workplace incident occurred as alleged.
The issue, therefore, is whether appellant has submitted sufficient medical evidence to establish
that the employment incident caused an injury. Medical evidence submitted by her consisted of
reports from Dr. Shoe and Dr. Srivastava, reports of MRI scans, x-rays and other laboratory tests
and physical therapy notes. None of these reports constitutes probative medical evidence.
Dr. Shou’s reports and treatment notes for the period May 11 through October 12, 2006
reflect that he treated appellant for cervical and left shoulder pain. On June 9, 2006 Dr. Shou
diagnosed cervical strain and left shoulder sprain, noting that appellant complained of left-sided
neck and left shoulder pain which was allegedly due to a work injury. On June 21, 2006 he
diagnosed persistent cervical pain; left shoulder pain; and “probable cervical [degenerative disc
4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Id.

8

20 C.F.R. § 10.303(a).

9

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

5

disease].” On July 5, 2006 Dr. Shou diagnosed cervical radiculopathy noting that appellant’s
MRI scan revealed a mild, diffuse disc herniation at C6-7, sloping to the left. On October 12,
2006 he diagnosed left shoulder pain. None of these reports contained an opinion as to the cause
of appellant’s diagnosed condition. The Board has long held that medical evidence which does
not offer an opinion regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.10 On September 8, 2006 Dr Shou opined that appellant’s
cervical strain and left shoulder sprain were “caused or at least aggravated by her claimed
injury.” However, his unrationalized opinion is insufficient to establish a causal relationship
between the May 23, 2006 incident and appellant’s claimed condition. Dr. Shou did not provide
a complete factual and medical background of the claimant and did not explain how the
established incident caused or aggravated appellant’s condition.11 His observation that he had
been treating appellant since October 15, 2003 and that she “did not complain of her neck pain
radiating down to her left shoulder prior to her alleged injury” is insufficient to establish causal
relationship.12 Further, Dr. Shou’s opinion was speculative in nature. His report is, therefore, of
diminished probative value.
Reports from Dr. Srivastava are also insufficient to establish appellant’s claim. As none
of his reports contain an opinion regarding the cause of appellant’s condition, they are of limited
probative value on the issue of causal relationship.13 The Board notes that Dr. Srivastava’s
description of the incident as described by appellant, does not constitute an opinion by him as to
the cause of her condition. Additionally, Dr. Srivastava’s speculative diagnosis of “left shoulder
pain, probably with bursitis with impingement” is not a basis for payment for compensation.
The record does not contain an opinion by any qualified physician supporting appellant’s
contention that her neck and left shoulder condition was causally related to the accepted
employment incident. While she has submitted chart notes and other medical documents which
track her treatment, she has not provided a narrative report containing a physician’s rationalized
opinion on whether there is a causal relationship between her condition and the established
May 23, 2006 work incident. The Board notes that appellant submitted notes and reports signed
by a physical therapist. As these reports were not signed by individuals that qualify as
“physicians” under the Act, the Board finds that they do not constitute probative medical

10

A.D., 58 ECAB ___ Docket No. 06-1183 (issued November 14, 2006); Michael E. Smith, 50 ECAB
313 (1999). The Board has also held that a diagnosis of pain does not constitute a basis of payment for
compensation, as pain is considered to be a symptom rather than a specific diagnosis. Robert Broome, supra note 3.
11

John W. Montoya, supra note 9.

12

The Board has held that the mere fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two. See Joe T. Williams, 44 ECAB 518,
521 (1993).
13

See supra note10.

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evidence.14 Reports of x-rays, MRI scans and other medical tests which do not contain an
opinion as to the cause of appellant’s condition, are of limited probative value for reasons stated
above and are insufficient to establish appellant’s claim.
Appellant expressed her belief that her cervical and left shoulder condition resulted from
the May 23, 2006 employment incident. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.15 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused or aggravated by employment
factors or incidents, is sufficient to establish causal relationship.16 Causal relationship must be
substantiated by reasoned medical opinion evidence which it is appellant’s responsibility to
submit. Therefore, her belief that her condition was caused by the work-related incident is not
determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how her claimed left shoulder and neck conditions
were caused or aggravated by her employment, appellant has not met her burden of proof in
establishing that she sustained an injury in the performance of duty causally related to factors of
her federal employment.
LEGAL PRECEDENT -- ISSUE 2
Under Section 8128(a) of the Federal Employees’ Compensation Act,17 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,18 which provides that a claimant may obtain review of the merits of his or her
written application for reconsideration, including all supporting documents, sets forth arguments
and contain evidence that:
(i) Shows that the Office erroneously applied or interpreted a specific point of
law; or

14

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of the Act
provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J.
Sills, 39 ECAB 572, 575 (1988).
15

See Joe T. Williams, supra note 12.

16

Id.

17

5 U.S.C. § 8101-8193.

18

20 C.F.R. § 10.606(b).

7

(ii) Advances a relevant legal argument not previously considered by the Office;
or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
the Office.
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.19
Evidence that repeats or duplicates evidence already in the case record has no evidentiary
value and does not constitute a basis for reopening a case.20
ANALYSIS -- ISSUE 2
Appellant’s July 17, 2007 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Appellant
merely reiterated her contention that the evidence of record established her claim. Consequently,
she is not entitled to a review of the merits of her claim based on the first and second abovenoted requirements under section 10.606(b)(2). As appellant submitted no additional factual or
medical evidence in support of her request for reconsideration, she also failed to satisfy the third
requirement of section 10.606(b).
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her July 17, 2007 request for reconsideration.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on May 23, 2006. It also finds that the
Office properly refused to reopen appellant’s case for further review of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

19

Id

20

See Helen E. Paglinawan, 51 ECAB 591 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 14 and July 11, 2007 and November 20, 2006 are
affirmed.
Issued: February 26, 2008
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Portland, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1313
Issued: January 15, 2010

Case Submitted on the Record

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

JURISDICTION
On April 22, 2009 appellant, through her representative, filed a timely appeal from the
March 12, 2009 merit decision of the Office of Workers’ Compensation Programs, which
affirmed the termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits.
FACTUAL HISTORY
On July 15, 2003 appellant, then a 28-year-old security screener, filed a claim for
compensation alleging that she developed back, foot and ankle conditions as a result of her
federal duties. The Office accepted her claim for aggravation of posterior tibial tendon
dysfunction (flat feet) and upper back strain. Appellant underwent a flat foot reconstruction on

the right on November 30, 2004 and received compensation for temporary total disability on the
periodic rolls.
The Office referred appellant, together with a copy of the medical record and a statement
of accepted facts, to Dr. E. Robert Wells, a Board-certified orthopedic surgeon, for an opinion on
continuing residuals of the accepted medical conditions and current work restrictions.
On March 6, 2008 Dr. Wells reviewed the statement of accepted facts, appellant’s chief
complaints and her history of present illness. He also reviewed appellant’s extensive medical
record. Dr. Wells described his findings on physical examination and diagnosed the following:
(1) pronated pes planus bilaterally, preexisting, congenital -- temporarily aggravated by job
activities, left greater than right so far as aggravation; (2) posterior tibial tendon dysfunction,
bilaterally -- secondary to (1) and temporarily job aggravated; (3) status post right gastrocnemius
recession, right os calcis medial displacement osteotomy, right cuneiform plantar flexion
osteotomy, and right flexor tendon transfer to the tarsonavicular -- secondary to (1);
(4) thoracolumbar strain/sprain syndrome, preexisting -- temporarily job aggravated; and
(5) exogenous obesity and deconditioning. He addressed the Office’s questions. Dr. Wells
noted that the diagnoses were established, but there was no objective evidence of anything other
than soft tissue injuries so far as the spine was concerned. On the issue of continuing residuals,
he stated as follows:
“From a medical standpoint, strains and sprains are temporary conditions that
usually resolve in a reasonable period, particularly with corrective treatment.
This usually takes from weeks to months, and it should be noted that [appellant]
was labeled as stationary after a consistent period of work hardening on the
[April 21, 2004]. Though she continues to indicate the presence of symptoms
referable to this area intermittently, these complaints are subjective and not
confirmed by the presence of significant reproducible objective findings other
than mild local tenderness. As a consequence, based on the [s]tatement of
[a]ccepted [f]acts, these would be considered temporary aggravations.
“As noted, the foot and ankle that was initially symptomatic and most severe
during the period of employment with the [employing establishment] is the left
one which has not been surgically addressed. It continues to be somewhat more
symptomatic than the right, but as noted above, this is a congenital condition,
preexisting, and likewise is considered to be temporarily aggravated by
[appellant’s] employment with the [employing establishment]. Also noted is the
condition in regard to the operated right foot and ankle which has been previously
assessed and stated to be stable and closed effective January 30, 2006, by the
operating surgeon, Dr. Richard Gellman.”
Dr. Wells completed a work capacity evaluation but noted that the restrictions were deemed
secondary to preexisting conditions, as her spinal condition was declared stable and ratable as of
April 21, 2004 and as the foot condition was listed as stable and ratable as of January 30, 2006.
In a decision dated May 5, 2008, the Office terminated appellant’s compensation
benefits. It found that Dr. Wells’ opinion represented the weight of the medical evidence and

2

established that she no longer had disability or work restrictions as a result of her employment
injury.
On March 12, 2009 an Office hearing representative affirmed the May 5, 2008 decision.
She found that Dr. Wells’ opinion was thorough, well reasoned and clearly supported that the
accepted back strain and aggravation of appellant’s foot condition had resolved.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.1 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.3
ANALYSIS
Having accepted appellant’s claim for compensation, the Office has the burden of proof
to justify its termination of benefits. It relied on the March 6, 2008 opinion of Dr. Wells, a
Board-certified orthopedic surgeon and Office referral physician. The Office provided Dr. Wells
with a statement of accepted facts and a copy of appellant’s medical record so he could base his
opinion on a proper factual and medical background. Dr. Wells thoroughly reviewed those
documents. He also examined appellant. Dr. Wells related her complaints and described his
clinical findings.
Dr. Wells concluded that appellant no longer continued to suffer residuals of the accepted
back sprain. He explained as a general matter that strains and sprains are temporary conditions
that usually resolve in a reasonable period of time, from weeks to months and, in appellant’s
particular case, she was found to be stationary after a consistent period of work hardening on
April 21, 2004. Further, although appellant continued to indicate symptoms referable to that
area, her complaints were subjective and not confirmed by the presence of significant
reproducible objective findings other than mild local tenderness.
Dr. Wells also concluded that appellant no longer continued to suffer from the accepted
temporary aggravation of her bilateral posterior tibial tendon dysfunction (flat feet). He
explained that this was a congenital, preexisting condition only temporarily aggravated by her
employment (years earlier) as a security screener. Dr. Wells noted that the left was initially
symptomatic and most severe during the period of her employment. Currently, it continued to be
somewhat more symptomatic than the right, which was surgically reconstructed and assessed to
be stable effective January 30, 2006. Although he imposed physical limitations, Dr. Wells made
1

5 U.S.C. § 8102(a).

2

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

3

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

3

clear that they were secondary to appellant’s preexisting conditions, not to her accepted
employment injury.
The Board finds that Dr. Wells’ opinion is based on a proper factual and medical history
and is sufficiently well rationalized that it justifies the Office’s termination of compensation for
the accepted upper back strain and aggravation of flat feet. There is no medical opinion to the
contrary. For these reasons, the Board finds that the Office has met its burden of proof to justify
its termination of compensation benefits. The Board will affirm the Office hearing
representative’s March 12, 2009 decision.
CONCLUSION
The Board finds that the Office has met its burden of proof to justify the termination of
appellant’s compensation benefits. The weight of the medical opinion evidence establishes that
the accepted medical conditions have resolved.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4