United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Decatur, GA, Employer
__________________________________________

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

Docket No. 16-1484
Issued: January 6, 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 12, 2016 appellant, through counsel, filed a timely appeal from a May 6, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision dated May 15, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 18, 2012 appellant filed a traumatic injury claim (Form CA-1) alleging
that on September 4, 2012, she was repositioning a patient when she hurt her chest and upper
back. She did not indicate on the claim form that she had stopped work. On April 16, 2014
OWCP accepted appellant’s claim for thoracic sprain, lumbar sprain, right shoulder sprain, and
cervical sprain.
Appellant initially submitted hospital reports indicating that she was treated on
September 11, 2012 in the emergency department. She also submitted multiple progress reports
from Dr. Rohit Manushai Desai, a Board-certified internist dated from September 20, 2012
through September 18, 2013. Dr. Desai diagnosed thoracic sprain/strain, lumbar sprain/strain,
muscle pain, and shoulder sprain/strain. In notes dating from September 20 to October 31, 2012
he related that appellant had been advised to stay off work.
On June 16, 2014 appellant filed a claim for leave without pay (Form CA-7) for the
period October 20, 2012 through January 14, 2013.
By letter dated July 18, 2014, OWCP afforded appellant 30 days to submit medical
information necessary to support her claim. Appellant did not respond.
By decision dated August 26, 2014, OWCP denied appellant’s claim as the medical
evidence of record failed to support that she was totally disabled for the claimed period.
On September 2, 2014 OWCP received appellant’s request for a telephonic hearing
before an OWCP hearing representative.
At the hearing held on February 26, 2015 appellant testified that she was unable to work
from October 20, 2012 to January 14, 2013. She noted that she was hurt on September 9, 2012,
and was under medical care. Appellant indicated that she returned to work on January 14, 2013.
By decision dated May 15, 2015, OWCP’s hearing representative affirmed the denial of
compensation benefits for the period October 20, 2012 through January 14, 2013, finding that
there was no rationalized medical evidence supporting disability during the claimed period due
to her employment injury.
On November 16, 2015 counsel requested reconsideration.
He resubmitted a
September 4, 2013 form report by Dr. Desai. In this report Dr. Desai noted appellant’s history of
injury and related diagnoses of shoulder, arm, thoracic and lumbar spine sprain. He concluded
that a cause of her diagnosed conditions was the accepted employment incident.
By decision dated May 6, 2016, OWCP denied reconsideration without conducting a
merit review.
2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
When a reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the
claimant’s right to review of the merits of the case by the Board, OWCP should conduct a merit
review. That is, the basis of the original decision and any new evidence should be considered
and, if there is no basis to change the original decision, an order denying modification (rather
than denying the application for review) should be prepared. There is no obligation to conduct a
merit review on insufficient evidence if the maximum 180-day time limit for requesting review
by the Board will have expired in the 90-day period following OWCP’s receipt of the claimant’s
reconsideration request.7
ANALYSIS
OWCP accepted that on September 4, 2012 appellant sustained sprain of the thoracic and
lumbar regions of her back, a sprain of her right shoulder and upper arm, and sprain of her neck
causally related to an accepted employment incident. However, in a decision dated August 26,
2014, it denied appellant’s claim for wage-loss compensation for the period October 20, 2012
through January 14, 2013. This decision was affirmed by the hearing representative in a decision
dated May 15, 2015. By letter received by OWCP on November 16, 2015, appellant, through
counsel, requested reconsideration. It denied appellant’s request in a decision dated May 6, 2016
without reviewing the merits of the case.
As noted above, the Board does not have jurisdiction over the merits of the May 15, 2015
decision. The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for further review of the merits of
her claim. The Board finds that in her November 16, 2015 request for reconsideration appellant
3

5 U.S.C. §§ 8128 (a). Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.”
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011);
M.D., Docket No. 13-1344 (issued November 7, 2013).

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did not show that OWCP erroneously applied or interpreted a specific point of law, and she did
not advance a relevant legal argument not previously considered by OWCP. Thus, she is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The underlying issue in this case is whether appellant has established that she was
disabled during the period October 20, 2012 through January 14, 2013. A claimant may be
entitled to a merit review by submitting new, relevant and pertinent evidence, but appellant has
not submitted new relevant and pertinent evidence not previously considered by OWCP.
Counsel submitted no new relevant and pertinent evidence with his reconsideration
request. The September 4, 2013 report from Dr. Desai that counsel submitted had previously
been submitted on October 10, 2013, and it offered no opinion regarding appellant’s disability
status. Although reference is made by OWCP in the May 6, 2016 decision to other progress
reports by Dr. Desai, the record does not reflect that these reports were submitted with the
November 16, 2015 reconsideration request. Nevertheless, the reports listed by OWCP are
duplicates of evidence already in the record. Evidence or arguments that are duplicative,
cumulative, or repetitive in nature are insufficient to warrant reopening a claim for merit review.8
Appellant has not met any of the other criteria warranting reopening of her claim for further
merit review. Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
Counsel further argues on appeal that OWCP failed to issue a timely decision regarding
the request for reconsideration, and that this prejudiced appellant’s appeal rights. The Board
notes that OWCP has a timeliness goal for issuing reconsideration decisions of within 90 days
from receipt of the request.9 OWCP procedures provide that when a reconsideration decision is
delayed beyond 90 days and the delay jeopardizes the claimant’s right to review the merits of the
case by the Board, OWCP should conduct a merit review. However, the procedure manual notes
that there is no obligation to conduct a merit review on insufficient evidence if the maximum
180-day time limit for requesting review by the Board will have expired within the 90-day period
following OWCP’s receipt of the claimant’s reconsideration request. The last merit decision in
this case was the May 15, 2015 decision of the hearing representative. Appellant had 180 days
after this decision, or until November 11, 2015, to appeal that decision to the Board. OWCP
received the reconsideration request on November 16, 2015. Accordingly, it received appellant’s
reconsideration request after the 180-day period for appeal expired, and therefore OWCP’s delay
in issuing the decision on the request for reconsideration did not impact appellant’s appeal
rights.10 Therefore, counsel’s argument on appeal is without merit.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
8

Denis M. Dupor, 51 ECAB 482 (2000).

9

M.D., Docket No. 13-1344 (issued November 7, 2013).

10

B.D., Docket No. 15-0400 (issued May 12, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2016 is affirmed.
Issued: January 6, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mansfield, MA, Employer
__________________________________________

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Appearances:
William E. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-724
Issued: December 14, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated January 5, 2010 which denied her traumatic injury
claim. 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 her burden of proof to establish that she sustained a
left arm injury on June 19, 2009.
FACTUAL HISTORY
On June 22, 2009 appellant, then a 22-year-old mail carrier filed a traumatic injury claim
alleging that she injured her left arm on June 19, 2009 while she was delivering mail. She
stopped work on June 22, 2009 and returned to full-time light-duty work on July 13, 2009. On
June 24, 2009 Michael J. Lombardi, postmaster, controverted the claim. He reviewed appellant’s

managed service point (MSP) scans for June 19, 2009 which revealed that she was not delivering
mail at the place she identified.
In a June 22, 2009 note, Dr. Dmitry Ilyevsky, a Board-certified internist, advised that
appellant was unable to work from June 22 to 24, 2009. In a June 24, 2009 note, he reported
treating appellant on June 22, 2009 for shoulder pain and limited range of motion which occurred
after lifting a mailbag. On June 29, 2009 Dr. Ilyevsky diagnosed left shoulder bursitis versus
rotator cuff tear. Appellant reported experiencing left shoulder pain on June 19, 2009 after
lifting a mail bundle. Dr. Ilyevsky noted with a checkmark “yes” that her condition was caused
or aggravated by an employment activity and was totally disabled. He returned appellant to
work part time, four hours a day.
Appellant was also treated by Dr. James Snead, a Board-certified orthopedic surgeon, on
July 6, 2009 for left shoulder pain. She reported lifting a heavy box of mail on June 19, 2009
and having left shoulder pain. Dr. Snead noted x-ray findings and diagnosed left shoulder
calcific tendinitis with associated adhesive capsulitis. Appellant also submitted physical therapy
notes. She reported injuring her left shoulder on June 19, 2009 while at work after lifting a large
bundle of mail.
On June 29, 2009 Paula A. Rossi, an employing establishment human resource specialist,
controverted the claim noting that appellant allegedly sustained an injury on June 19, 2009 but
delayed in notifying her supervisor until June 22, 2009. Appellant alleged that the injury
occurred on June 19, 2009 while delivering mail on Cottage Street; but her scans revealed that
she did not deliver mail on Cottage Street that day.
In a letter dated July 14, 2009, the Office advised appellant of the factual evidence
needed to establish her claim and requested additional evidence.
In an August 2, 2009 statement, appellant indicated that on June 19, 2009 she was
delivering mail at a residence on Cottage Street when she felt a muscle spasm. She rested her
arm on Sunday and when her condition did not improve, she sought treatment on Monday,
June 22, 2009. Appellant reported the location of the incident to Mr. Lombardi and Mr. Spencer,
who informed her that pursuant to the MSP scan she was not at the identified residence, Cottage
Street, on June 19, 2009. She requested to see the scan but her request was denied. Appellant
sought assistance from her union representative. She asserted that she felt a muscle spasm in her
shoulder while delivering mail. Appellant submitted physical therapy notes and a July 23, 2009
treatment note from Dr. Snead who treated her and diagnosed left shoulder pain, possible labral
pathology and left shoulder impingement syndrome.
In a decision dated August 13, 2009, the Office denied appellant’s claim. It found that
the evidence did not establish that she sustained the June 19, 2009 injury at the time, place and in
the manner alleged.
On October 8, 2009 appellant requested reconsideration. She asserted that the only
evidence casting doubt on her claim was a June 24, 2009 statement from Mr. Lombardi
indicating that her schedule and MSP scan for the date of injury revealed that she was not
delivering mail on Cottage Street as alleged. Appellant asserted that it was the Office’s

2

responsibility to obtain the schedule and scan and it erred in failing to investigate this matter
prior to issuing a decision.
The employing establishment submitted an October 29, 2009 letter from Mr. Lombardi,
who explained that the employing establishment used an MSP scan system to assist in the
efficiency of the letter carriers delivery time. Each carrier was assigned a hand held scanner and
throughout their delivery day they were required to scan barcodes on designated mailboxes.
Mr. Lombardi noted that appellant reported that she was injured on June 19, 2009 while
performing her duties at a specific residence, Cottage Street, on Route 13. The scanned carrier
report revealed that she was not on city Route 13 on June 19, 2009; rather, another employee was
assigned this route and appellant was on Route 8. Mr. Lombardi attached the June 19, 2009
MSP reports for appellant and her coworker to establish that she did not deliver mail on Cottage
Street.
In a November 15, 2009 statement, appellant advised that her job required her to assist
coworkers that were on vacation, sick or running behind on their route. She frequently received
calls from her superiors requesting that she assist other carriers. Appellant asserted that on
June 19, 2009 Mr. Spencer instructed her to assist Mr. Lorenzi with his mail route and that at
about 5:00 p.m. she met Mr. Lorenzi and he gave her part of Route 13 on Cottage Street. She
was “100 percent sure” that she scanned the route but must have forgotten since it was not
reflected on the scan report. On November 17, 2009 appellant’s attorney asserted that she was
on Cottage Street on the day of injury assisting her coworker with his route when she forgot to
scan while on the route.
In a November 24, 2009 letter, the Office requested the employing establishment provide
comments from a knowledgeable supervisor on appellant’s allegation that Mr. Spencer instructed
her to assist Mr. Lorenzi at the end of her mail route which encompassed part of Route 13 and
Cottage Street.
In a December 9, 2009 statement, Mr. Spencer advised that on June 19, 2009 appellant
did not work on Cottage Street as alleged. He stated that the MSP scan established that she was
not on Cottage Street that day; rather her coworker had delivered mail. Mr. Spencer attached the
June 19, 2009 MSP carrier reports.
In a December 11, 2009 statement, appellant indicated that on June 19, 2009 she punched
in at 10:00 a.m. and Mr. Spencer instructed her to assist her coworker at the end of her mail
route. She met Mr. Lorenzi on Church Street next to Cottage Street and began to deliver mail
around 4:54 p.m. Appellant had requested that he verify that she assisted him in delivering mail
on Cottage Street on June 19, 2009 but he was not sure and did not want to get involved. She
submitted documents related to her Equal Employment Opportunity (EEO) complaint against the
postmaster. Appellant also submitted copies of a personal calendar for June and July 2009,
which noted that she was injured on June 19, 2009 at 5:00 p.m.
In a December 22, 2009 statement, counsel indicated that there was only one relay box
for all the mail on Cottage Street. The MSP scan of appellant’s coworker revealed that he
scanned the relay box at 2:17 p.m. Appellant did not forget to scan the relay box on Cottage
Street; rather she did not have to scan the box because she received the mail directly from

3

Mr. Lorenzi who had previously scanned the box. Even though her scan did not show Cottage
Street, this did not prove that she was not there on June 19, 2009 when injured.
By decision dated January 5, 2010, the Office denied modification of the August 13,
2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 the Act, that the claim was
filed within the applicable time limitation of the Act, 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.”1 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.3 In some traumatic injury cases this
component can be established by an employee’s uncontroverted statement on the Form CA-1.4
An alleged work incident does not have to be confirmed by eyewitnesses in order to establish
that an employee sustained an injury in the performance of duty, but the employee’s statement
must be consistent with the surrounding facts and circumstances and her subsequent course of
action.5 A consistent history of the injury as reported on medical reports, to the claimant’s
supervisor and on the notice of injury can also be evidence of the occurrence of the incident.6
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.7 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
1

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

3

Elaine Pendleton, supra note 1.

4

John J. Carlone, 41 ECAB 354 (1989).

5

Rex A. Lenk, 35 ECAB 253, 255 (1983).

6

Id. at 255-56.

7

Dorothy M. Kelsey, 32 ECAB 998 (1981).

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probative value and will stand unless refuted by strong or persuasive evidence,8 an employee has
not met this burden when there are inconsistencies in the evidence such as to cast serious doubt
upon the validity of the claim.9
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence. To establish a causal relationship
between the condition, as well as any attendant disability, claimed and the employment event or
incident, the employee must submit rationalized medical opinion evidence, based on a complete
factual and medical background, supporting such a causal relationship.10
ANALYSIS
Appellant alleged that on June 19, 2009 she lifted a flat of mail out of her truck and
injured her left arm while delivering mail on Cottage Street. She did not stop work at the time of
the alleged injury or seek medical treatment. The Board finds that the claimed employment
incident did not occur as alleged.
Appellant asserted that she timely reported her injury to her supervisors Mr. Spencer and
Mr. Lombardi and she sought treatment on June 22, 2009 after her arm did not improve. She
initially stated that the incident occurred at a specific location on Cottage Street and asserted that
her supervisors would not produce an MSP scan to verify her presence there. When the
employing establishment provided the MSP scan showing that a coworker delivered mail on
Cottage Street, appellant asserted that on June 19, 2009 Mr. Spencer instructed her to assist him
at the end of her mail route. She met the coworker on Church Street next to Cottage Street and
began to deliver the mail around 4:54 p.m. However, the record does not support appellant’s
assertion. On June 24, 2009 Mr. Lombardi checked her MSP scans for June 19, 2009 which
showed that she did not deliver mail on the Cottage Street route that day. On October 29, 2009
Mr. Lombardi explained the scan system, noting that each carrier was assigned a handheld
scanner and was required to scan barcodes on designated mailboxes throughout the delivery day.
Although appellant reported being injured on Cottage Street on Route 13, Mr. Lombardi advised
that she was not on Route 13 or Cottage Street on June 19, 2009. Rather, she was assigned to
Route 8 and Route 15. The MSP carrier reports for June 19, 2009 revealed that a coworker was
the only carrier to deliver mail on Cottage Street. Similarly, in a December 9, 2009 statement,
Mr. Spencer reiterated that on June 19, 2009 appellant did not work on Cottage Street as alleged
and that the MSP scan showed that a coworker delivered the route. The Board notes that lack of
confirmation of the claimed incident cast doubt on the validity of appellant’s claim.
Appellant submitted differing statements with regard to whether she scanned the relay
box on Cottage Street on June 19, 2009. On November 15, 2009 she alleged that Mr. Spencer
had instructed her on June 19, 2009 to assist with the mail route. At approximately 5:00 p.m.,
appellant met her coworker and he gave her part of Route 13 on Cottage Street. She was “100
8

Robert A. Gregory, 40 ECAB 478 (1989).

9

Joseph A. Fournier, 35 ECAB 1175 (1984).

10

See Richard A. Weiss, 47 ECAB 182 (1995); John M. Tornello, 35 ECAB 234 (1983).

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percent sure” that she scanned the route but she must have forgotten. On November 17, 2009
appellant asserted that she had assisted her coworker but forgot to scan the relay box. In a
December 22, 2009 statement, she indicated that there was only one relay box on Cottage Street
and that she did not forget to scan it; rather she did not scan the box because her coworker had
scanned it at 2:17 p.m. and she subsequently received the mail directly from him.
Additionally, there were no witnesses to the alleged injury. While an injury does not
have to be confirmed by eyewitnesses in order to establish that an employee sustained an injury
in the performance of duty, the employee’s statement must be consistent with the surrounding
facts and the circumstances and her subsequent course of action.
While there are medical treatment notes from Dr. Ilyevsky beginning June 22 and 24,
2009 that provide some history of injury, he does not mention a date of injury of June 19, 2009,
rather he noted treating appellant on June 22, 2009 for shoulder pain after lifting a “mailbag.”
Similarly, on June 29, 2009 he noted the mechanism of injury was lifting a “mail bundle.” On
July 6, 2009 Dr. Snead noted that appellant experienced left shoulder pain after lifting a “heavy
box of mail” on June 19, 2009. These notes do not relate a history of lifting a flat of mail on
June 19, 2009 nor do they address the inconsistency in the evidence regarding where appellant
worked on June 19, 2009.
The circumstances of confirmation of the claimed incident and inconsistencies about the
time and place of injury cast serious doubt upon the validity of the claim. For these reasons, the
Board finds that appellant has not established that the June 19, 2009 incident occurred as alleged.
As appellant has not established that the June 19, 2009 incident occurred as alleged, it is not
necessary for the Board to consider the medical evidence regarding causal relationship.11
Consequently, appellant has not met her burden of proof in establishing her claim.
On appeal, appellant asserts that the Office relied too much on the MSP scans for
June 19, 2009 which show that she did not scan the relay box on Cottage Street on
June 19, 2009. She contends that the surrounding facts and circumstances and her subsequent
course of action are consistent with an injury at the time, place and in the manner alleged. As
noted, however, the record does not establish that appellant scanned the relay box on Cottage
Street; rather the evidence suggests that another carrier, Mr. Lorenzi, scanned the box at 2:17
p.m. There is no evidence that appellant was present at Cottage Street as alleged. The
employing establishment provided MSP carrier reports which support that only her coworker
delivered mail on Cottage Street. For the reasons noted, appellant has not met her burden of
proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury on
June 19, 2009 at the time, place and in the manner alleged.

11

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

6

ORDER
IT IS HEREBY ORDERED THAT the January 5, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 14, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East St. Louis, MO, Employer
__________________________________________

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

Docket No. 09-530
Issued: September 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 28, 2008 appellant filed a timely appeal from an October 21, 2008 decision
of the Office of Workers’ Compensation Programs regarding a schedule award for bilateral
lower extremity impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than a two percent impairment of the right lower
extremity and a four percent impairment of the left lower extremity, for which she received a
schedule award.
On appeal, appellant contends that her accepted injuries effectively prevent her from
working, as the employing establishment often does not have light-duty work available within
her medical restrictions.

FACTUAL HISTORY
The Office accepted that on or before December 23, 2004 appellant, then a 45-year-old
letter carrier, sustained bilateral calcaneal spurs and bilateral retrocalcaneal stress fractures in the
performance of duty.1 Under a previous claim, it accepted bilateral bunions with hallux valgus
deformity and plantar fasciitis.2 On May 19, 2003 Dr. Victor L. Horsley, an attending podiatrist,
performed a right bunionectomy and an Akin osteotomy with flexor tenotomy of the second toe
of the right foot. He performed a left bunionectomy with correction of a left fourth hammertoe
on August 18, 2003. Appellant required exostectomy and capsulotomy of the left first metatarsal
phalangeal joint and a right cheilectomy on March 1, 2004. On April 12, 2006 Dr. Horsely
performed bilateral proximal plantar fascial orthotripsy.3 He submitted periodic reports through
August 2007 noting work restrictions due to appellant’s chronic bilateral foot pain and antalgic
gait.
On March 6, 2008 appellant claimed a schedule award. In February 13, 2008 reports,
Dr. Horsley found that she had reached maximum medical improvement. He noted that surgery,
physical therapy and orthotics failed to relieve appellant’s chronic heel pain or correct her
apropulsive antalgic gait.
The Office requested that Dr. Horsely perform a schedule award assessment according to
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides). In a March 31, 2008 report, Dr. Horsley found that
appellant reached maximum medical improvement on April 12, 2006. He stated that she
experienced 8/10 pain at the first metatarsophalangeal joint bilaterally, with pain into the medial
longitudinal arch to the Achilles tendon insertion. Appellant also had pain at the posterior tibial
nerve bilaterally. Dr. Horsely found motion of the interphalangeal joint of the great toe limited
to 15/30 degrees bilaterally. The metatarsophalangeal joint of the great toe was limited to 45/50
degrees dorsiflexion and 10/30 degrees plantar flexion on the left and 20/50 degrees dorsiflexion
and 5/30 degrees plantar flexion on the right. All other lower extremity joints were within
normal limits bilaterally. Dr. Horsely found no weakness or atrophy of either lower extremity.
He noted that appellant also had functional equines with early heel lift bilaterally.
On September 23, 2008 the Office referred the medical record and a statement of
accepted facts to an Office medical adviser for review and rating of the percentage of permanent
impairment. In an October 1, 2008 report, the Office medical adviser reviewed the medical
record and statement of accepted facts. He applied Table 17-144 of the A.M.A., Guides to
1

The Office accepted these conditions under File No. xxxxxx233. It initially denied File No. xxxxxx233 by
decision dated July 22, 2005.
Following additional development, the Office accepted the claim on
October 20, 2005.
2

The Office accepted these conditions under File No. xxxxxx128. It doubled File No. xxxxxx233 with File No.
xxxxxx128 on February 22, 2006.
3

On May 18, 2006 the Office obtained a second opinion from Dr. John D. Krause, a Board-certified orthopedic
surgeon, regarding appellant’s work restrictions.
4

Table 17-14, page 537 of the fifth edition of the A.M.A., Guides is entitled “Toe Impairments.” For the great
toe, the two grading criteria are limitation of metatarsophalangeal extension and interphalangeal flexion.

2

Dr. Horsley’s findings for the right great toe, finding that limitation of the interphalangeal joint
to 15 degrees flexion equaled a two percent impairment and metatarsophalangeal dorsiflexion
limited to 45 degrees equaled a zero percent impairment. This resulted in a two percent
impairment of the right lower extremity. Regarding the left great toe, the medical adviser
determined that limitation of the interphalangeal joint to 15 degrees and dorsiflexion of the
metatarsophalangeal joint to 20 degrees equaled both equaled two percent impairments, resulting
in a four percent impairment of the left lower extremity.
By decision dated October 21, 2008, the Office granted appellant schedule awards for a
two percent permanent impairment of the right lower extremity and a four percent impairment of
the left lower extremity.
LEGAL PRECEDENT
The schedule award provisions of the Federal Employees’ Compensation Act5 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a mater which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office as a standard for
evaluation of schedule losses and the Board has concurred in such adoption.6
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.7
ANALYSIS
The Office accepted that appellant sustained bilateral hallux valgus deformity, bilateral
plantar fasciitis, bilateral calcaneal spurs and bilateral retrocalcaneal stress fractures, requiring
four surgical procedures from 2003 to 2006. Dr. Horsely, an attending podiatrist, submitted a
March 31, 2008 impairment assessment noting that, appellant had reached maximum medical
improvement. He found that the interphalangeal joint of the great toe limited to 15 degrees
flexion bilaterally. The metatarsophalangeal joint of the great toe was limited to 45 degrees
dorsiflexion on the left and 20 degrees dorsiflexion on the right.
An Office medical adviser reviewed Dr. Horsley’s reports on October 1, 2008. He
applied Table 17-14 of the A.M.A., Guides, pertaining to impairments of the great toe, to
Dr. Horsely’s findings. The medical adviser found that, according to Table 17-14, limitation of
5

5 U.S.C. §§ 8101-8193.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

Tammy L. Meehan, 53 ECAB 229 (2001).

3

the interphalangeal joint of the great toe to 15 degrees flexion bilaterally equaled a two percent
impairment of the each lower extremity. Appellant also had a two percent impairment of the left
lower extremity due to dorsiflexion of the metatarsophalangeal joint limited to 20 degrees. The
medical adviser therefore determined that appellant had a two percent impairment of the right
lower extremity and a four percent impairment of the left lower extremity.
The Board finds that the Office medical adviser used the appropriate portions of the
A.M.A., Guides to calculate the percentages of impairment awarded. The medical adviser
accurately applied the rating criteria to Dr. Horsely’s findings. The Board finds that the Office
medical adviser’s opinion is sufficient to represent the weight of the medical evidence.8
On appeal, appellant asserted that the accepted injuries often prevented her from working
due to a lack of light-duty work within her medical restrictions. The decision before the Board
on the present appeal is the October 21, 2008 schedule award. Appellant’s contentions regarding
light-duty work pertain to possible wage loss due to her accepted injury and are not relevant to
the issue of permanent impairment.9
CONCLUSION
The Board finds that appellant has not established that she sustained greater than a two
percent impairment of the right lower extremity and a four percent impairment of the left lower
extremity, for which she received a schedule award.

8

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

9

The Board noted that the amount payable pursuant to a schedule award does nor take into account the effect that
the impairment has on employment opportunities, wage-earning capacity, sports, hobbies or other lifestyle activities.
See Ruben Franco, 54 ECAB 496 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 21, 2008 is affirmed.
Issued: September 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 19-0863
Issued: November 4, 2019

Case Submitted on the Record

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

JURISDICTION
On March 15, 2019 appellant, through counsel, filed a timely appeal from a February 21,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the February 21, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish conditions causally
related to the accepted November 6, 2015 employment incident.
FACTUAL HISTORY
On November 16, 2015 appellant, then a 57-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on November 6, 2015, he sustained pain in his low back and right
buttocks when repairing damaged mail while in the performance of duty. He stopped work on
November 6, 2015.
OWCP received a November 19, 2015 note from Dr. Khyber Khan, a Board-certified
family practitioner, who indicated that appellant was “[o]ut of work until further notice.”
In a development letter dated December 9, 2015, OWCP informed appellant that he had
not submitted sufficient factual or medical evidence to establish his claim. It advised him of the
type of factual and medical evidence needed and provided a questionnaire for his completion.
OWCP afforded appellant 30 days to respond.
OWCP received a January 7, 2016 return to work notice (Form CA-3) advising that
appellant returned to full-time work without restrictions on December 22, 2015.
By decision dated January 11, 2016, OWCP denied the claim, finding that appellant had
not provided sufficient evidence to support the factual aspects of his claim. It noted that he did
not respond to the development questionnaire or provide a detailed description regarding the
alleged employment incident. OWCP concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
A November 7, 2015 hospital discharge summary from Dr. Prajesh Ghimire, a Boardcertified family practitioner, diagnosed back pain.
In a December 18, 2015 duty status report (Form CA-17), Dr. Khan diagnosed sciatica and
a bulging lumbar disc. He indicated that appellant could return to work on December 21, 2015.
In a December 31, 2015 report, Dr. Richard Jackson, a neurologist, noted that he saw
appellant for right leg pain. He diagnosed double crush syndrome of S1 radiculopathy and
piriformis syndrome.
On January 12, 2016 OWCP received appellant’s response to the development
questionnaire. Appellant noted that he reported his injury on November 10, 2015, four days after
the incident, because he had been in the hospital on medication. He explained that, while he was
working the damaged mail on November 6, 2015, he picked up a full tray of damaged flats and
turned to put them in a hamper. At that time, something “felt weird” in his lower back and his
back hurt. Appellant explained that it was close to quitting time, there was no supervisor present,
and he went home. He also noted that two individuals witnessed that he was in pain on
November 6, 2015, and asked him about his injury. Additionally, appellant indicated that one of
the individuals, D.U., helped him leave the building and walk to his car. He explained the

2

immediate effects of his injury included a sharp and severe pain in his lower back and right
buttocks.
On June 8, 2016 appellant, through counsel, requested reconsideration. In support thereof,
OWCP received diagnostic tests and hospital records from November 7 to 15, 2015, some of which
were illegible. In a November 7, 2015 note, Dr. Christopher Barsotti, an emergency medicine
specialist, noted that appellant presented with mild-to-moderate lower back pain which began the
prior day. He explained that appellant worked at the employing establishment, engaged in
moderate lifting of boxes, and his back pain worsened with movement. Dr. Barsotti found
intractable pain secondary to sciatica and diagnosed acute sciatica.
In a November 7, 2015 note, Dr. Khan advised that appellant presented to the emergency
room after having severe, right side lower back pain, which started the prior night. He indicated
that appellant related that he was at work when he felt a sharp pinch in his right lower back area
which radiated down his right leg. Dr. Khan diagnosed severe sciatica.
In a November 12, 2015 report, Dr. Jackson noted that appellant presented to the
emergency room with severe right side lower back pain, which began the prior night. He indicated
that appellant related that he was at work when he felt a sharp pain in his right buttock, which
radiated down his right leg. Dr. Jackson assessed classic pain syndrome associate with S1 nerve
root of gluteus maximus spasm and medial gastroc spasm. In a November 13, 2015 note, he
indicated that appellant was hospitalized for low back pain.
A November 8, 2015 computerized tomography (CT) scan of appellant’s lumbar spine,
read by Dr. Leonides T. Fernando, a Board-certified radiologist, revealed a L2-3 right paracentral
disc herniation, a suspected L4-5 central disc protrusion, L5-S1 degenerative disc disease, facet
arthrosis, and slightly narrowed left neural foramen.
OWCP also received physical therapy notes dated November 15, 2015, and nurses’ notes
dated November 7 and 15, 2015. It also received statements from appellant’s coworkers who
observed that he was in pain after the incident.
In a November 19, 2015 report, Dr. Khan noted that appellant was admitted to the hospital
on November 7, 2015, and discharged eight days later. He explained that appellant presented to
the emergency room following significant lower back discomfort “after bending over at work to
remove an item.” Dr. Khan saw appellant on December 3, 2015, and diagnosed sciatica. He saw
appellant again on December 18, 2015, and January 15, 2016 and diagnosed lumbago with sciatica
and related that appellant “acquired this injury at work while lifting a mail tray.”
By decision dated February 21, 2019, OWCP affirmed the January 11, 2016 OWCP
decision, as modified. It found that appellant had established that the November 6, 2015
employment incident occurred in the performance of duty as alleged, and that a medical condition
was diagnosed in connection with the employment injury. However, OWCP denied the claim,
finding that the medical evidence of record was insufficient to establish causal relationship. .

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish 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 of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
In order to determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP must first determine whether fact of injury has been established.8
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.9 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.10
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 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.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish conditions
causally related to the accepted November 6, 2015 employment incident.

4

See supra note 2.

5

See D.C., Docket No. 19-0363 (issued July 18, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); S.P., 59 ECAB 184 (2007).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Bonnie A. Contreras, 57 ECAB 364 (2006).

10
B.M., Docket No. 17-0796 (issued July 5, 2018); David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB
354 (1989).
11

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

M.K., Docket No 19-0428 (issued July 15, 2019; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

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Dr. Khan provided December 18, 2015 and January 15, 2016 reports in which he noted that
appellant “acquired this injury at work while lifting a mail tray.” He diagnosed lumbago with
sciatica. While Dr. Khan generally attributed the diagnosed conditions to the employment
incident, the Board has held that a physician must provide a reasoned opinion as to whether the
employment incident caused or contributed to appellant’s diagnosed medical conditions.13 He did
not explain how the mechanism of the accepted incident would have physiologically caused the
diagnosed condition.14 Dr. Khan’s December 18, 2015 and January 15, 2016 reports are therefore
insufficient to establish the claim.
None of Dr. Khan’s remaining medical reports of record offered an opinion regarding the
cause of appellant’s low back condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship.15 As such these reports are insufficient to establish causal relationship.
In reports dated November 12 and 13, 2015, Dr. Jackson related that appellant was at work
when he felt a sharp pain in his right buttock. He assessed classic pain syndrome with spasm and
low back pain. The Board has held that “pain” and “spasm” are symptoms and not diagnoses.16
As these reports do not diagnose an actual medical condition causing appellant’s symptoms, they
lack probative value and are insufficient to establish appellant’s claim.
The November 7, 2015 reports from Drs. Ghimire and Barsotti, and the December 31, 2015
report from Dr. Jackson provided diagnoses, but did not offer a rationalized medical opinion
regarding the cause of the diagnosed conditions and are therefore insufficient to establish
appellant’s claim.17
The Board notes that OWCP also received reports from nurses and physical therapists in
support of appellant’s claim. These reports, however, are of no probative value as nurses and
physical therapists are not considered physicians as defined under FECA.18
Finally, appellant submitted diagnostic testing reports in support of his claim. The Board
has held that diagnostic reports lack probative value as they do not provide an opinion on causal
relationship between appellant’s employment duties and a diagnosed condition.19 As such, these
reports are also insufficient to establish appellant’s claim.

13

See D.C., Docket No. 19-0363 (issued July 18, 2019); John W. Montoya, 54 ECAB 306 (2003).

14

C.C., Docket No. 19-0059 (issued May 29, 2019).

15

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

16

V.B., Docket No. 19-0643 (issued September 6, 2019).

17

See supra note 12.

18

See S.S., Docket No. 18-1356 (issued May 21, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.6 (2006) (lay
individuals such as nurses, physician assistants, and physical therapists are not competent to render a medical opinion
under FECA). See also M.M., Docket No. 16-1617 (issued January 24, 2017).
19

See S.G., Docket No. 17-1054 (issued September 14, 2017).

5

Therefore, as the medical evidence of record is insufficient to establish that appellant’s
conditions were causally related to the accepted November 6, 2015 employment incident, the
Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish conditions
causally related to the accepted November 6, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. PEACE CORPS, Nkubu, Kenya, Employer
__________________________________________

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

Docket No. 08-2453
Issued: September 17, 2009

Case Submitted on the Record

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

JURISDICTION
On September 15, 2008 appellant filed a timely appeal from a July 2, 2008 decision of
the Office of Workers’ Compensation Programs that denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related injury on November 8, 1999.
FACTUAL HISTORY
On May 7, 2000 appellant, then a 31-year-old volunteer, filed a Form CA-1, traumatic
injury claim, alleging that he sustained a bruised spine when he was thrown against a metal bar
while riding a minibus on a rough road in Kenya on November 8, 1999.1 His volunteer service
began in September 1999 and ended in December 2002. Appellant filed a second traumatic
1

The employing establishment did not forward this claim form to the Office. However, by report dated July 22,
2005, it acknowledged that the claim had been submitted.

injury claim for this incident on July 12, 2005.2 In an attached statement, he reported that he
worked in a rural Kenyan village and that the back injury left him in pain for several weeks but
not enough to warrant a trip to Nairobi for medical treatment. Appellant described the conditions
in Kenya, noting that he traveled by bicycle or local transport buses while in the Peace Corps.
Over his two years of service, he had numerous urological and kidney tests and was diagnosed
with chronic prostatitis. Appellant saw an urologist upon his return to the United States and, in
2004, was treated by Dr. Ronald M. Laub, Board-certified in anesthesiology, for pain
management, who advised that bulging discs and chronic prostatitis caused similar symptoms
and that a magnetic resonance imaging (MRI) scan performed in July 2004 demonstrated a
bulging L5-S1 disc. He noted that epidural injections relieved his back pain but that it was
aggravated by light exercise. Appellant attributed his current back condition to the November 8,
1999 incident. He also alleged that his bicycle and travel over rough road conditions aggravated
his back condition.
By letter dated July 25, 2005, the Office informed appellant of the evidence needed to
support his claim and asked that the employing establishment respond. It submitted medical
records, including appellant’s preemployment physical examination on January 18, 1999
indicating that he had a history of low back strain in 1985. The employing establishment clinic
notes dated November 21 and 22, 1999 noted appellant’s complaints of low-grade fever, joint
aches, abdominal cramps and diarrhea. A November 24, 2000 clinic note reported appellant’s
complaints of back and pelvic pain and provided a history that he injured his back in a minibus
one-year prior. On November 27, 2000 Dr. Robert C. Davidson, area medical officer, noted a
two-week history of pelvic pain and diagnosed prostatitis. In December 2000 and January 2001,
appellant was seen for gastrointestinal problems and general malaise. On February 27, 2001
Dr. Davidson described appellant’s urological symptoms and treatment up to that date.
In February 2001, appellant had a urological consultation and chronic prostatitis was
diagnosed. He continued to have pelvic symptoms and was treated for chronic bacterial
prostatitis. By report dated August 11, 2001, Dr. Davidson noted that appellant advised that
feelings of forcing urine had returned with some occasional pain and that he had injured his back
in a minibus. Appellant described recurrent fatigue, midsection discomfort and low-grade fever
with slight general pain and noted that he fell off a ladder and hurt his left knee and lower back
the previous week. On examination, Dr. Davidson noted a boggy prostate with urethral
discharge and a positive stool. He diagnosed chronic prostatitis. A November 15, 2002 report
noted appellant’s description that, in June 2002, he was thrown over the handlebars of a bicycle,
injuring his left hand ring finger and right wrist. In close-of-service medical evaluations on
November 15, 2002, appellant provided a history that his back was injured in a minibus.
Dr. Davidson noted a history of a vehicle accident in 2000, reinjure recently, with moderate
soreness, occasional stomach pain and chronic prostatitis, in remission, diagnosed chronic
epididymitis and recommended a urology consultation.
By report dated March 20, 2003, Dr. Jeffrey A. Moody, a Board-certified urologist, noted
that appellant had a two-year history of right scrotal pain and occasional positive urine and
2

The record indicates that appellant has a second claim, adjudicated under file number xxxxxx335 for a
November 10, 2000 injury, with accepted conditions of lumbago and prostatitis. He indicated that he filed for his
back condition under this claim, but that it was rejected by the Office.

2

semen cultures. He diagnosed apparently chronic right epididymitis. In a June 23, 2004 report,
Dr. Laub noted appellant’s history of prostatic pain and, in 2000, having been struck in the back
with an iron bar on a public vehicle. Following this injury, appellant began to develop low back
pain in association with testicular and saddle pain that was nearly completely relieved with
Celebrex. He recommended an MRI scan.3 A July 19, 2004 MRI scan of the lumbar spine
demonstrated Grade 1 spondylolisthesis at L5-S1 secondary to bilateral pars defects, diffuse
bulging degenerated L5-S1 disc with no definite nerve root compression and slight hypertrophy
of multiple facets, greatest at L4-5. On August 10, 2004 and June 28, 2005 Dr. Laub performed
epidural injections. In an undated letter to appellant’s congressional representative, he noted
appellant’s report that he injured his back in Kenya and had experienced back pain since.
Dr. Laub noted the MRI scan findings and that appellant had a diminished S1 reflex of the left
ankle and advised that prostatitis-like symptoms could be caused by a bulging disc. He stated
that appellant was most likely misdiagnosed by the employing establishment and that his
symptoms had been caused by the bulging disc.
In a July 22, 2005 report, Dr. David L. Hammer, the employing establishment chief of
clinical programs, noted that appellant had served in Kenya from September 23, 1999 until
December 2, 2002. He advised that a review of appellant’s medical record showed a long and
persistent history of prostatitis and nothing relevant to a back injury except a claim form filled
out in May 2000. Dr. Hammer opined that the disc bulge diagnosed in 2004 was not related to
appellant’s volunteer service, noting that he had a normal evaluation on close of service. An
attached problem list advised that appellant was diagnosed with an upper respiratory infection
and bacterial diarrhea in November 1999, presumptive giardiasis in December 1999 and
prostatitis in November 2000.
By decision dated August 29, 2005, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to establish that his volunteer service contributed to
his claimed back condition.
On June 2, 2006 appellant requested reconsideration. He advised that he had been in
Kenya from July 16 to August 10, 2005 and was now responding to the July 25, 2005 Office
development letter. Appellant described his volunteer duties and noted that he initially tried to
obtain treatment for his back condition through his chronic prostatitis claim but, upon
recommendation by the Office, filed a new claim for the November 8, 1999 back injury.4 He
stated that he aggravated his back in February 2005 when demonstrating proper bent-knee squat
technique to students in his weight lifting club and, in June 2005, aggravated his back while
doing light-yard work. Appellant was seen by his primary care physician for these
aggravations.5 He also noted that he is a mountaineer and had climbed numerous Colorado
peaks and Mount Kenya, was a mountain biker, skier, snowshoe and former assistant gym
3

Dr. Laub later corrected the date of the injury to 1999.

4

Appellant noted that the Office authorized the July 2004 MRI scan and August 2004 epidural injection but
denied the December 2004 epidural injection.
5

Appellant is a middle school teacher and sponsors the weight lifting club.

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manager and had always been in excellent shape. Appellant also provided an illness history,
copies of medical records and a screening report for pain management dated June 23, 2004. In a
February 5, 2005 report, Dr. Mark Walton, a Board-certified osteopath specializing in family
practice, noted that appellant injured his lower back while lifting weights causing
lumbosacral/sacroiliac pain. He diagnosed acute lumbar myositis/strain. In a June 14, 2005
report, Dr. Vernon Rubick, a Board-certified osteopath specializing in family practice, noted
appellant’s complaints of low back pain. He diagnosed degenerative disc disease. In a May 17,
2006 report, Dr. Laub advised that appellant was under his care for groin and back pain related to
an injury he suffered in Kenya. He noted the MRI scan findings and opined that appellant’s
groin pain, previously diagnosed as prostatitis was “in fact probably” referred pain from an L5S1 disc injury caused by a motor vehicle accident that occurred in Kenya while he was a
volunteer.
On October 11, 2005 Dr. Alan Bickel, a Board-certified urologist noted appellant’s
history of prostatitis.6 He diagnosed interstitial cystitis. In an October 24, 2005 report,
Dr. Bickel noted that appellant had symptoms of interstitial disease during his volunteer work in
Kenya of dull lower back, abdominal and genital pain spreading to the right hip which were
classic for interstitial cystitis (prostatitis). He further noted that appellant had laboratory work
consistent with interstitial cystitis and that he had reported a public vehicle accident. Dr. Bickel
advised that the back injury did not cause appellant’s interstitial cystitis but could aggravate the
condition.
In a July 5, 2006 letter to appellant’s congressional representative, Dr. Laub noted
appellant’s report of the November 8, 1999 injury while riding in a minibus. Dr. Laub described
appellant’s symptoms and treatment and diagnosed lumbar disc displacement, lumbar disc
degeneration, lumbar stenosis and testicular pain, opining that they were consistent with the
reported injury on November 8, 1999 when he was thrown against a protruding metal bar that
caused vertebra compression resulting in disc material bulging out in the L5-S1 region. Dr. Laub
again opined that appellant’s condition was misdiagnosed as prostatitis.
By decision dated October 24, 2006, the Office denied modification of the August 25,
2005 decision. It found the medical evidence insufficient to establish his claim.
On October 9, 2007 appellant requested reconsideration and submitted a publication
regarding interstitial cystitis. On September 12, 2007 Dr. Moody advised that he began seeing
appellant in March 2003, and had not seen him since December 2003. He advised that physical
examination and testing did not indicate the presence of active epididymitis or prostatitis and he
referred appellant to Dr. Laub, who diagnosed a bulging lumbar disc on an MRI scan. Dr.
Moody stated that “it is definitely possible that lower back injury can lead to nerve
injury/irritation that can lead to symptoms that will mimic chronic prostatitis or epididymitis.
By letter dated January 14, 2008, the Office requested that Dr. Laub provide an
explanation as to how the November 8, 1999 minibus incident caused appellant’s bulging disc at
L5-S1 when the MRI scan and other reports indicated that it was degenerative in nature.
Dr. Laub did not respond.
6

Dr. Bickel was an Office referral physician in appellant’s prostatitis claim. Supra note 2.

4

In a July 2, 2008 decision, the Office denied modification of the prior decisions.
LEGAL PRECEDENT
Section 10.730 of Office regulations provides that any injury sustained by a Peace Corps
volunteer or volunteer leader while abroad shall be presumed to have been sustained in the
performance of duty and any illness contracted during such time shall be presumed to be
proximately caused by the employment. However, this presumption will be rebutted by evidence
that the illness is shown to have preexisted the period of service abroad or the injury or illness
claimed is either a manifestation of symptoms of, or consequent to, a preexisting congenital
defect or abnormality. If the presumption that an injury or illness was sustained in the
performance of duty is rebutted, the claimant has the burden of proving by the submittal of
substantial and probative evidence that such injury or illness was sustained in the performance of
duty with the Peace Corps. The claimant may then be entitled to compensation if he or she
meets the burden of proving by the submittal of substantial, probative and rationalized medical
evidence that the illness or injury was proximately caused by factors or conditions of Peace
Corps service, or that it was materially aggravated, accelerated or precipitated by factors of
Peace Corps service. While Peace Corps volunteers are entitled to a presumption that any injury
sustained while abroad or illness contracted is presumed to be proximately related to the
employment, the presumption will not arise if no injury or illness is diagnosed. Without a firm
medical diagnosis it is not possible to ascertain whether the condition was preexisting or
congenital.7
ANALYSIS
The evidence establishes that appellant served in the Peace Corps in Kenya from
September 1999 to December 2002. While Peace Corps volunteers are entitled to a presumption
that any injury sustained while abroad or illness contracted is presumed to be proximately related
to the employment, the presumption will not arise if no injury or illness is diagnosed. Without a
firm medical diagnosis it is not possible to ascertain whether the condition was preexisting or
congenital.8 On May 7, 2000 appellant submitted a traumatic injury claim, alleging that he
sustained a bulging disc at L5-S1 caused by a 1999 incident in which he hit his spine on a rod
while riding local transportation in Kenya. The Board finds, however, that the medical evidence
of record does not establish that appellant sustained a bulging disc or back condition causally
related to his Peace Corps service.
The medical evidence contemporaneous with the claimed November 1999 incident did
not mention a bruised spine or any other back condition but rather discussed a low-grade fever,
joint aches, abdominal cramps and diarrhea. While a November 2000 treatment note reported
symptoms of back and pelvic pain and obtained a history that appellant injured his back on a
minibus one-year prior, prostatitis was diagnosed. Appellant had positive laboratory findings
and was diagnosed with chronic prostatitis while serving in the Peace Corps. At no time was a
back condition diagnosed during his Peace Corps service. It was not until July 2004, one-and-a7

20 C.F.R. § 10.730; see S.S., 59 ECAB ____ (Docket No. 07-1553, issued November 1, 2007).

8

Id.

5

half years after his Peace Corps service ended, that an MRI scan demonstrated a bulging L5-S1
disc. Dr. Laub advised that appellant was most likely misdiagnosed by the employing
establishment and that his symptoms all along had been caused by the bulging disc. However, he
did not address the prior treatment for prostatitis or how the November 1999 minibus incident
caused or contributed to a bulging disc. In assessing medical evidence, the weight of such
evidence is determined by its reliability, its probative value and its convincing quality. The
opportunity for and thoroughness of examination, the accuracy and completeness of the
physician’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of an opinion are facts, which determine the weight to be
given to each individual report.9 Dr. Laub did not state that he had reviewed the medical records
from appellant’s Peace Corps service or note that he had a history of rigorous physical activities
including mountain climbing and skiing. He was asked by the Office to explain how the
November 8, 1999 minibus incident caused the bulging disc at L5-S1 and review an MRI scan
that indicated the condition was degenerative in nature. However, Dr. Laub did not respond.
The Board finds the reports of Dr. Laub are insufficient to establish that appellant’s back
condition was caused by the November 1999 minibus incident.
In a February 5, 2005 report, Dr. Walton noted that appellant injured his back lifting
weights. Dr. Rubick, in a June 14, 2005 report, diagnosed degenerative disc disease. Neither
physician referenced appellant’s prior Peace Corps service or advised that his back condition was
caused by a November 1999 accident. In a July 22, 2005 report, Dr. Hammer noted his review
of appellant’s Peace Corp medical records and advised that these showed that he had a long and
persistent history of prostatitis but nothing relevant to a back injury except a May 2000 claim
form. He further noted that appellant had a normal physical examination on close of service. In
an October 11, 2005 report, Dr. Bickel advised that appellant had symptoms of and laboratory
work consistent with interstitial cystitis or prostatitis during his service as a volunteer in Kenya.
He noted that a back injury did not cause the interstitial disease but could aggravate it. None of
these physicians provided an opinion that appellant sustained a back condition while in the Peace
Corps or that his current back condition was caused by the November 1999 minibus incident and
are therefore insufficient.
Appellant submitted a publication regarding interstitial cystitis. The Board has long held
that excerpts from publications have little probative value in resolving medical questions unless a
physician shows the applicability of the general medical principles discussed in the articles to the
specific factual situation at issue in the case.10 There is no such evidence in this case.
Moreover, the medical evidence does not address how bicycling or other travel during
appellant’s Peace Corps service caused or aggravated his condition.11 Accordingly, appellant has

9

Michael S. Mina, 57 ECAB 379 (2006).

10

Roger Payne, 55 ECAB 535 (2004).

11

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

6

failed to meet his burden of proof to establish that he sustained a back condition while serving in
the Peace Corps.12
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a back condition causally related to factors of his Peace Corps service.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2008 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: September 17, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

S.S., supra note 7.

7


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

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

Docket No. 15-309
Issued: April 22, 2015

Case Submitted on the Record

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

JURISDICTION
On November 24, 2014 appellant, through counsel, filed a timely appeal from a
November 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability beginning
December 14, 2013 causally related to his August 23, 2003 employment injury; and (2) whether
OWCP properly denied surgical authorization.
FACTUAL HISTORY
On August 27, 2003 appellant, then a 38-year-old customer service support supervisor,
filed a traumatic injury claim alleging that on August 23, 2003 he injured the left side of his
1

5 U.S.C. § 8101 et seq.

neck, shoulder, arm, and back when the vehicle in which he was riding was rear ended. OWCP
accepted the claim for cervical, thoracic, and lumbar strain and a recurrent abdominal herniation.
On November 3, 2003 appellant underwent incisional herniorrhaphies times two and a
small bowel resection. He returned to part-time employment on January 4, 2004 and to his usual
employment on February 25, 2004.2
Appellant received treatment after his injury from Dr. Arthur W. Duran, an osteopath
who is Board-certified in family medicine.3 On April 25, 2013 Dr. Duran evaluated appellant for
right arm pain. He stated:
“This is revolving back from a work[ers’] comp[ensation] injury back in 2003.
[Appellant] was diagnosed with cervical disc disease with significant nerve root
compression at the C6-7 dermatome. He was sent for epidurals, he had complete
resolution of his pain, this was approximately two years ago. [Appellant] now has
recurrent symptoms, exactly the same as they were in 2011. He has neck pain
with pain radiating into the right arm along the C6-7 dermatome with some
decreased grip strength and weakness into the right hand.”
Dr. Duran diagnosed cervical disc disease with C6-7 cervical radiculopathy. He stated, “I do
believe [that] this is a direct result of [appellant’s] motor vehicle accident back from 2003 and
should be included under work[ers’] compensation.”
On July 18, 2013 Dr. Duran noted that appellant had undergone a series of epidurals, but
continued to experience pain, numbness, and weakness of the C6-7 dermatome in the right arm.
He diagnosed “[c]ervical disc disease with nerve root compression, C6-7 with severe intractable
pain.”
An MRI scan study of the cervical spine performed on July 31, 2013 showed moderate
diffuse degenerative disc and joint disease with mild spinal stenosis at C6-7 and nerve root
compression at C5-6.
On October 28, 2013 Dr. Keith L. Jackson, an orthopedic surgeon, evaluated appellant
for right hand and neck pain, and tingling and numbness in three fingers of the right hand for

2

In impairment evaluations dated December 18, 2006 and April 3, 2007, Dr. Robert P. Durning, a Board-certified
orthopedic surgeon, diagnosed neck pain, mild left C7 nerve root dysfunction, and decreased left shoulder
movement. By decision dated September 18, 2007, OWCP granted appellant a schedule award for a three percent
permanent impairment of the left upper extremity.
3

In a report dated October 3, 2003, Dr. Duran diagnosed a recurrent abdominal wall herniation and cervical
radiculopathy from a “whiplash-type injury of the cervical spine” due to the August 23, 2003 motor vehicle
accident. On January 19, 2007 he noted that subsequent to his accident appellant experienced “chronic neck, pain,
intermittent headaches as well as restricted range of motion.” Dr. Duran related that a cervical magnetic resonance
imaging (MRI) scan study showed a C3-4 disc protrusion and a mild disc bulge at C5-6 “with bilateral spur
formation producing mild ventral flattening of the thecal sac.” He recommended chiropractic treatment. On
July 20, 2011 Dr. Duran diagnosed improved cervical radiculopathy after epidural injections and lumbar
radiculopathy.

2

10 years following a motor vehicle accident. He noted that appellant obtained pain management
with steroid injections, but that the effectiveness of this treatment was diminishing.
In a report dated October 28, 2013, Dr. James D. Kang, a Board-certified orthopedic
surgeon, discussed appellant’s history of a motor vehicle accident 10 years ago. He
recommended a laminectomy and fusion at C3-7.
On November 8, 2013 OWCP received a request to authorize a cervical laminectomy and
fusion.
In a report dated November 21, 2013, Dr. Duran reviewed Dr. Kang’s recommendation
for surgery. He diagnosed radiculopathy of the right arm due to C5-6 and C6-7 disc
degeneration. Dr. Duran stated, “I do believe that all nonoperative measurements have been
exhausted and [appellant’s] only step left is that of surgical intervention.” He further opined, “I
do believe that [appellant’s] cervical disc disease is a direct result of his motor vehicle accident
in 2003 and that truly this is [his] only option at this point in time. I do feel the surgery is
medically necessary….”
On November 27, 2013 OWCP referred appellant to Dr. Manhal Ghanma, a Boardcertified orthopedic surgeon, for a second opinion evaluation.
On December 8, 2013 Dr. Duran advised that appellant was disabled from November 24
to December 24, 2013 due to his August 23, 2003 work injury.
In a report dated December 19, 2013, Dr. Ghanma noted that appellant was a passenger in
the back seat of a Ford Focus that was rear-ended by a Chevy Suburban going about 50 to 60
miles an hour. Appellant had to be cut out of the totaled vehicle. Dr. Ghanma diagnosed
resolved cervical, thoracic, and lumbar strains and resolved recurrent abdominal herniations due
to appellant’s August 23, 2003 motor vehicle accident. He noted:
“It is difficult to relate [appellant’s] current cervical spinal stenosis to the work
injury of his claim, since he likely developed this independent of the work injury.
A cervical sprain alone would not likely have resulted in cervical spinal stenosis
10 years after a neck injury.
“There are some older studies that indicate that individuals with similar injury
may have a slightly higher likelihood of developing spinal stenosis than those
without such injury. However, these studies were completed 30 and 40 years ago,
and would not stand up to the current scrutiny for peer-reviewed medical
materials.”
Dr. Ghanma found that the cervical fusion from C3 to C6 was warranted, but not as a result of
the employment injury. He opined that appellant could perform his usual employment.
On December 31, 2013 appellant filed a claim for compensation from December 14
to 27, 2013.

3

By letter dated January 3, 2014, OWCP provided Dr. Duran with a copy of Dr. Ghanma’s
report and requested that he address whether he concurred with his opinion.
On February 4, 2014 appellant underwent a cervical laminectomy at C3-4, C4-5, C5-6,
C6-7 and a posterior cervical fusion at C3-7.
In a decision dated February 5, 2014, OWCP denied appellant’s claim for compensation
from December 14 to 27, 2003. It further found that the medical evidence was insufficient to
show that he required surgery causally related to his accepted work injury.
On February 7, 2014 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
In a report dated February 19, 2014, Dr. Duran reviewed Dr. Ghanma’s report and his
conclusion that appellant’s current condition was not due to his 2003 motor vehicle accident. He
noted that appellant did not have cervical pain or radiculopathy before his motor vehicle
accident. Dr. Duran stated:
“Over approximately a 10-year period of time, unfortunately [appellant’s]
symptoms progressed and he had further degeneration in the cervical spine
resulting in stenosis, as well as, nerve root compression. It is of my medical
opinion that the traumatic neck injury from 2003 ultimately led to these changes
in his cervical spine. I am basing this off of the fact that, prior to the motor
vehicle accident, [appellant] had no neck issues whatsoever. It was a severe
injury at that time resulting in severe neck pain and restricted range of motion,
which ultimately resolved over a significant period of time with extensive
physical therapy. It is well known that trauma at this level can ultimately lead to
changes over time in the cervical spine, which can ultimately lead to stenosis
leading to radicular symptomatology into the upper extremities. At this point in
time, due to [appellant’s] severe right arm pain and weakness and the fact that
[he] is requiring chronic narcotic medications to control his pain, I do not believe
that he is capable of performing his work duties. Therefore, it is my opinion that
his recent diagnosis of cervical disc disease, as well as, cervical spinal stenosis
should be allowed on his claim and that the above work restrictions are
appropriate as he is unable to perform his duties at work at this time….”
At the telephone hearing, held on August 6, 2014, appellant’s counsel argued that
Dr. Ghanma’s reports are consistently unfavorable to claimants. He also maintained that there
was a conflict in medical opinion.
By decision dated November 3, 2014, an OWCP hearing representative affirmed the
February 5, 2014 decision.
LEGAL PRECEDENT -- ISSUES 1 & 2
A “recurrence of disability” means an inability to work after an employee has returned to
work caused by a spontaneous change in a medical condition, which resulted from a previous

4

injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4
Appellant has the burden of establishing by the weight of the substantial, reliable, and
probative evidence a causal relationship between his recurrence of disability and his employment
injury.5 This burden includes the necessity of furnishing medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.6
Section 8103 of FECA7 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation.8
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11
ANALYSIS -- ISSUES 1 & 2
OWCP accepted that on August 23, 2003 appellant sustained cervical, thoracic, and
lumbar strains, and a recurrent abdominal herniation in a motor vehicle accident. Appellant
underwent incisional herniorrhaphies on November 3, 2003. He resumed part-time employment
on January 4, 2004 and full-time employment without restrictions on February 25, 2004.
4

20 C.F.R. § 10.5(x).

5

Carmen Gould, 50 ECAB 504 (1999).

6

Mary A. Ceglia, 55 ECAB 626 (2004).

7

Supra note 1.

8

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

9

Joseph P. Hofmann, 57 ECAB 456 (2006); James R. Bell, 52 ECAB 414 (2001).

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

5

On August 25, 2013 Dr. Duran, appellant’s attending physician, diagnosed cervical disc
disease with nerve root compression at C6-7, which he attributed to the 2003 employmentrelated motor vehicle accident. On November 8, 2013 OWCP received a request to authorize a
cervical fusion. In a report dated November 21, 2013, Dr. Duran reviewed the opinion of
Dr. Kang recommending a C3-7 laminectomy and fusion. He again related that appellant
sustained cervical disc disease due to the 2003 motor vehicle accident and asserted that the
surgery was medically necessary.
In a report dated December 19, 2013, Dr. Ghanma, an OWCP referral physician,
discussed appellant’s work injury and diagnosed a resolved recurrent abdominal herniation and
resolved cervical, thoracic, and lumbar strains. He opined that he was unable to relate the
stenosis of the cervical spine to the work injury and found that a cervical sprain would not cause
stenosis. Dr. Ghanma advised that the requested C3 to C6 fusion was necessary, but unrelated to
the employment injury.
On February 19, 2014 Dr. Duran reviewed Dr. Ghanma’s report and disagreed with his
conclusions. He indicated that appellant did not have neck problems prior to the injury and
found that the injury was sufficiently severe to lead to spinal changes over time, including
stenosis and radiculopathy. Dr. Duran opined that appellant was disabled from employment.
The Board finds that a conflict exists between Dr. Duran and Dr. Ghanma regarding
whether appellant required a cervical laminectomy and fusion as a result of his August 23, 2003
employment injury and whether he was disabled due to his work injury beginning
December 14, 2013. Section 8123(a) of FECA provides that, if there is a disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.12 On remand,
OWCP should refer appellant to an appropriate specialist for an impartial medical evaluation to
determine whether he required a cervical fusion as a result of his August 23, 2003 employment
injury and to address whether he was disabled on or after December 14, 2013 as a result of his
accepted injury. After such further development as deemed necessary, it should issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

5 U.S.C. § 8123(a); S.E., Docket No. 14-963 (issued August 13, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: April 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 21-1185
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 15, 2021 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2021, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 9, 2021 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she suffered a “traumatic injury” on February 18, 2021 when she was
robbed at gun point by two male suspects while in the performance of duty. On the reverse side
of the claim form the employing establishment acknowledged that she was injured in the
performance of duty and that its knowledge of the facts of her injury was consistent with her
statements. Appellant stopped work on February 19, 2021.
A February 18, 2021 police report noted that appellant was robbed at gun point by two
male suspects who fled the scene.
In a development letter dated March 12, 2021, OWCP informed appellant that it had
received no medical evidence in support of her traumatic injury claim. It advised her of the type
of factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP also requested a narrative medical report from appellant’s treating physician,
which contains a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to submit the necessary evidence. Appellant did not submit a response.
By decision dated April 15, 2021, OWCP denied appellant’s traumatic injury claim,
finding that she had not established the factual component of her claim, as she had not provided
evidence or a statement explaining how she was injured as a result of the alleged employment
incident. It noted that she had not responded to the March 12, 2021 development letter. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 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. 6

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on the employee’s
statements in determining whether a prima facie case has been established. 10 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2021, as alleged.
In her Form CA-1, appellant indicated that she was robbed at gunpoint on February 18,
2021 by two male suspects, which was confirmed by a police report of even date. However, she
did not provide an explanation as to how she was injured or what body part was injured as a result
of the alleged employment incident. In a development letter dated March 12, 2021, OWCP
requested that appellant submit clarifying information describing how and when her claimed injury
occurred and provided a questionnaire for her completion. However, appellant did not complete
and return the March 12, 2021 development questionnaire. Therefore, she has failed to present a
clear factual statement in the record describing the specific alleged employment-related incident
alleged to have caused or contributed to her claimed medical condition.12 As she has not responded
to the request for factual information to describe the employment incident and circumstances

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

See D.C., Docket No. 18-0082 (issued July 12, 2018).

3

surrounding her alleged injury, the Board finds that appellant has not established that a traumatic
injury occurred in the performance of duty on February 18, 2021, as alleged.13
The Board further finds that, because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged. 14 Thus, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.

13

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5