United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
GEOLOGICAL INTELLIGENCE AGENCY,
Bethesda, MD, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-723
Issued: December 16, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
On January 28, 2011 appellant, through her attorney, filed a timely appeal from an
August 5, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying modification of a May 20, 2009 decision terminating her wage-loss compensation. The
Board docketed the appeal as No. 11-723.
On April 7, 2009 OWCP proposed to terminate appellant’s wage-loss benefits. On
May 8, 2009 it received an April 20, 2009 signed statement from appellant designating
Thomas S. Harkins, Esquire, to represent her in proceedings before OWCP. In a May 4, 2009
letter, Mr. Harkins presented arguments that the April 7, 2009 proposed termination was contrary
to the medical evidence of file and law. In a May 13, 2009 letter, OWCP acknowledged
counsel’s representation of appellant.
On May 19, 2009 OWCP received a May 15, 2009 letter from appellant’s attorney which
noted that he previously responded to the notice of proposed termination in a May 4, 2009 letter.
Counsel argued that the proposed termination of appellant’s compensation benefits was improper
and submitted a May 7, 2009 report from Dr. Nelson Henry, a Board-certified family
practitioner. In his May 7, 2009 report, Dr. Henry diagnosed lumbar radiculopathy, cervical
radiculopathy sacroiliitis, which he opined were all work related. He further opined that
appellant was totally disabled from March 20, 2007 to February 16, 2010.

By decision dated May 20, 2009, OWCP terminated appellant’s wage-loss compensation
effective May 11, 2009 finding that the weight of the medical evidence established that she could
return to her date-of-injury position. It did not send a copy of the decision to appellant’s
attorney. The decision stated that no additional evidence or argument was submitted in response
to the proposed termination. In a May 14, 2010 letter, appellant’s attorney requested
reconsideration. He asserted that the termination decision should be nullified as OWCP did not
consider his arguments and evidence in response to the proposed termination and OWCP failed
to send him a copy of the termination decision. In an August 5, 2010 decision, OWCP denied
modification of its previous decision. A copy of the decision was sent to appellant’s attorney.
OWCP regulations and Board precedent require OWCP to send a copy of its decision to
the claimant’s authorized representative.1 The Board has held that a decision under the Federal
Employees’ Compensation Act2 is not properly issued unless both appellant and the authorized
representative have been sent copies of the decision.3 As the May 20, 2009 termination decision
was not sent to appellant’s attorney, the decision was not properly issued. The Board will set
aside the August 5, 2010 decision and remand the case for issuance of an appropriate merit
decision on the subject matter of the case for May 20, 2009 decision which will be sent to
appellant and her authorized attorney.4

1

See 20 C.F.R. § 10.127. The Board held in Travis L. Chambers, 55 ECAB 138 (2003) that section 10.127
requires that a copy of an OWCP decision be sent to the authorized representative. In George R. Bryant, Docket No.
03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision when
it did not send a copy of that decision to the authorized representative on that date; the Director of OWCP conceded
a procedural error and advised that a merit review would be provided on remand to preserve the claimant’s appeal
rights.
2

5 U.S.C. § 8101 et seq.

3

See Travis L. Chambers, supra note 1.

4

The Board also notes that OWCP did not consider all of the evidence properly before it prior to issuing the
May 20, 2009 decision. See William A. Couch, 41 ECAB 548 (1990) (when adjudicating a claim, OWCP is obligated
to consider all evidence properly submitted by appellant and received by OWCP before the final decision is issued).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2010 is set aside and the case remanded for further
proceedings consistent with this order.
Issued: December 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


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

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

Docket No. 17-0213
Issued: July 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 3, 2016 appellant filed a timely appeal from a July 7, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated February 18, 2014 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) an 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board pursuant to the Board’s Rules of Procedure, 20
C.F.R. § 501.5(b). After exercising its discretion, by order dated May 8, 2017, the Board denied the request for oral
argument as the issue on appeal could be fully addressed on the record. Order Denying Request for Oral Argument,
Docket No. 17-0213 (issued May 8, 2017).

FACTUAL HISTORY
On February 23, 2012 appellant, then a 63-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she suffered an injury to her left shoulder and rotator
cuff as a result of sweeping bins of letters into trays while working the all-purpose container
(APC) machine eight hours a day during Christmas season. On March 7, 2012 OWCP accepted
appellant’s claim for left supraspinatus tear and left bicipital tenosynovitis. Appellant received
wage-loss compensation and medical benefits on the periodic rolls as of May 6, 2012.
On April 19, 2012 Dr. Rena Amro, a Board-certified orthopedic surgeon, performed
authorized arthroscopy of the left shoulder, Bakart repair, superior labrum anterior and posterior
debridement, removal of loose body, extensive synovectomy, glenoid debridement subacromial
decompression, distal clavicle resection, arthroscopic rotator cuff repair, and coracoacromial
ligament release.
Dr. Amro continued to submit medical reports documenting appellant’s progress. In a
November 14, 2012 report, she diagnosed left shoulder pain, left biceps tenosynovitis,
supraspinatus articular surface partial tear, acromioclavicular arthropathy, and right shoulder
pain. Dr. Amro prescribed medication, therapy, and activity restrictions. Under a section
labeled “Plan,” she noted that she discussed activity restrictions at length with appellant, but also
noted a plan to return to work with no restrictions four hours a day.
On November 16, 2012 OWCP referred appellant to Dr. Peter J. Millheiser, a Boardcertified orthopedic surgeon, for a second opinion regarding appellant’s disability status.
Dr. Millheiser submitted a December 3, 2012 report, a work capacity evaluation dated
December 19, 2012, and an addendum report dated May 10, 2013. He discussed his
December 3, 2012 examination of appellant and reviewed appellant’s medical record. In a
December 19, 2012 work capacity evaluation, Dr. Millheiser indicated that appellant had
permanent restrictions of four hours of pushing and lifting 10 pounds and no pulling.
On July 17, 2013 OWCP sent Dr. Amro a copy of the reports of Dr. Millheiser and asked
for comments. Dr. Amro did not respond.
On August 12, 2013 the employing establishment offered appellant a position as a
modified full-time mail handler. The position included restrictions of no pulling, pushing, or
lifting more than 10 pounds for four hours a day. OWCP reviewed the job offer and found it in
accordance with the limitations set forth by Dr. Millheiser on December 19, 2012. In a
memorandum to file dated August 29, 2013, it indicated that the weight of the medical evidence
rested with the December 3, 2012 opinion of Dr. Millheiser.
By letter dated December 19, 2013, OWCP determined that the weight of the evidence
indicated that the offered position was suitable and gave appellant 30 days to accept the job
without penalty. It noted that, if appellant failed to accept position, she must provide a written
explanation of reasons within the allotted time period.
On January 14, 2014 appellant refused the job offer and indicated “retired injured.”

2

On January 27, 2014 OWCP informed appellant that her reason for not accepting the job
was not valid and that she had 15 additional days to accept and report to the position.
A telephone memorandum of February 3, 2014 documents that appellant advised OWCP
that she had retired as of August 31, 2012 and had received a buy-out. Appellant also noted that
she had requested an election of Office of Personnel Management (OPM) benefits.
On February 18, 2014 OWCP terminated appellant’s entitlement to wage loss and any
schedule award effective February 18, 2014 for refusal of suitable work, pursuant to 5 U.S.C.
§ 8106(c)(2). It noted that this decision did not affect appellant’s entitlement to medical benefits.
Appellant requested a hearing before an OWCP hearing representative on
December 4, 2015. In a December 1, 2015 statement, she disagreed with the decision on her
claim. Appellant argued that Dr. Millheiser’s opinion was not entitled to weight as he did not
have a full and accurate history, that appellant had been seen by him only once, and that her
physicians’ reports were overlooked. She further argued that, even with maximum medical
improvement, she would be unable to effectively and safely do any job due to limitations of
movement, pain, and strong pain killers which kept her from efficiently doing the most basic of
tasks. Appellant also argued that working would aggravate her injury and pose a danger to
herself and others.
By decision dated December 30, 2015, OWCP denied appellant’s request for hearing as
untimely filed. It also exercised it discretion and informed her that the issue in the case could
equally well be addressed by a request for reconsideration.
On June 20, 2016 appellant requested reconsideration of the February 18, 2014 decision
based on “reasonable color of validity.” In an accompanying note dated June 17, 2016, she
argued that she was 64 years old and that her surgeon had not released her to return to work until
April 30, 2014. In an additional statement received by OWCP on June 21, 2016, appellant
argued that the medical evidence in the record documented that her condition had worsened since
the compensable injury, and that she was disabled.
OWCP continued to receive reports, dated from February 11, 2014 through October 12,
2015, from Dr. Graham F. Whitfield, an orthopedic surgeon and a colleague of Dr. Amro. In a
February 11, 2014 report, Dr. Whitfield diagnosed arthralgia of the left shoulder with
acromioclavicular joint arthralgia, biceps tendinitis, subacromial bursitis, supraspinatus,
infraspinatus, subscapularis tendinitis, and cervical paraspinal muscle spasm. He discussed
treatment options with appellant. In an October 12, 2015 report, Dr. Whitfield provided a
permanent impairment rating of 12 percent of the left upper extremity. The record also includes
multiple unsigned notes from by Dr. Amro. Finally, work capacity evaluations dated from
March 10 through September 8, 2014 from Dr. Amro indicate that appellant could work full time
with restrictions limited to three hours per day of standing and five hours a day of walking.
By decision dated July 7, 2016, OWCP denied appellant’s reconsideration request as it
was untimely filed and failed to demonstrate clear evidence of error.

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LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received by OWCP within one year of the date of that
decision.3 The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4 The
one-year period begins on the date of the original decision. However, a right to reconsideration
within one year accompanies any subsequent merit decision on the issues. This includes any
hearing or review of the written record decision, any denial of modification following
reconsideration, any merit decision by the Board, and any merit decision following action by the
Board.5
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, OWCP must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.6 OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case
for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review demonstrates clear evidence of error on the
part of OWCP.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.8 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.10 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.11 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.12 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

6

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

7

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5
(February 2016).
8

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

9

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

10

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

11

Supra note 9.

12

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

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probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP decision.13
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits as her request for reconsideration was untimely filed and failed to
demonstrate clear evidence of error.
As previously noted, the Board does not have jurisdiction over the last merit decision
issued on February 18, 2014. The only decision over which the Board has jurisdiction is the
July 7, 2016 nonmerit decision wherein OWCP denied reconsideration as appellant’s request was
untimely filed and failed to demonstrate clear evidence of error.14 As more than one year
elapsed between the last merit decision issued on February 18, 2014 and appellant’s June 20,
2016 request for reconsideration, the Board finds that appellant’s request for reconsideration was
untimely filed.15 As an untimely reconsideration request, appellant must demonstrate clear
evidence of error by OWCP in order to receive a merit review of the claim.16
The Board finds that none of the evidence submitted since the last merit review
demonstrates clear evidence of error. On February 18, 2014 OWCP terminated appellant’s
compensation after she failed to accept an offer of suitable employment. Appellant submitted
reports of Dr. Whitfield and the work capacity evaluations of Dr. Amro. These reports, however,
do not demonstrate clear error in as they do not establish that OWCP committed an error in
denying appellant’s claim, nor do they raise a substantial question as to the correctness of
OWCP’s decision.17
Furthermore, appellant’s arguments on reconsideration failed to demonstrate clear
evidence of error. She contends that she is entitled to review due to “color of validity” as noted
in the procedure manual. Appellant appears to be referring to the section of the manual which
indicates that, in timely applications for reconsideration, reopening the claim for further review
on the merits is not required where “the legal contention does not have a reasonable color of
validity.”18 However, as previously noted, appellant did not file a timely request for
reconsideration. The Board notes that clear evidence of error is intended to represent a difficult
standard.19 Finally, appellant alleged that she could not work due to her age. However, the
13

Leon D. Faidley, Jr., supra note 4.

14

See 20 C.F.R. § 501.3(e); see also R.R., Docket No. 14-151 (issued March 25, 2014).

15

20 C.F.R. § 10.607(a).

16

N.C., Docket No. 17/0157 (issued April 24, 2017).

17

Supra note 13.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Timely Applications, Chapter
2.1602.6(a)(2) (October 2011).
19

S.R., Docket No. 17-0271 (issued April 24, 2017).

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intent of FECA is to return an injured employee to gainful employment; it is not a retirement
program.20
As the evidence presented by appellant since the last merit decision does not raise a
substantial question concerning the correctness of OWCP’s decision, OWCP properly
determined that appellant did not demonstrate clear evidence of error in that decision.21
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2016 is affirmed.
Issued: July 7, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

F.C., Docket No. 14-0560 (issued November 12, 2015).

21

Supra note 13.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF THE ARMY, ROCK
ISLAND ARSENAL, Rock Island, IL, Employer
__________________________________________

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

Docket No. 09-319
Issued: November 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 13, 2008 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated November 4, 2008 terminating her
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation and
medical benefits effective May 18, 2005 on the grounds that she no longer had any residuals of
her accepted employment-related injury; (2) whether appellant had any continuing
employment-related residuals or disability after May 18, 2005; and (3) whether appellant met her
burden of proof to establish that she had any additional conditions causally related to the
accepted October 25, 1995 injury.

FACTUAL HISTORY
This is the second time this case has been before the Board. In a decision dated
September 11, 2001, the Board reversed the Office’s September 7, 1999 decision denying
appellant’s emotional condition claim. The Board found that appellant had established a
compensable factor of employment, namely that her supervisor, Jan Wards, had acted in an
abusive manner on October 25, 1995 when she told appellant that she would be fired if she failed
to verify a voucher. The Board remanded the case for development of the medical evidence.
The facts and the law contained in the Board’s September 11, 2001 decision are incorporated
herein by reference.1
On October 12, 2001 the Office accepted appellant’s claim for a brief depressive
disorder.2
On February 24, 2003 appellant submitted a claim for compensation from October 25,
1995 and continuing. The record reflects that she elected disability retirement effective
May 1, 1996.
The Office referred appellant to Dr. William Hitch, a neuropsychologist, for a second
opinion evaluation. Dr. Hitch was asked to provide an opinion as to whether appellant’s acute
adjustment disorder or brief depressive reaction continued and whether her preexisting,
underlying fibromyalgia and chronic fatigue syndrome were aggravated by the accepted
October 25, 1995 work incident. In a February 16, 2005 report, he compared current
neuropsychological test results with those obtained in 1995 and opined that she did not have a
progressive dementing illness. Dr. Hitch stated that many of her scores were clustered solidly
within normal limits and at times considerably above that. He indicated that any neurocognitive
concerns were probably secondary to appellant’s history of fibromyalgia and chronic fatigue
syndrome, particularly since both of these disorders typically present, neurocognitively, with
difficulties in memory, speed of processing and concentration. Dr. Hitch stated that he was
unable to provide an opinion as to whether appellant continued to experience residuals of these
diagnosed conditions or whether her preexisting, underlying fibromyalgia and chronic fatigue
syndrome were aggravated by the accepted work incident, because such a determination was
outside of his area of expertise.
The Office referred appellant to Dr. Bruce A. Heyl, Board-certified in the areas of
psychiatry and neurology, for another second opinion evaluation. In a report dated May 18,
2005, Dr. Heyl provided a history of injury and treatment and indicated that he had reviewed the
entire medical record. His examination of appellant revealed an excellent memory of events,
1

Docket No. 00-795 (issued September 11, 2001).

2

The Office initially accepted appellant’s claim on March 6, 1996 for an acute adjustment disorder and brief
depressive reaction. In a November 20, 1996 decision, it rescinded its acceptance. On May 22, 1997 the Office
denied appellant’s claim on the grounds that she had failed to identify a compensable factor of employment. On
July 17, 1998 an Office hearing representative affirmed the Office’s May 22, 1009 decision and on September 7,
1999 the Office denied modification of its previous decision. On September 11, 2001 the Board reversed the
September 7, 1999 decision, finding that the Office failed to meet its burden of proof to rescind its prior acceptance
of appellant’s emotional condition claim.

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times and places in her medical history. Dr. Heyl found her to be of above-average intelligence
and there was no evidence of loosened thought associations or delusional thought content.
Appellant seemed in no particular distress. Dr. Heyl diagnosed acute adjustment disorder/brief
depressive reaction, associated with the October 25, 2005 incident. He specified that this
disorder was related in time and circumstance to appellant’s employment injury of 1995 and had
no continuing impact on her present state of mental health. Dr. Heyl also diagnosed chronic
somatization disorder, which he indicated predated the 1995 work incident; personality disorder;
and myasthenia gravis, fibromyalgia, chronic fatigue syndrome, hypothyroidism and borderline
diabetes mellitus, by medical history. He opined that appellant did not have a work-related
emotional disorder. Dr. Heyl stated that she continued with disabled health and was entrenched
in her pattern of disabled adjustment, with limited motivation to undertake serious rehabilitative
efforts.
By decision dated July 26, 2006, the Office terminated appellant’s compensation and
medical benefits effective May 18, 2005. It found that the weight of the medical evidence,
which was represented by Dr. Heyl’s second opinion report, established that she no longer had
any disability or residuals causally related to her accepted injury. In a separate letter dated
July 26, 2006, the Office informed appellant that she was entitled to compensation for specific
dates between May 1, 1996 and May 18, 2005, based on temporary total disability, in the total
amount of $360,738.97.
On July 7, 2007 appellant requested reconsideration of the Office’s termination of
benefits. She objected to the diagnosis of brief depressive disorder, rather than post-traumatic
stress disorder (PTSD). Appellant also asked that the accepted conditions be expanded to
include aggravation of her preexisting fibromyalgia and spinocerebellar syndrome.
Appellant submitted a June 26, 2007 report from Dr. Diana D. Banks, Board-certified in
the areas of psychiatry and neurology, who stated that she had been treating appellant since
October 24, 1994. Dr. Banks opined that the October 25, 1995 work incident aggravated
appellant’s preexisting fibromyalgia and spinocerebellar syndrome. She indicated that her
examination of appellant one month after the accepted incident revealed increased pain, lower
extremity weakness and slowing speech and decline in ability to concentrate. Dr. Banks opined
that appellant continued to exhibit those symptoms.
On August 8, 2007 the Office denied modification of its July 26, 2006 decision. It found
that Dr. Banks’ report failed to explain how specific work factors aggravated any specific
diagnosed conditions.3
On August 4, 2008 appellant again requested reconsideration. She again asked the Office
to expand her claim to include PTSD, as well as aggravation of the previously identified
preexisting conditions.

3

The claims examiner noted that appellant had filed previous claims with the Office, including:
File No. xxxxxx924 (December 1, 1994) for back, neck and head injuries, which was denied on May 14, 1996;
File No. xxxxxx932 (December 12, 1992) for a minor injury, with no loss of work; and File No xxxxxx681
(March 31, 1988), which was accepted for left shoulder strain.

3

Appellant submitted a July 29, 2008 report from Dr. James W. Opoien, a Board-certified
family practitioner, who first treated her on March 10, 1998. After reviewing the medical and
factual history, Dr. Opoien opined that her preexisting conditions of fibromyalgia, chronic
fatigue syndrome and neuromuscular/spinocerebellar syndrome were aggravated by the
October 25, 1995 work incident. He stated that appellant had not recuperated sufficiently to
return to work status and that she continued to exhibit symptoms of pain, weakness, dysphagia,
dyspnea, gait instability and cognitive dysfunction, which were exacerbated by the accepted
work incident.
In an undated report, Dr. William L. Camp, a clinical psychologist, diagnosed adjustment
disorder and depressed mood, exacerbated by PTSD. He also diagnosed myasthenia gravis;
fibromyalgia; chronic fatigue syndrome; hypothyroidism and borderline diabetes mellitus.
Dr. Camp opined that the October 25, 1995 employment incident resulted in an emotional
breakdown, which led to an aggravation of her preexisting physical and neurological conditions
and the development of PTSD. He also opined that appellant continued to experience symptoms
related to the incident.
In a letter dated September 18, 2008, Dr. William Candler, an employing establishment
physician, opined that there was no causal relationship between the accepted October 25, 2005
work incident and appellant’s current medical condition. He also stated that there was no clinical
evidence of PTSD and that it was medically implausible that a single stressful event accelerated
her multiple medical conditions. Dr. Candler based his opinion on a review of Dr. Heyl’s
May 18, 2005 report.
By decision dated November 4, 2008, the Office denied modification of its August 8,
2007 decision. It found that the evidence was insufficient to refute Dr. Heyl’s well-reasoned
opinion, which constituted the weight of the medical evidence and that appellant failed to submit
rationalized medical evidence establishing residuals subsequent to May 18, 2005.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.4 After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.5
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.7 To terminate authorization for medical treatment,
4

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

5

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007).

6

See Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007).

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the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.8
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden to terminate appellant’s medical and
compensation benefits effective May 18, 2005.
Following the Board’s September 11, 2001 decision, the Office accepted appellant’s
claim for a brief depressive disorder. In early 2005, it referred her to Dr. Heyl for an
examination and an opinion as to whether she had any disability or residuals due to the accepted
injury.9 Dr. Heyl reviewed the entire record and statement of accepted facts and performed a
thorough examination of appellant. He found that she had an excellent memory of events, times
and places in her medical history. Dr. Heyl found her to be of above-average intelligence, with
no evidence of loosened thought associations or delusional thought content. Appellant seemed in
no particular distress. Dr. Heyl diagnosed acute adjustment disorder/brief depressive reaction,
associated with the October 25, 1995 incident. He specified that this disorder was related in time
and circumstance to appellant’s employment of 1995 and had no continuing impact on her
present state of mental health. Dr. Heyl also diagnosed chronic somatization disorder, which he
indicated predated the 1995 work incident; personality disorder; and myasthenia gravis,
fibromyalgia, chronic fatigue syndrome, hypothyroidism and borderline diabetes mellitus, by
medical history. He opined that appellant did not have a work-related emotional disorder. The
Board finds that Dr. Heyl’s well-rationalized report, which was based upon a proper factual and
medical background, represents the weight of the medical evidence and establishes that appellant
was no longer disabled and had no residuals from her accepted injury as of May 18, 2005.
Appellant did not submit any rationalized medical evidence to overcome the weight of
Dr. Heyl’s opinion or to create a conflict. In fact, she did not submit any medical evidence
between the date of the Board’s September 11, 2001 decision and the Office’s August 8, 2007
termination decision. The weight of the medical evidence establishes that appellant was no
longer disabled as a result of her accepted conditions and had no injury-related residuals.
On appeal, appellant’s representative argues that the decision terminating her benefits
was contrary to fact and law. For reasons stated herein, the Board finds this argument to be
without merit.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability or residuals causally related to her

8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

The Board notes that the Office initially referred appellant to Dr. Hitch. As he was unable to provide an opinion
on the issues of continuing disability and residuals, his report lacks probative value. A.D., 58 ECAB ___ (Docket
No. 06-1183, issued November 14, 2006); Michael E. Smith, 50 ECAB 313 (1999).

5

accepted injury.10 To establish a causal relationship between the condition, as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized
medical evidence, based on a complete factual and medical background, supporting such a causal
relationship.11 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.12 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.13
ANALYSIS -- ISSUE 2
After the Office properly terminated appellant’s compensation and medical benefits in its
August 8, 2007 decision, the burden of proof shifted to her to establish continuing employmentrelated disability or residuals.14 As part of this burden, appellant is required to present
rationalized medical opinion evidence, based upon a complete and accurate factual and medical
background, establishing causal relationship.15 However, it is well established that proceedings
under the Federal Employees’ Compensation Act are not adversarial in nature and while
appellant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.16
Appellant has submitted medical evidence after August 8, 2007 which supports her claim
that she continued to experience residuals and/or disability causally related to the accepted 1995
incident. On June 26, 2007 Dr. Banks, appellant’s treating psychiatrist since 1994, stated that
she examined appellant one month after the accepted October 25, 1995 work incident. At that
time appellant was experiencing increased pain and exhibited lower extremity weakness, slowing
speech and decline in ability to concentrate. Dr. Banks opined that appellant continued to exhibit
those symptoms. On July 29, 2008 Dr. Opoiens who had been treating appellant for 10 years,
opined that she had not recuperated sufficiently from the October 25, 1995 work injury to return
to work status and that she continued to exhibit symptoms of pain, weakness, dysphagia,
dyspnea, gait instability and cognitive dysfunction, which were exacerbated by the accepted
10

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

11

Kathryn E. Demarsh, supra note 8.

12

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elizabeth Stanislav, 49 ECAB 540 (1998).

13

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); Solomon Polen, 51 ECAB 341 (2000).

14

I.J., supra note 8; Joseph A. Brown, Jr., supra note 10.

15

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
16

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 15; Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

6

incident. In an undated report, received by the Office on August 8, 2008, Dr. Camp diagnosed
adjustment disorder and depressed mood, exacerbated by PTSD. He opined that the October 25,
1995 employment incident resulted in an emotional breakdown, which led to an aggravation of
her preexisting physical and neurological conditions and the development of PTSD. Dr. Camp
also opined that appellant continued to experience symptoms related to the October 25, 1995
incident.
The Board notes that while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that she continues to experience
residuals and/or disability causally related to the accepted 1995 incident and are not contradicted
by any substantial medical or factual evidence of record. While the reports are not sufficient to
meet her burden of proof to establish her claim, they raise an uncontroverted inference between
her claimed conditions and the accepted employment incident and are sufficient to require the
Office to further develop the medical evidence and the case record.17
On remand, the Office should submit a statement of accepted facts to appellant’s treating
physician or to a second opinion examiner, in order to obtain a rationalized opinion as to whether
her current condition is causally related to factors of her employment, either directly or through
aggravation, precipitation or acceleration.
LEGAL PRECEDENT -- ISSUE 3
Regarding consequential injuries, the basic rule is that a subsequent injury, whether 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.18
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury.19 To establish a causal relationship between the
condition claimed, as well as any attendant disability and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.20 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.21 Rationalized medical evidence is evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
17

See Virginia Richard, supra note 15; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone,
41 ECAB 354 (1989).
18

S.M., 58 ECAB ___ (Docket No. 06-536, issued November 24, 2006), citing A. Larson, The Law of Workers’
Compensation § 10.01 (2004).
19

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

20

Jennifer Atkerson, 55 ECAB 317 (2004).

21

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

7

reasonable medical certainty and must be supported by medical rationale, explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.22
Neither the fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.23
ANALYSIS -- ISSUE 3
The Board finds that this case is not in posture for a decision as to whether appellant’s
claim should be expanded to include PTSD and aggravation of her preexisting fibromyalgia and
spinocerebellar syndrome as a result of her 1995 employment injury.
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury.24 To establish a causal relationship between the
condition claimed, as well as any attendant disability and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.25 As noted above, however, proceedings
under the Act are not adversarial in nature and while appellant has the burden of establishing
entitlement to compensation, the Office shares responsibility in the development of the evidence
to see that justice is done.26
The medical evidence of record supports appellant’s claim that her preexisting conditions
of fibromyalgia and spinocerebellar syndrome were exacerbated by the 1995 employment injury
and that the accepted injury led to PTSD. On June 26, 2007 Dr. Banks opined that the
October 25, 1995 work incident aggravated her preexisting fibromyalgia and spinocerebellar
syndrome, as evidenced by her increased pain, lower extremity weakness and slowing speech
and decline in ability to concentrate. On July 29, 2008 Dr. Opoien opined that appellant’s
preexisting conditions of fibromyalgia, chronic fatigue syndrome and neuromuscular/
spinocerebellar syndrome were aggravated by the October 25, 1995 work incident and stated that
she had not recuperated sufficiently to return to work status and that she continued to exhibit
symptoms of pain, weakness, dysphagia, dyspnea, gait instability and cognitive dysfunction,
which were exacerbated by the accepted work incident. Dr. Camp diagnosed adjustment
disorder and depressed mood, exacerbated by PTSD. He also diagnosed myasthenia gravis;
fibromyalgia; chronic fatigue syndrome; hypothyroidism and borderline diabetes mellitus.
22

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

23

Ernest St. Pierre, 51 ECAB 623 (2000).

24

Jaja K. Asaramo, supra note 19.

25

Jennifer Atkerson, supra note 20.

26

Phillip L. Barnes, supra note 16; see also Virginia Richard, supra note 15; Dorothy L. Sidwell, supra note 16;
William J. Cantrell, supra note 16.

8

Dr. Camp opined that the October 25, 1995 employment incident resulted in an emotional
breakdown, which led to an aggravation of her preexisting physical and neurological conditions
and the development of PTSD.
While none of these reports are completely rationalized, they are consistent in indicating
that appellant’s preexisting conditions were aggravated by the 1995 employment injury.
Dr. Camp’s opinion that the accepted injury led to the development of PTSD is not contradicted
by any substantial medical or factual evidence of record. While the reports are not sufficient to
meet her burden of proof to establish her claim, they raise an uncontroverted inference between
appellant’s claimed conditions and the accepted employment incident and are sufficient to
require the Office to further develop the medical evidence and the case record.27
The Board notes that Dr. Heyl’s May 18, 2005 report did not contain an opinion as to
whether appellant’s preexisting conditions were aggravated by the October 1995 employment
injury. Therefore, his report is of no probative value on this issue.28 The Board finds that the
Office was obligated to obtain a supplemental report from Dr. Heyl addressing whether
appellant’s preexisting conditions were aggravated by the accepted injury. Once the Office
undertakes development of the record, it has the responsibility to do so in a proper manner.29
Therefore, the case must be remanded for further development of the medical evidence.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss and medical
benefits, effective May 18, 2005, on the grounds that she had no residuals or disability causally
related to her accepted employment injury. The Board further finds that the case is not in posture
for a decision as to whether appellant had any continuing employment-related residuals or
disability after May 18, 2005 and whether she met her burden of proof to establish that she had
any additional conditions causally related to the accepted October 25, 1995 injury.

27

See supra note 17.

28

See A.D., supra note 9; Michael E. Smith, supra note 9.

29

See Henry G. Flores, Jr., 43 ECAB 901 (1992); see also Charles J. Jenkins, 40 ECAB 362 (1988).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ dated November 4, 2008 is affirmed in part and set aside and
remanded in part, consistent with this opinion.
Issued: November 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ocean Park, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1464
Issued: February 15, 2011

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 May 5, 2010 appellant filed a timely appeal from a March 16, 2010 merit decision 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 case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On December 3, 2009 appellant, then a 39-year-old sales and service associate, filed an
occupational disease claim alleging that he sustained carpal tunnel syndrome as a result of
sorting mail between two and four hours a day for 12 years. He first became aware of his
condition in May 2008. Appellant did not stop work.
In a December 4, 2009 accident report, appellant’s supervisor noted that appellant visited
his physician on May 10, 2008, underwent electrical impulse testing for his wrist pain, was

diagnosed with mild carpel tunnel syndrome and received a wrist brace. Appellant did not miss
work due to this condition in the ensuing months. The supervisor pointed out that a different
physician later attributed the carpel tunnel syndrome to repetitive mail sorting for the past
12 years and recommended surgery. In addition, appellant mentioned that he constructed a twostory, triple bay garage as well as framed and roofed his 3,000-square-foot house.
On December 16, 2009 the Office informed appellant that the evidence submitted was
insufficient to establish his claim and advised him about additional evidence needed to establish
his claim.
A December 31, 2009 statement from appellant’s supervisor detailed that sorting was
“eliminated” as mail arrived at the workplace already sequenced and casing involved repetitive
motion for up to two hours a day. He added that sorting was more commonplace during the first
10 years of appellant’s employment.
In a January 6, 2010 statement, appellant described his job duties, including moving and
unloading mail from containers, cages, bags, trays and tubs weighing up to 70 pounds and
sorting between 21 and 40 feet of letters, magazines, catalogs, parcels and accountable mail for
at least four hours a day. He denied any previous hand injuries. Appellant stated that he began
building a house five years earlier and only completed a roof and shell. He was unable to devote
more than two hours a week on the project due to his employment schedule and his hand pain,
which hindered his ability to use tools such as a hammer. Appellant’s supervisor concurred with
this account in a December 26, 2009 statement, but noted that appellant failed to discuss that he
built a garage about six or seven years earlier.
In a December 2, 2009 note from Dr. Jon Kretzler, a Board-certified orthopedic surgeon,
appellant complained of pain and numbness radiating from his right hand to his shoulder for
several years. He listed a history of post-traumatic stress disorder, anxiety disorder,
hyperlipidemia, spondylosis of the cervical spine and lumbar radiculopathy. Dr. Kretzler
commented that appellant worked at the employing establishment “with heavy repetitive use of
the hand and wrist.” He referred to May 2008 nerve conduction studies showing evidence of a
median nerve compression of the right wrist. Dr. Kretzler examined appellant’s right hand and
observed mild tenderness over the first dorsal compartment, a mildly positive Phalen’s sign and a
positive Tinel’s sign. He diagnosed right carpal tunnel syndrome and recommended
decompression surgery. In a January 14, 2010 note, Dr. Kretzler stated that appellant’s pain
markedly improved following a January 5, 2010 surgical release.
A December 16, 2009 report from Dr. Richard D. Baertlein, Board-certified in
occupational medicine, noted that appellant presented with carpal tunnel syndrome of the right
hand supported by May 2008 nerve conduction studies and exhibited “classic” symptoms for
over two years without significant weakness. Dr. Baertlein advised that appellant described
hand-intensive work activities that were “temporally associated” with symptom flares. On
examination, he observed a mildly positive Tinel’s sign and assessed right carpal tunnel
syndrome. Dr. Baertlein noted time loss from surgery for the period January 5 to 21, 2010. In
January 21 and February 4, 2010 reports, he stated that appellant’s January 5, 2010 surgery
resolved his numbness and tingling. Dr. Baertlein returned appellant to modified duty status on
January 22, 2010.

2

In a January 23, 2010 report, Dr. Baertlein reiterated that appellant had confirmed
symptoms of right carpal tunnel syndrome for nearly two years and described “a temporal
association betweens symptom aggravation and intensive hand activity at work.” He pointed out
that appellant did not demonstrate any of the other normally-associated risk factors based upon
endogenous body size, sex, age, underlying inflammatory or arthritic conditions or
endocrinopathies. Dr. Baertlein stated, “It would be my inclination to support [appellant’s] claim
of an occupational association between his work activities and his condition.”
Appellant also provided occupational therapy records for the period January 25 to
February 24, 2010.
By decision dated March 16, 2010, the Office denied appellant’s claim on the grounds
that the medical evidence did not sufficiently establish that employment activities caused or
aggravated his condition.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his 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 disabilities and/or specific conditions for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (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

1

Appellant requested an oral hearing on March 18, 2010, which was scheduled for June 22, 2010. However, he
appealed to the Board on May 5, 2010. The Board and the Office may not have simultaneous jurisdiction over the
same issue. See 20 C.F.R. § 501.2(c)(3).
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

See S.P., 59 ECAB 184, 188 (2007).

6

See R.R., 60 ECAB ___ n.12 (Docket No. 08-2010, issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238,
241 (2005).

3

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The record supports that appellant moved, unloaded and sorted mail at least four hours a
day. The medical evidence supports that he was diagnosed with right carpal tunnel syndrome.
However, appellant has not submitted sufficient medical evidence to establish that his condition
was caused or aggravated by the accepted employment factors.
Dr. Baertlein opined that appellant’s right carpal tunnel syndrome was temporally
associated with hand-intensive activities at the workplace. A temporal relationship alone is
insufficient to establish a causal relationship.8 A physician must do more than note a temporal
relationship. The physician must base his opinion on a complete factual and medical background
with an accurate history of employment injury and explain how appellant’s condition is
pathophysiologically related to employment factors.9 Dr. Baertlein stated that appellant did not
exhibit any of the other risk factors associated with carpal tunnel syndrome based on endogenous
body size, sex, age, underlying inflammatory or arthritic conditions or endocrinopathies; but he
did not provide adequate medical reasoning to explain how moving, unloading and sorting mail
for four hours a day would cause or aggravate appellant’s diagnosed condition.10 The need for
medical rationale is important as the evidence suggests that appellant was also involved in
repetitive off-duty construction tasks.
Dr. Kretzler’s December 2, 2009 note mentioned only that appellant’s employment
entailed heavy repetitive use of his hand and wrist. He did not clearly explain the causal
relationship between appellant’s mail sorting activity and his right carpal tunnel syndrome.
Dr. Kretzler did not discuss the reasons why particular employment duties would cause or
aggravate the diagnosed right carpal tunnel syndrome.

7

I.J., 59 ECAB 408, 415 (2008); Woodhams, supra note 4 at 352.

8

See also D.I., 59 ECAB 158 (2007) (fact that a condition manifests itself during a period of employment does
not raise an inference of causal relationship). Louis T. Blair, 54 ECAB 348 (2003); Thomas D. Petrylak, 39 ECAB
276 (1987).
9

See Joan R. Donovan, 54 ECAB 615, 621 (2003).

10

See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment
incident described by the claimant caused or contributed to diagnosed medical condition).

4

Appellant also provided occupational therapy records for the period January 25 to
February 24, 2010. These records do not constitute competent medical evidence as an
occupational therapist is not considered a physician within the meaning of the Act.11
Appellant argues on appeal that he suffered extreme hand, arm and armpit pain for years
and that his physicians, advised that his carpal tunnel syndrome was employment related. The
carpal tunnel syndrome diagnosis is not in dispute; but as addressed above, the physicians of
record did not sufficiently explain how repetitive moving, unloading and sorting of mail caused
or contributed to appellant’s condition.
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2011
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

11

5 U.S.C. § 8101(2); Jerre R. Rinehart, 45 ECAB 518 (1994). See also Charley V.B. Harley, 2 ECAB 208, 211
(1949) (medical opinion, in general, can only be given by a qualified physician).

5


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Shaker Heights, OH, Employer
)
___________________________________________ )
D.J., Appellant

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

Docket No. 16-0288
Issued: May 25, 2016

Case Submitted on the Record

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

JURISDICTION
On December 2, 2015 appellant, through counsel, filed a timely appeal of a June 25, 2015
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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a low back injury
causally related to factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board. In a March 21, 2014 decision,
the Board found the case was not in posture for decision.2 The Board found that the medical
evidence was generally supportive that appellant’s work activities as a laborer custodian caused
or aggravated her claimed low back conditions. The Board specifically referred to the reports of
Dr. Dane Donich, a neurosurgeon, who opined that her diagnoses, including: L3-4, L4-5, and L5Sl disc herniations and L5-S1 spondylolisthesis, were a “direct and proximate result of the
prolonged mechanical wear and tear on her lumbar spine incurred by her work-related duties.”
The Board found that while his reports were not sufficiently rationalized and did not sufficiently
address the impact of appellant’s 2010 low back surgery to her present condition, Dr. Donich’s
opinion was uncontroverted and consistent in indicating that appellant had a work-related
condition. The Board remanded the case for OWCP to request appellant’s medical records
regarding her low back condition, including her operative reports from 2010 and 2012. OWCP
was to then refer appellant, the case record, and a statement of accepted facts to an appropriate
Board-certified specialist for an evaluation and a rationalized medical opinion regarding the
cause of appellant’s claimed condition, and issue a de novo decision. The facts and history
contained in the prior appeal are incorporated herein by reference.
By letter dated April 7, 2014, OWCP informed appellant that it needed her medical
records from her 2010 and 2012 surgeries and treatment.3 Appellant was afforded 30 days to
submit the requested evidence.
In a June 4, 2014 letter to appellant, OWCP noted that, although it had not received the
requested documentation, it was referring her for a second opinion examination. It repeated its
request for the documentation.
In a separate letter also dated June 4, 2014, OWCP referred appellant for a second
opinion, along with a statement of accepted facts, a set of questions and the medical record to
Dr. Manhal Ghanma, a Board-certified orthopedic surgeon.
In June 2014 appellant submitted medical records that included the operative reports for
her 2012 surgeries. She noted that she was still waiting for the reports from 2010 and would be
submitting diagnostic test results in a timely fashion. The medical evidence included April 25
and December 14, 2012 operative reports from Dr. Donich as well as status reports and several
disability certificates placing appellant on light duty.

2

Docket No. 14-52 (issued March 21, 2014). Appellant worked as a custodian and engaged in duties which
required using a cart and trash can. It also involved frequent bending, as well as twisting, turning, lifting, pushing,
and pulling of equipment. Appellant filed an occupational disease claim (Form CA-2) on March 24, 2012 when her
“chronic pain became unbearable.”
3

OWCP noted that they had Dr. Donich’s reports dated March 26 and April 9, 2012, her pre-surgery testing
schedule from Akron City Hospital dated April 25, 2012, and Dr. Donich’s reports dated August 27, November 8,
and December 14, 2012 and March 4, 2013, a medical authorization request dated September 24, 2012 and the
December 14, 2012 operative report from Medina Hospital.

2

OWCP also included a copy of the previously received March 4, 2013 report from
Dr. Donich, who attributed appellant’s condition to her strenuous job duties as a custodian over
the past 15 years. Dr. Donich advised that in December 2011 she had increased low back
symptoms. Thereafter, he saw appellant in consultation.4 Dr. Donich explained that she was
involved in a long-standing physically strenuous occupation for years. He opined that the
activities of appellant’s position included a significant requirement for mechanical motion at the
waist which was a direct and proximate cause of the disc herniations at L3-4, L4-5, and L5-S1,
as well as the L5-S1 spondylolisthesis.
In an October 28, 2013 report, Dr. Donich noted that appellant returned for follow up and
complained of pain in the left hip and gluteal area. He noted review of a magnetic resonance
imaging (MRI) scan from April 2013, and confirmed left foraminal stenosis at L3. In a
January 30, 2014 report, Dr. Donich reported that appellant was one year postoperation and had
fairly constant left gluteal and hip pain, resulting in a limp. He recommended an MRI scan and
x-rays.5 In a May 7, 2014 report, Dr. Donich noted that appellant was involved in a motor
vehicle accident on April 11, 2014 when she was rear-ended. He opined that her low back
symptoms had worsened.
In a report dated June 26, 2014, Dr. Ghanma described appellant’s history of injury. He
also noted that appellant was involved in a motor vehicle accident on April 11, 2014, which
resulted in worsening low back complaints that included sensory deficits in the legs, weakness,
falls, and radiating pain to both legs. On examination, appellant complained of decreased left
lateral and right medial leg sensation as well as decreased left lateral foot sensation. She had
normal motor sensation in both legs, decreased sensation in the left heel, and slight breakaway
weakness to left ankle dorsiflexion. Dr. Ghanma determined that appellant’s gait, stance and
balance were normal. Heel and toe walking were not attempted. Dr. Ghanma opined that the
original surgery was unrelated to the work factors reported by appellant, as it predated the injury.
He noted that imaging studies revealed lumbar stenosis, which was not caused or aggravated by
her occupational exposure. Dr. Ghanma advised that spondylolisthesis at L5-S1 was also
reported by Dr. Donich, who performed a fusion which was extended through L3 in
December 2012, and prior hardware was removed. He explained that it was “unclear whether
her spondylolisthesis was related to the work activity, but it may have been aggravated by her
work activity, resulting in her subsequent symptoms.” Dr. Ghanma noted that Dr. Donich also
diagnosed pars fractures and disc protrusions from L3 to S1, but Dr. Ghanma opined that it was
“not possible to determine whether any of these fractures were directly caused, aggravated,
accelerated, or precipitated by her occupational exposure.” He further noted that the aggravation
of the L5-S1 spondylolisthesis was corrected by the April 2012 surgery, and there was no
evidence to support ongoing aggravation. Dr. Ghanma opined that the April 2012 surgery was
related to the aggravation of spondylolisthesis, but it was not possible to determine the basis for
the December 2012 surgery. He found that appellant was incapable of performing her date-ofinjury duties due to the ongoing lumbar complaints. Dr. Ghanma assigned work restrictions, and
found that her current limited-duty position was suited to her abilities.
4

Dr. Donich explained that he performed two surgeries to address stenosis and spondylolisthesis, but her
recovery was incomplete.
5

OWCP received a February 26, 2014 lumbar spine MRI scan.

3

By letter dated July 14, 2014, OWCP requested that Dr. Ghanma clarify his opinion with
regard to whether any diagnosed conditions were directly caused, aggravated, accelerated or
precipitated by appellant’s occupational exposure. It also requested his opinion with regard to
any consequential conditions, and noted that he must provide an unequivocal opinion.
In a September 4, 2014 response, Dr. Ghanma opined that his answers remained the same
as it was not possible to know for certain what caused her symptoms to worsen, or when she
developed pars defects. He explained that there was no medical science that he was aware of
that would substantiate that spinal stenosis could be directly caused, aggravated, precipitated, or
accelerated by her work activities. Dr. Ghanma noted that the level of proof in this case would
require medical evidence revealing a physical worsening of the degree of spinal stenosis. He
stated that such medical evidence did not exist to the best of his knowledge. Dr. Ghanma
explained that the Carraggee studies revealed that there was no change in the lumbar MRI scan
findings after the onset of disabling low back pain secondary to minor trauma. He opined that
regarding the “aggravation” of spondylolisthesis, in this case would be based solely upon
worsened spondylolisthesis, as opposed to any documented physical change in the degree of
spondylolisthesis, which was why “it was difficult, if not impossible, to determine whether any
such aggravation occurred, because the back pain and leg pain were subjective symptoms. Such
symptoms may or may not have a physical cause/explanation.” Dr. Ghanma stated that there
was “no way to determine when she developed her pars ‘fractures’ or defects.” He also opined
that it was “not possible to determine with exact certainty when or why she developed disc
protrusions.” Dr. Ghanma related that the alleged mechanism of injury, feeling a pop in her back
at work could not be independently verified and did not confirm that any “injury” occurred. He
indicated that pars defects could be developmental in nature, or could occur slowly over time and
that was why it was “not possible to provide conclusive answers to your questions.” Dr. Ghanma
further advised that occupational exposure based on simply doing her job was not known to
result in pars defects or disc protrusions based on medical science. He surmised that it was “not
possible to determine whether any of the documented imaging findings had any relationship to
appellant’s work activities. Medical science would suggest that her pathology developed
spontaneously as a result of degenerative lumbar wine changes. Any ‘aggravation’ would be
based solely on subjective complaints as opposed to objective examination findings. The
determination of aggravation would then be an administrative one, as opposed to one based on
objective physical evidence.”
By decision dated September 11, 2014, OWCP denied appellant’s claim for
compensation due to an employment-related injury. It found that the evidence of record did not
establish causal relationship.
On September 15, 2014 counsel for appellant requested a telephonic hearing, which was
held before an OWCP hearing representative on April 15, 2014. He argued that Dr. Donich was
a far more accomplished surgeon than Dr. Ghanma, who was biased against claimants. Counsel
noted that Dr. Ghanma opined that it was not possible to assign causation in this case, which
amounted to an admission that he did not have the medical expertise needed to offer an opinion
on the subject. He also argued that OWCP could find a conflict in the medical opinion and refer
appellant for a referee examination.

4

By decision dated June 25, 2015, the OWCP hearing representative affirmed the
September 11, 2014 decision. It found that the reports of Dr. Ghanma carried the weight of the
medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was 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 and/or specific condition for which compensation is claimed are causally related
to the employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.8
ANALYSIS
OWCP found that appellant established that, as a custodian, she engaged in duties which
required using a cart and trash can and frequent bending, as well as twisting, turning, lifting,
pushing, and pulling of equipment. In the prior appeal, the Board found that while the medical
evidence of record was insufficiently rationalized to establish that appellant sustained a workrelated condition, it was sufficient to require further development regarding whether appellant’s
work activities caused or aggravated her claimed low back conditions. The Board also directed
that OWCP request additional medical records from appellant.

6

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Victor J. Woodhams, 41 ECAB 345 (1989).

8

Id.

5

On remand OWCP requested the medical history and referred appellant for a second
opinion examination with Dr. Ghanma. The Board notes that OWCP received additional
medical documentation but it did not receive the medical reports regarding her 2010 L4 surgery.
In a report dated June 26, 2014, Dr. Ghanma described appellant’s history and provided
findings. He explained that it was “unclear whether her spondylolisthesis was related to the
work activity, but it may have been aggravated by her work activity, resulting in her subsequent
symptoms.” Dr. Ghanma noted that Dr. Donich also diagnosed pars fractures and disc
protrusions from L3 to S1, but Dr. Ghanma opined that it was “not possible to determine
whether any of these fractures were directly caused, aggravated accelerated or precipitated by her
occupational exposure.” He opined that the aggravation of the spondylolisthesis at L5-S1 was
corrected by the April 2012 surgery, and there was no evidence to support ongoing aggravation.
Dr. Ghanma opined that the April 2012 surgery was related to the aggravation of
spondylolisthesis, but it was not possible to determine the basis for the December 2012 surgery.
He found that appellant was incapable of performing her date-of-injury duties due to the ongoing
lumbar complaints but could perform her limited-duty job.
The Board notes, however, that this report was speculative and failed to adequately
address the question he was asked to address.9 On July 14, 2014 OWCP properly requested that
Dr. Ghanma clarify his opinion with regard to whether any diagnosed conditions were caused,
aggravated, accelerated or precipitated by appellant’s occupational exposure. However, the
Board finds that Dr. Ghanma did not adequately explain his opinion.
In a September 4, 2014 response, Dr. Ghanma opined that his answers remained the same
as it was not possible to know for certain what caused her symptoms to worsen, or when she
developed pars defects. He explained that there was no medical science that he was aware of
that would substantiate that spinal stenosis could be directly caused, aggravated, precipitated, or
accelerated by her work activities. Dr. Ghanma noted that the level of proof in this case would
require medical evidence revealing a physical worsening of the degree of spinal stenosis. He
stated that such medical evidence did not exist to the best of his knowledge. Dr. Ghanma noted
that certain studies showed that there was no change in lumbar MRI scan findings after the onset
of disabling low back pain secondary to minor trauma. Regarding the “aggravation” of
spondylolisthesis, he explained that it would be based solely upon worsened spondylolisthesis, as
opposed to any documented physical change in the degree of spondylolisthesis, which was why
“it was difficult, if not impossible, to determine whether any such aggravation occurred, because
the back pain and leg pain were subjective symptoms” and such symptoms may not have a
physical explanation. Dr. Ghanma also explained that there was “no way to determine when she
developed her pars ‘fractures’ or defects” and that it was “not possible” to determine exactly
when or why appellant developed disc protrusions. He related that the alleged mechanism of
injury in this case of feeling a pop in her back at work could not be independently verified and
did not confirm that any “injury” occurred.
However, the record reflects that appellant attributed her condition to her work activities,
which included continuous bending, twisting, pushing, and pulling of equipment. Dr. Ghanma
9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3(f)(2) (July 2011).

6

referenced appellant’s job duties in a June 26, 2014 report, however, he did not address these
activities in his September 4, 2014 supplemental report. Instead, he referenced a mechanism of
injury as a “pop” which could not be independently verified. He also noted that pars defects
could be developmental in nature, or could occur slowly over time and that was why it was “not
possible” to provide conclusive answers regarding this. Dr. Ghanma further advised that
occupational exposure based on simply doing her job was not known to result in pars defects or
disc protrusions based on medical science. However, he then opined that it was “not possible to
determine whether any of the documented imaging findings had any relationship to her work
activities” as medical science would suggest that her pathology developed spontaneously as a
result of degenerative lumbar spine changes. Dr. Ghanma opined that any aggravation would be
based solely on subjective complaints as opposed to objective findings and noted that the
determination of aggravation would be “an administrative one, as opposed to one based on
objective physical evidence.”
The Board finds his opinions are inconsistent and insufficiently rationalized. In his initial
report, Dr. Ghanma indicated that appellant’s spondylolisthesis may have been aggravated by her
work activity but in his later report he found it “difficult, if not impossible, to determine whether
any such aggravation occurred” because the back pain and leg pain were subjective symptoms.
He did not sufficiently explain the change in his opinion. Furthermore, the Board notes that it is
not necessary to prove a significant contribution of employment factors to a condition for the
purpose of establishing causal relationship.10 In reaching his conclusions in his most recent
report, Dr. Ghanma did not sufficiently explain how findings of Dr. Donich and diagnostic
testing of record supported his opinion.
As Dr. Ghanma has indicated that he is unable to clearly answer all questions posed to
him by OWCP, appellant must be referred to another Board-certified specialist. Once OWCP
undertakes development of the record, it has the responsibility to obtain an evaluation which will
resolve the issue involved in the case.11 The case is remanded to OWCP to refer appellant to
another specialist for a rationalized medical opinion on whether appellant’s work duties caused
or aggravated her diagnosed low back conditions. Following this and any further development
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

See Glenn C. Chasteen, 42 ECAB 493 (1991); Beth P. Chaput , 37 ECAB 158 (1985) (where the medical
evidence reveals that factors of employment contributed in any way to the disabling condition, such condition is
considered employment related for the purpose of compensation under FECA).
11

See Mae Z. Hackett, 34 ECAB 1421 (1983).

7

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further proceedings consistent
with this decision of the Board.
Issued: May 25, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, RIVERDALE
STATION, Bronx, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1506
Issued: January 5, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 14, 2016 appellant filed a timely appeal from a February 12, 2016 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to expand the accepted conditions
in her claim to include lower back sprain, L5-S1 central disc herniation, and disc bulge at L4-5.
On appeal appellant asserts that when she fell on June 15, 2015 she tried to break the fall
with her arm but fell straight onto her back. She maintained that the submitted medical evidence
established that her back conditions were employment related.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 6, 2015 appellant, then a 48-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she fractured her right wrist that day.
Dr. Richard Oswald Kirkwood, Board-certified in emergency medicine, indicated that on
an emergency department report dated June 6, 2015 appellant slipped and fell at work, landing
on her right wrist, and that she denied any other injuries. He diagnosed closed fracture of radius
and prescribed medication.
Appellant was next seen on June 9, 2015 by Dr. David E. Lent, Board-certified in
orthopedic surgery, who reported a history of right wrist fracture and referred appellant to his
associate, Dr. Eric M. Spencer, a Board-certified orthopedic surgeon, who first saw appellant on
June 11, 2015. Dr. Spencer performed right distal radius open-reduction internal fixation on
June 16, 2015 and provided follow-up care on June 23, 30, July 1 and 21, 2015. He advised that
appellant was totally disabled.
By letter dated July 1, 2015, appellant noted that a supervisor filled out her Form CA-1
on the day of injury because she was unable to use her right hand. She maintained that, in
addition to the fractured wrist, she also injured her shoulder and back and needed medical
treatment for these conditions.
In a July 7, 2015 report, Dr. Lent noted that appellant reported back and shoulder pain
since the employment injury. He described physical examination findings of paraspinal
tenderness in the upper lumbar and lower thoracic region, increased pain with flexion and
extension of the spine, and significant tenderness along the spine of the scapula with some
resolving ecchymosis in this region. Dr. Lent diagnosed severe contusion of the right scapula
and lower back strain and contusion. He recommended physical therapy.
By letter dated August 4, 2015, OWCP notified appellant that the claim had initially been
administratively handled for payment of limited medical expenses and had now been opened for
formal adjudication. It indicated that closed fracture of the lower end of radius, right, had been
accepted. OWCP advised appellant of the type of evidence needed to establish her claim for
additional conditions, including a physician’s opinion explaining how the accepted work incident
caused or aggravated any additional conditions.
On August 7, 2015 appellant began filing claims for compensation (Form CA-7) for
benefits commencing July 22, 2015, when her continuation of pay expired. She received wageloss compensation.
In reports dated August 4 to 25, 2015, Dr. Lent noted that appellant’s wrist was
progressing well but that she still had significant pain and an impingement sign on right shoulder
examination. Appellant also had lower back pain. On an attending physician’s report (Form
CA-20) dated August 14, 2015, Dr. Lent diagnosed severe contusion in the right scapula and
lower back strain. He checked a form box marked “yes,” indicating that these conditions were
employment related, and changed her shoulder diagnosis to internal derangement. Dr. Lent
recommended a shoulder magnetic resonance imaging (MRI) scan and advised that appellant
2

could not return to work. On August 25, 2015 he noted appellant’s report that, when she fell, she
put her arm out in order to stop her fall and then fell backwards, landing on her right shoulder,
with significant shoulder pain and difficulty with range of motion. Dr. Lent indicated that he
thought all conditions stemmed from the initial fall and were all causally related.
On attending physician’s reports dated September 15 and November 11, 2015, Dr. Lent
noted appellant’s complaints of shoulder and lower back pain. He diagnosed wrist fracture,
internal derangement of the shoulder and lower back sprain. Dr. Lent checked a form box
marked “yes,” indicating that the conditions were employment related, noting that “patient was
hurt while at work.” He advised that appellant continued to be totally disabled.
A November 24, 2015 right shoulder MRI scan demonstrated supraspinatus tendinosis
with a high grade articular surface insertional tear without significant retraction, moderate
acromioclavicular joint arthrosis, and subscapularis tendinosis. A November 30, 2015 MRI scan
of the lumbar spine demonstrated straightening of the lumbar lordosis which could represent
muscular spasm, a broad disc bulge at L4-5 with a left annular fissure, and a protruding disc at
L5-S1.
By letter dated December 30, 2015, OWCP again informed appellant that additional
medical evidence was needed to support her claim for right shoulder and lower back conditions.
It asked her to provide a narrative report from her physician who explained with supportive
medical rationale how the claimed conditions were medically connected to the June 6, 2015
work injury. Appellant was forwarded a questionnaire to complete and given 30 days to
respond.
Appellant completed the development questionnaire on January 5, 2016. She indicated
that she had neither back nor shoulder issues before she fell on June 6, 2015. Appellant
maintained that she mentioned all of her conditions from the first day but that, due to the severity
of her wrist injury, the physician put her wrist first.
In a progress note dated January 11, 2016, Dr. Lent opined that, when appellant fell on
June 6, 2015 and fractured her right wrist, she also injured her right shoulder. He discussed the
right shoulder MRI scan findings and diagnosed right shoulder partial almost full-thickness
rotator cuff tear. Dr. Lent advised that he believed the injury was due to the June 6, 2015 injury
and requested authorization for right shoulder surgery.
On January 22, 2016 OWCP additionally accepted partial rotator cuff tear of the right
shoulder as caused by the June 6, 2015 employment injury. Dr. Lent performed right shoulder
surgery on June 16, 2015, and provided follow-up care on June 23, 30, July 1 and 21, 2015.
By decision dated February 12, 2016, OWCP found that, based on the medical evidence
of record, the additional diagnoses of lower back sprain, L5-S1 central disc herniation, and disc
bulge at L4-5 were not proven to have been caused by the June 6, 2015 employment injury.

3

LEGAL PRECEDENT
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.2 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.3 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 causal relationship.4
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish that her
current lumbar conditions were caused by the June 6, 2015 employment injury. OWCP accepted
that appellant sustained a fracture of the lower end of her right radius and a partial right rotator
cuff tear when she fell at work on June 6, 2015. The record, however, does not support that the
claimed lower back conditions were caused by this employment-related injury.
In the emergency department report on June 6, 2015, Dr. Kirkwood diagnosed right wrist
fracture and noted that appellant denied other injuries. Dr. Lent saw appellant on June 9, 2015,
and Dr. Spencer saw her on June 11, 2015. He performed surgery on June 16, 2015, and
provided follow-up care on June 23, 30, July 1 and 21, 2015. Neither physician mentioned a low
back injury in their reports, including Dr. Spencer’s report on July 21, 2015.
It was not until July 1, 2015 that appellant maintained that, in addition to the fractured
wrist, she also injured her shoulder and back and needed medical treatment for these conditions.
Dr. Lent reported on July 7, 2015 that appellant had examination findings of paraspinal
tenderness in the upper lumbar and lower thoracic region and increased pain with range of
motion. He diagnosed low back strain and contusion without further explanation. In reports
dated August 4 to 25, 2015, Dr. Lent merely indicated that appellant had low back pain. While
he checked a Form CA-20 box marked “yes” on August 14, 2015 indicating that the condition
was employment related, when a physician’s opinion on causal relationship consists only of
checking a box, that opinion has little probative value and is insufficient to establish a causal
relationship.5 Dr. Lent submitted additional CA-20 forms on September 15 and November 11,
2015 in which he diagnosed lower back sprain and, in addition to checking a box marked “yes”
explained: “patient was hurt while at work.” The Board finds this summary statement
insufficient to establish causal relationship. Dr. Lent provided no rationale for this opinion.6
2

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

3

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

4

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

5

Gary J. Watling, 52 ECAB 278 (2001).

6

See E.A., 58 ECAB 677 (2007).

4

Moreover, while repeating the history of injury on August 25, 2015, he noted appellant’s
description of the incident that, when she fell, she put her arm out to stop her fall and fell
backwards onto her right shoulder. Dr. Lent did not mention appellant’s back. In his most
recent report, that of January 11, 2016, he discussed shoulder findings but did not discuss any
back complaints or diagnoses.
The lumbar spine MRI scan dated November 30, 2015 did not provide a cause of any
diagnosed conditions. The Board has long held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.7
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to his
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.8 It is appellant’s burden to establish that his claimed back condition
is causally related to the work injury. In this case the medical evidence submitted was
insufficient to establish that the diagnosed conditions at L4-5 and L5-S1 were caused by the
June 6, 2015 employment injury.9
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 did not meet her burden of proof to expand the accepted
conditions in her claim to include lower back sprain, L5-S1 central disc herniation, and disc
bulge at L4-5.

7

Willie M. Miller, 53 ECAB 697 (2002).

8

A.D., 58 ECAB 149 (2006).

9

Supra note 4.

5

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 5, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6