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

)
)
)
)
)
)
)
)

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

Docket No. 15-1489
Issued: December 18, 2015

Case Submitted on the Record

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

JURISDICTION
On June 30, 2015 appellant filed a timely appeal from an April 20, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she was entitled
to disability compensation for the periods March 18 through 19, and May 5 through 23, 2014 due
to her accepted April 9, 2007 employment injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its April 20, 2015 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1). Appellant may
submit this evidence to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On April 10, 2007 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on April 9, 2007 she sustained a left knee and leg injury when
she was exiting her Long Life Vehicle (LLV) to deliver a package and felt a snap and sharp pain
in her left knee. She stopped work and sought medical treatment on the date of injury.
Appellant returned to limited duty on April 24, 2007.
By decision dated May 25, 2007, OWCP accepted the clam for left knee strain.
Appellant stopped work on May 27, 2007 because there was no available work. She underwent
numerous left knee, ankle, and heel surgeries during the course of her treatment. From
August 20, 2007 through October 23, 2009, OWCP expanded the claim to include left ankle
sprain, deep venous thrombosis,3 Achilles tendinitis, contracture of tendon, ankle, and foot joint
derangement, iliotibial band syndrome, trochanteric bursitis, bilateral Achilles tendinitis,
bilateral plantar fibromatosis, and left fifth toe hammer toe. Appellant received compensation
for medical benefits and wage loss as a result of her accepted injuries.
On May 8, 2010 appellant returned to full-time, limited duty. She stopped work on
October 5, 2010 and underwent right open plantar fasciotomy and gastrocnemius recession.
On September 14, 2011 appellant returned to modified duty working 25 hours per week.
She stopped work completely on April 13, 2012 due to an exacerbation of her accepted
conditions. The employing establishment was unable to accommodate appellant’s restrictions.
On December 4, 2012 OWCP referred appellant to Dr. William Dinenberg, a Boardcertified orthopedic surgeon, for a second opinion examination regarding the nature and extent of
her disability. Dr. Dinenberg reviewed appellant’s medical history, summarized diagnostic
reports, and provided findings on physical examination. He opined that appellant was still
suffering from residuals of the April 9, 2007 employment injury. Dr. Dinenberg explained that
objectively, there remained medial and lateral joint line tenderness on the left knee, tenderness
over the greater trochanteric bursa on the left, tenderness in the anterolateral corner of her left
ankle, and tenderness over the plantar fascia bilaterally. He reported that appellant’s condition
prevented her from performing her regular work duties as a rural carrier, but that she could
resume work of primarily sitting duties with permanent restrictions of no walking or standing
greater than one hour total within an eight-hour workday. Dr. Dinenberg concluded that she did
not require additional medical treatment and had reached maximum medical improvement.
Appellant continued seeking medical treatment with Dr. Chester Jangala, her attending
On September 17, 2013 Dr. Jangala referred appellant to Dr. Edwin C.
physician.4
Brockenbrough, a Board-certified surgeon, for a lower extremity venous evaluation.
Dr. Brockenbrough’s diagnostic testing revealed no evidence of venous abnormalities which
would explain her lower extremity symptoms.
3

OWCP accepted deep venous thrombosis as an employment-related condition based on the August 18, 2008
report of Dr. Joan Sullivan, a Board-certified orthopedic surgeon and OWCP second opinion examiner.
4

Dr. Jangala is not Board-certified.

2

In a December 2, 2013 progress note, Dr. Jangala diagnosed chronic left ankle sprain post
multiple surgeries, left iliotibial band syndrome, and left hip bursitis. He reported that appellant
could work full time at a desk job and could not walk very much.
In a December 2, 2013 duty status report (Form CA-17), Dr. Jangala diagnosed ankle
sprain, meniscus, and bilateral plantar fasciitis. He reported that appellant could resume work
with restrictions of continuous sitting for 8 hours per day, continuous lifting for 8 hours per day,
and intermittent walking for .5 hours per day. Dr. Jangala further noted continuous upper body
use for eight hours per day which included pushing/pulling, simple grasping, fine manipulation,
and reaching above the shoulder. He restricted appellant from driving a vehicle, climbing,
bending, stooping, and kneeling during her employment duties. Dr. Jangala reported that
appellant’s restrictions were permanent and she required a sit-down job with two consecutive
days off per workweek.
On January 7, 2014 the employing establishment provided appellant with a limited-duty
job offer at the Everett, Washington Hub.5 It requested that she return the job offer as either
accepted or declined. Duties of modified assignment included sitting in an office chair with a
supportive back intermittently for eight hours per day with occasional standing, simple
grasping/pushing/ pulling of a computer mouse up to eight hours per day intermittently, fine
manipulation up to eight hours using a keyboard, contacting customers by telephone, light
typing, answering the telephone, and back office administrative assistance-type duties.
Appellant accepted the offer of modified assignment on January 10, 2014. She returned
to full-time modified duty on February 3, 2014.
In a March 7, 2014 progress note, Dr. Jangala reported that appellant complained of left
ankle, foot, knee, and hip pain. He further noted that appellant complained of pain in the left calf
in the last two weeks. Dr. Jangala diagnosed chronic ankle pain, iliotibial back syndrome, and
left leg bursitis. He noted that new work restrictions were being provided.
In a March 7, 2014 Form CA-17, Dr. Jangala provided the same work restrictions noted
in his December 2, 2013 Form CA-17.
In a March 17, 2014 lower extremity venous examination, Dr. Karl H. Kaufmann, Boardcertified in emergency medicine, reported that review of ultrasound and diagram testing revealed
no evidence of venous thrombosis in the lower extremities. He further explained that appellant’s
reported symptoms did not correlate with the venous examination findings.
In an April 7, 2014 progress note, Dr. Jangala reported that appellant complained of left
hip pain despite no new injury. He noted that her new job was located in Everett which required
her to drive 1.5 to 2 hours one way which appellant believed was the cause of her increased pain.
Dr. Jangala diagnosed sciatica and noted that appellant’s hip pain was largely gluteal.

5

Appellant resided in Maple Valley, Washington and was a rural carrier at the Maple Valley Post Office prior to
the employing establishment’s job offer in Everett, Washington.

3

In an April 21, 2014 progress note, Dr. Jangala reported that appellant was having issues
with her long commute which required her to drive five hours daily and resulted in severe left
leg, hip, and lower back pain. He diagnosed chronic left ankle instability and sprain, iliotibial
band syndrome, and left hip bursitis. Dr. Jangala provided restrictions limiting appellant’s
commute to 20 minutes daily.
In an April 21, 2014 Form CA-17, Dr. Jangala diagnosed ankle sprain, meniscus, and
bilateral plantar fasciitis. He provided appellant with permanent work restrictions for a sit-down
job only of continuous sitting for 8 hours per day, continuous lifting for 8 hours per day,
intermittent walking for .5 hours per day, and continuous upper body movements for 8 hours per
day. Dr. Jangala reported that appellant could not drive on the job and could spend no more than
20 minutes daily commuting to work. In an April 21, 2014 prescription note, he reported that
appellant had to stop working because she could not commute four hours daily. Dr. Jangala
stated that she was off work beginning April 21, 2014 until a job became available closer to her
home.
By letter dated April 25, 2014, Dr. Jangala reported that appellant’s long work commute
had aggravated her medical condition. He recommended she stop work at her current job as she
was unable to sit in a car for more than 20 minutes, regardless of who was driving.
By letter dated May 12, 2014, the employing establishment informed OWCP that
Dr. Jangala’s April 21, 2014 report restricted appellant from driving more than 20 minutes to
work. It noted that appellant had been driving to and from her accepted job since February
without any issues. The employing establishment further noted that appellant was capable of
taking public transportation to work and requested OWCP review the suitability of her job.
In a May 19, 2014 Form CA-17, Dr. Jangala restricted appellant from commuting more
than 20 minutes daily.
On May 23, 2014 appellant submitted claim for compensation forms (Form CA-7) for
leave without pay from March 17 through 19, 2014 requesting eight hours per day for doctor’s
visits. She also requested leave without pay for the period of May 5 through 23, 2014, noting the
reason for leave as permanent limited duty.
By letter dated May 27, 2014, OWCP informed appellant that the medical evidence of
record was insufficient to support her claim for compensation and was advised to submit medical
evidence establishing disability for the periods claimed.
In a May 27, 2014 e-mail correspondence, Angela Emery, a postal supervisor, reported
that she left a voicemail for appellant informing her that there was an employee who commuted
from Spanaway and would be willing to carpool with her so that she would not have to drive.
By letter dated June 26, 2014, Michael J. Watson, appellant’s representative at the time,
reported that he was submitting a report from Dr. Jangala which established appellant’s claim for
disability compensation. He further noted that appellant’s limited-duty job offer made no
mention of the total 4.5 hours of driving time daily required for her commute which was well
beyond the norm. Mr. Watson argued that appellant’s job should be deemed unsuitable and
stated that he would be submitting evidence as to the length of the commute each way based on
4

the actual times of day appellant sat in traffic. He explained that, while the actual distance of the
commute was less than 50 miles one way, traffic at commute times required appellant to drive 2
hours to work and 2.5 hours from work.
In a medical report received on June 26, 2014, Dr. Jangala reported that appellant had
chronic multiple orthopedic problems due to her April 9, 2007 employment injury and had been
troubled by severe left lateral ankle problems. Appellant attempted to commute to work, over
two hours daily, for several weeks but had to stop because of her chronic ankle instability which
made driving difficult and unsafe for an extended distance. Dr. Jangala noted that when
appellant initially accepted her job in Everett he did not think it was a good idea, but she was
determined to get back to work. However, the commute had been an issue as appellant
experienced pain in her ankle, back, and hip. Dr. Jangala reported that she did okay on her job
except for pain and increased ankle instability for the first few hours after her long commute.
By decision dated July 9, 2014, OWCP denied appellant’s claim for wage-loss
compensation for the periods of March 18 through 19, 2014 and May 5 through 23, 2014 finding
that the medical evidence failed to establish that she was disabled as a result of her accepted
conditions for the specific periods claimed. It noted that Dr. Jangala did not provide objective
medical evidence to support his medical findings on a clinical basis that appellant could not
commute as a passenger. This decision also noted that there was no medical report of record to
support medical treatment on March 18 or 19, 2014.
An August 5, 2014 letter was provided from appellant who stated that she was the only
person in the Everett office who commuted from Maple Valley where she resided.
On August 27, 2014 appellant, through her representative, requested reconsideration of
OWCP’s decision. Mr. Watson argued that appellant’s January 7, 2014 limited-duty job offer
should be deemed unsuitable based on Dr. Jangala’s medical opinion. He noted enclosure of a
new report from Dr. Jangala who explained that appellant presented with objective findings of
foot and ankle edema and increased foot drop. Mr. Watson further noted enclosure of a
statement from appellant who explained that she was the only person in her office who lived in
Maple Valley, Washington and thus, carpooling was not an option.
Dr. Jangala’s medical report received on August 27, 2014 was repetitive of his prior
report submitted on June 26, 2014. He explained that he had been treating appellant on a
frequent basis and had noted increased ankle and foot edema since her return to work. On
April 21, 2014 Dr. Jangala examined appellant following her commute and noted a great deal of
pain with increased ankle and foot edema and foot drop. At that time he recommended that she
discontinue her commute and provided her with a shot of Toradol. Dr. Jangala examined
appellant again on May 19, 2014 noting progress as her ankle and foot edema had decreased. He
recommended that she not commute for a long period of time as this would increase her pain and
edema.
On December 1, 2014 OWCP received another July 10, 2014 progress note from
Dr. Jangala. Dr. Jangala noted chronic ankle pain and recent foot drop. He reported that
appellant had been off work the past month and had improved due to not driving and the Toradol
shots. Dr. Jangala explained that appellant’s 2.5-hour commute was too long and she had

5

experienced a flare up of iliotibial band syndrome and plantar fasciitis. He further noted that
appellant was at high risk for deep venous thrombosis and her plantar fasciitis had come back
after returning to work. Dr. Jangala reported that she had to stop commuting due to swelling and
pain after driving long hours. He diagnosed chronic ankle sprain and iliotibial band syndrome.
By decision dated December 3, 2014, OWCP affirmed the July 9, 2014 decision finding
that the medical evidence of record failed to establish that appellant was disabled on the dates
claimed as a result of her April 9, 2007 employment injury.6
On March 18, 2015 appellant, through her representative, again requested
reconsideration. Mr. Watson stated that a newly submitted medical report was being provided
from Dr. Jangala who disagreed with OWCP’s December 3, 2014 findings. He argued that
Dr. Sullivan had provided an August 18, 2008 report which confirmed that deep vein thrombosis
was aggravated by long periods of sitting. Thus, the long commute coupled with the actual time
spent at the job substantiated the medical rationale provided. Mr. Watson further argued that
Dr. Jangala’s April 21, 2014 report and January 20, 2015 report substantiated his decision to take
her off work on April 21, 2014 based on objective findings and resulting consequential injuries.
On March 18, 2015 OWCP received an April 21, 2014 report from Dr. Jangala. In this
report Dr. Jangala noted that appellant returned to limited duty in January 2014 and commuted
2.5 hours from Maple Valley to Everett. Since the start of her commute, appellant experienced
severe pain in her ankle, foot, hip, and back as well as increased edema in her ankle and foot.
She tried working for several weeks, but could not continue due to her chronic ankle instability.
Dr. Jangala provided findings on examination of diffuse left hip tenderness, decreased sensation
of left foot, iliotibial band diffuse edema and instability, diffuse left gastrocnemius, edema left
ankle, and increased foot drop. He explained that appellant was at high risk for developing deep
venous thrombosis. Dr. Jangala diagnosed ankle and foot joint derangement, requested she
discontinue her current job, and restricted her to no more than 20 minutes of commuting daily.
In reports dated January 20 and March 16, 2015, Dr. Jangala noted current complaints
and that appellant also had complications due to development of bilateral plantar fasciitis and
bilateral Achilles tendinitis. Appellant complained of sitting for long periods of time which
caused her ankle to swell and pain in her left hip, left ankle, and back. She further stated that her
pain was worse with activity. Dr. Jangala reiterated his diagnoses and recommended that
appellant continue with her work restrictions.
In a letter received on March 18, 2015, Dr. Jangala reported that appellant had chronic
orthopedic problems due to her April 9, 2007 employment injury. He noted appellant’s accepted
diagnoses and opined that due to these conditions she had difficulty ambulating, sitting and
standing for long periods of time, and driving her car. Dr. Jangala explained that appellant’s
long commute aggravated her current medical conditions and put her at high risk of developing
deep venous thrombosis, increased edema, and pain. He requested review of Dr. Sullivan’s
August 18, 2008 report as support for his medical opinion.

6

The Board notes that OWCP initially issued a decision on November 21, 2014 affirming the July 9, 2014
OWCP decision. OWCP reissued this decision on December 3, 2014.

6

By decision dated April 20, 2015, OWCP affirmed the December 3, 2014 decision
denying appellant’s claim for disability compensation for the periods March 18 through 19,
2014, and May 5 through 23, 2014. It found that the medical evidence failed to establish that she
was disabled as a result of her accepted April 9, 2007 employment injuries for the specific
periods claimed.
LEGAL PRECEDENT
Under FECA,7 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.8 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.9
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proven by a preponderance of the reliable, probative,
and substantial medical evidence.10 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability
to work, without making an objective finding of disability, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.11 The Board
will not require OWCP to pay compensation for disability without any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.12
OWCP’s procedures provide that wages lost for compensable medical examination or
treatment may be reimbursed.13 It notes that a claimant who has returned to work following an
accepted injury or illness may need to undergo examination or treatment and may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.14 As a rule, no more than four hours of
compensation or continuation of pay should be allowed for routine medical appointments.

7

Supra note 1.

8

See Prince E. Wallace, 52 ECAB 357 (2001).

9

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

10

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

11

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

12

Id.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).
14

See also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

7

Longer periods of time may be allowed when required by the nature of the medical procedure
and/or the need to travel a substantial distance to obtain the medical care.15
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
was entitled to disability compensation for the periods March 18 through 19 and May 5
through 23, 2014.
OWCP accepted that appellant sustained a left knee strain, left ankle sprain, deep venous
thrombosis, Achilles tendinitis, contracture of tendon, ankle and foot joint derangement, iliotibial
band syndrome, trochanteric bursitis, bilateral Achilles tendinitis, bilateral plantar fibromatosis,
and left fifth hammer toe as a result of her April 9, 2007 employment injury. Appellant
underwent numerous left knee, ankle, and heel surgeries and received medical and wage-loss
compensation benefits. The employing establishment utilized Dr. Jangala’s December 2, 2013
Form CA-17 to offer a full-time, limited-duty assignment in conjunction with her work
restrictions. Appellant accepted an offer of modified assignment on January 10, 2014 and
returned to full-time modified duty on February 3, 2014. On May 23, 2014 she claimed leave
without pay for the periods March 18 through 19, 2014 for wage loss due to medical
appointments, and May 5 through 23, 2014 due to disability.16
With respect to the disability compensation claimed for the period March 18 through 19,
2014, there is no evidence of record that appellant underwent medical treatment on either of
those dates, and no opinion from a physician stating that appellant was disabled as a result of her
accepted April 9, 2007 employment injuries on those dates. The Board will not require OWCP
to pay compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.17
In support of her claim for disability compensation for the period May 5 through 23,
2014, appellant submitted reports dating from December 2, 2013, prepared by Dr. Jangala, her
treating physician. The Board finds that the opinion of Dr. Jangala is not well rationalized.18
In a December 2, 2013 Form CA-17, Dr. Jangala reported that appellant could resume
full-time work at a sit-down job with restrictions of continuous sitting for 8 hours per day,
continuous upper body movements for 8 hours per day, and intermittent walking for .5 hours per
15

Id.

16

The Board notes that appellant received four hours of wage-loss compensation for attending a medical
appointment on March 17, 2014. The Board notes that appellant could be entitled to wage-loss compensation for
attending medical appointments. The record reflects that she may have received treatment on May 19, 2014, but
appellant has not alleged wage loss due to medical treatment on May 19, 2014. The record does not indicate that she
received treatment, testing, or therapy on other dates of claimed compensation.
17

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

18

R.W., Docket No. 13-656 (issued July 16, 2013).

8

day.19 His subsequent March 7, 2014 Form CA-17 was identical to the December 2, 2013 Form
CA-17 which was used to provide appellant an offer of modified assignment.
On April 21, 2014 Dr. Jangala restricted appellant from returning to work due to her long
commute. The Board has previously explained that if a claimant’s accepted condition worsens
such that she can no longer commute to work, this would constitute a recurrence of disability.
On the other hand if the commute itself caused an increase in disability this would not be
compensable as driving to and from work is not a work factor under FECA.20 The Board has
explained that to be of probative value the medical evidence of record must explain why the
claimant is disabled due to the commute.21
The reports of Dr. Jangala do not establish that appellant was disabled due to an inability
to commute for the period May 5 through 23, 2014. The Board notes initially that it appears that
Dr. Jangala did not have an accurate description of appellant’s travel to and from work as he
noted different durations of her commute in his various medical reports. Dr. Jangala’s April 7,
2014 progress note reported driving times of 1.5 to 2 hours one way while his April 21, 2014
note reported 5 hours of daily driving time. He failed to provide a consistent account of how
long appellant spent driving and the frequency and movements which would result in disability
attributed to the accepted April 7, 2009 injuries.
Furthermore, Dr. Jangala did not provide a fully-rationalized explanation as to why
appellant was disabled on the claimed dates other than generally noting pain and limited
functional ability. His April 25, 2014 letter recommended she stop work at her current job as she
was unable to sit in a car for more than 20 minutes, regardless of who was driving. However,
Dr. Jangala failed to explain why appellant could not be a passenger in a vehicle for more than
20 minutes given that he concurrently deemed her capable of performing 8 hours of continuous
sit-down work. Other than generally noting that appellant suffered severe discomfort from long
periods of commuting to work, he did not did not provide a rationalized explanation as to why
she was disabled during the claimed period.22 Dr. Jangala’s commuting restriction contradicts
the very work restrictions he deemed appellant capable of performing, eight hours continuous
sitting. He does not explain why appellant can sit for eight hours at work, but then cannot sit in a
car during a much shorter commute.
Dr. Jangala’s June 26, 2014 report noted that appellant attempted to commute to work for
several weeks, but had to stop because of her chronic ankle instability which made driving
difficult and unsafe for an extended period of time. The Board notes that it is unclear why
driving would cause an aggravation of her left lower extremity injury as appellant must utilize
the right foot to drive her vehicle.

19

Dr. Jangala restricted appellant from employment-related driving duties as her prior assignment involved
driving an LLV to deliver mail.
20

See K.E., Docket No. 13-296 (issued June 6, 2013).

21

See generally Betty S. Thompson, Docket No. 01-2039 (issued July 2, 2002).

22

A.J., Docket No. 13-614 (issued July 9, 2013).

9

In an August 27, 2014 report, Dr. Jangala explained that his April 21, 2014 examination
revealed a great deal of pain with increased ankle and foot edema and foot drop. He noted that
appellant was incapacitated beginning April 21, 2014 as a result of her work-related injuries yet
did not specifically address her capacity for work or the reasons why she was unable to continue
her duties other than generally noting ankle instability and pain. Dr. Jangala noted that he
examined appellant again on May 19, 2014, revealing progress as her ankle and foot edema had
decreased since she stopped working one month prior. However, the record does not contain a
progress note dated May 19, 2014 to corroborate Dr. Jangala’s findings. Moreover, the Board
has held that an opinion that a condition is causally related because the employee was
asymptomatic before the injury is insufficient, without adequate rationale, to establish causal
relationship.23 Dr. Jangala’s opinions pertaining to commuting restrictions due to increased pain
are also insufficient to establish disability compensation as the Board has held that pain is a
description of a symptom and not a diagnosed medical condition.24
Regarding appellant’s then representative’s claim that appellant’s commute caused an
aggravation of deep vein thrombosis, Dr. Jangala failed to provide detailed examination findings
and provided no objective evidence to support disability on the dates in question due to this
condition.25 His opinion is therefore of limited probative value as it is unsupported by the
objective medical evidence of record. Dr. Brockenbrough’s September 17, 2013 diagnostic
report found no evidence of venous abnormalities which would explain appellant’s lower
extremity symptoms. This was corroborated by Dr. Kaufmann’s March 17, 2014 report.
Dr. Brockenbrough found that review of ultrasound and diagram findings revealed no evidence
of venous thrombosis in the lower extremities. Thus, commuting restrictions imposed for this
condition pertain to fear of developing venous thrombosis which is not a current condition
supported by the medical evidence of record or the most recent diagnostic testing.26 The Board
has long held that prophylactic work restrictions do not establish a basis for wage-loss
compensation.27 A fear of future injury is not compensable under FECA.28
The Board notes that Dr. Jangala’s March 18, 2015 letter references Dr. Sullivan’s
August 18, 2008 second opinion examination as support for his argument. However, this report
is irrelevant to appellant’s disability claim for the periods in question. The Board has held that

23

M.R., Docket No. 14-11 (issued August 27, 2014); T.M., Docket No. 08-975 (issued February 6, 2009);
Michael S. Mina, 57 ECAB 379 (2006).
24

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).
25

T.G., Docket No. 13-76 (issued March 22, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

26

E.J., Docket No. 12-1948 (issued June 5, 2013).

27

D.N., Docket No. 14-657 (issued June 26, 2014).

28

Manuel Gill, 52 ECAB 282, 286 n.5 (2001).

10

stale medical evidence cannot form the basis for current evaluation of residual symptomology or
disability determination.29
Given the above deficiencies, Dr. Jangala’s medical reports are insufficient to establish
that appellant was disabled from March 18 through 19, 2014 and May 5 through 23, 2014 as a
result of her April 9, 2007 employment injury.30 As there is no rationalized medical evidence
contemporaneous with the periods of claimed disability, appellant failed to meet her burden of
proof to establish entitlement to disability compensation.31
Subsequent medical reports dated January 10, 20 and March 16, 2015 from Dr. Jangala
reveal that appellant complained of continued chronic hip pain, chronic left iliotibial band pain,
left ankle foot instability, pain of the contracture tendon, and bilateral Achilles tendinitis pain.
These reports are not probative as to whether appellant was disabled for the period May 5
through 23, 2014, as they do not address the dates in question.32
As appellant has not submitted probative medical evidence that she was disabled from
work due to her commute, she has not established entitlement to wage-loss benefits for the
period May 5 through 23, 2014.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she was entitled to disability
compensation for the periods March 18 through 19, 2014, and May 5 through 23, 2014.

29

See Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two
years old deemed invalid basis for disability determination).
30

S.T., Docket No. 11-1316 (issued January 25, 2012).

31

Tammy L. Medley, 55 ECAB 182 (2003

32

Supra note 16.

11

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2015
Washington, DC

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

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

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

12


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

)
)
)
)
)
)
)
)

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

Docket No. 21-0596
Issued: August 31, 2021

Case Submitted on the Record

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

JURISDICTION
On March 3, 2021 appellant filed a timely appeal from October 1 and 8, 2020 merit
decisions 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
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective October 2, 2020, as he refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether appellant has met his
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 8, 2020 decision, appellant submitted 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.

burden of proof to establish entitlement to continuation of pay (COP) for the period August 5
through September 1, 2020.
FACTUAL HISTORY
On July 22, 2020 appellant, then a 55-year-old heavy truck driver, filed a traumatic injury
claim (Form CA-1) alleging that on July 18, 2020 when picking up mail in his tractor trailer he
moved and maneuvered a manual dock plate and strained his back while in performance of duty.
OWCP accepted the claim for strain of muscle fascia and tendon of the lower back. Appellant
requested continuation of pay on July 22, 2020.
In reports dated July 27, August 4 and 13, 2020, Dr. Marc Thorpe, a Board-certified family
practitioner, treated appellant for a work-related injury that occurred on July 18, 2020 when he
was lifting a heavy dock plate. Findings on examination revealed back pain and tenderness of the
lower thoracic area through the lumbar spine. Dr. Thorpe diagnosed lumbosacral strain, initial
encounter and referred appellant for a magnetic resonance imaging (MRI) scan of the lumbar spine.
He released appellant to work with restrictions of lifting up to five pounds and no bending or
stooping on July 27, 2020. In injury status discharge instructions dated July 27 and August 4,
2020, Dr. Thorpe diagnosed lumbosacral strain and returned appellant to work with restrictions of
lifting up to five pounds and no bending or stooping. In form reports dated July 27, August 4 and
13, 2020, he noted that appellant sustained a work-related injury on July 18, 2020. Dr. Thorpe
diagnosed lumbosacral strain and affirmed that the diagnosed conditions were due to a workrelated injury. He returned appellant to work with lifting restrictions of five pounds and no bending
or stooping.
On August 17, 2020 OWCP accepted appellant’s claim for strain of the muscle, fascia and
tendon of lower back.
On August 5, 2020 the employing establishment offered appellant a position as a modified
tractor trailer operator. The duties included: surface visibility scanning for eight hours per day;
post surface visibility reporting for 1 to 2 hours per day; check surface visibility mobile devices
for latest updates for 1 to 2 hours per day; and safety talks in the postal vehicle service office for
30 minutes to 1 hour per day. The tour of duty was from 11:00 p.m. to 7:30 a.m. The physical
requirements included: no lifting over five pounds; no bending; and no stooping.
An MRI scan of the lumbar spine dated August 17, 2020 revealed mild multilevel
degenerative changes, straightening of the lumbar lordosis, broad-based disc protrusion with an
annular tear at L4-5, mild-to-moderate foraminal stenosis bilaterally, and mild foraminal stenosis
bilaterally at L2-3 and L3-4.
On August 18, 2020 appellant rejected the modified tractor trailer operator job offer. In a
separate statement, he indicated that he was unable to work the shift from because his wife had
underlying conditions that prohibited him from working those hours.
In injury status discharge instructions dated August 19, 2020, Dr. Thorpe diagnosed
annular tear of the lumbar disc and lumbosacral strain and returned appellant to work with
restrictions of lifting up to 10 pounds and no bending or stooping. In a form report dated

2

August 19, 2020, he noted that appellant sustained a work-related injury on July 18, 2020.
Dr. Thorpe diagnosed annular tear of the lumbar disc and lumbosacral strain and responded
affirmatively that the diagnosed conditions were due to a work-related injury. He returned
appellant to work with lifting restricted to 10 pounds and no bending or stooping.
In an August 19, 2020 report, Dr. Jeffery Crick, a family practitioner, recommended that
appellant avoid working the overnight shift from 12:00 a.m. to 6:00 a.m. because he was the
primary caregiver to his wife and needed to be present during the overnight sleeping hours due to
her condition.
By notice dated August 24, 2020, OWCP advised appellant that it had determined that he
refused or failed to report to the offered position as a modified tractor trailer operator. It informed
him that it had reviewed the offered position and found it was suitable and in accordance with the
medical restrictions provided by Dr. Thorpe’s August 4, 2020 report. Pursuant to 5 U.S.C. § 8106
(c)(2), OWCP afforded appellant 30 days to accept the position or provide adequate reasons for
refusal. It informed him that an employee who refuses an offer of suitable work without cause is
not entitled to wage-loss or schedule award compensation.
OWCP received additional evidence. On July 23, 2020 appellant was treated in the
emergency room by Dr. Anthony Richa, a Board-certified internist, for back pain. He reported an
onset of symptoms five days earlier when he was lifting and pulling at work and experienced low
back pain. Dr. Richa diagnosed acute back pain and low back sprain.3
In a report dated August 19, 2020, Dr. Thorpe treated appellant in follow up for a July 18,
2020 work injury and noted an MRI scan of the lumbar spine revealed a new annular tear at L4-5
with a disc protrusion. He diagnosed annular tear of the lumbar disc and lumbosacral strain.
Dr. Thorpe released appellant to work with restrictions of lifting up to 10 pounds and no bending
or stooping. In an August 28, 2020 duty status report (Form CA-17), he noted clinical findings of
limited range of motion of the lumbar spine and diagnosed acute low back pain. Dr. Thorpe noted
that appellant could return to work regular duty with a lifting restriction of 20 pounds.
Dr. Paul Roberts, a Board-certified family practitioner, treated appellant on September 3,
2020 for a long history of anxiety that recently increased due to his wife’s medical condition. He
indicated that appellant was his wife’s primary caregiver and she experienced panic attacks when
left alone at home in the evenings. Dr. Roberts advised that, since appellant was assigned the
12:00 a.m. to 6:00 a.m. shift, he has developed worsening anxiety. He recommended that appellant
be accommodated with an alternative shift that does not require him to be away from his spouse
from 12:00 a.m. to 6:00 a.m.
On September 9, 2020 Dr. Crick noted that appellant needed off work because he was the
caregiver to his wife from 12:00 a.m. to 6:00 a.m. daily. He indicated that appellant could not
work during this time because of his wife’s condition.

3

Appellant submitted reports from Dr. Thorpe dated July 27, August 4 and 13, 2020, form reports dated August 13
and 19, 2020, an MRI scan of the lumbar spine dated August 17, 2020, an August 19, 2020 note from Dr. Crick, a
copy of his statement refusing the modified job, and a copy of the job offer, all previously of record.

3

By decision dated October 1, 2020, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award benefits, effective October 2, 2020, based on his refusal of
suitable work. It explained that appellant’s treating physician, Dr. Thorpe’s August 4, 2020 report
indicated that appellant was partially disabled as a result of his employment injury, but that he
could work subject to restrictions of lifting up to five pounds and no bending or stooping. OWCP
further noted that Dr. Thorpe increased the lifting restriction to 10 pounds in his August 19, 2020
report and on August 28, 2020 provided lifting restrictions of 20 pounds. It found that
Dr. Thorpe’s reports provided a well-reasoned opinion as to appellant’s current work limitations
and the employing establishment offered him a job well within those restrictions.
By decision dated October 8, 2020, OWCP denied COP for the period August 5 through
September 1, 2020, finding that a limited-duty job offer was available to appellant that met his
work limitations and his refusal of the job offer was determined not to be justified. It noted that
appellant’s desire for another work schedule due to a family member’s condition was not a valid
reason for refusal under FECA. OWCP added that the denial of COP did not preclude him from
filing a claim for disability due to the effects of the claimed July 18, 2020 employment injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits.4 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, or secured for the employee is not entitled to compensation. 5 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable.6 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment.7
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of
showing that such refusal or failure to work was reasonable or justified.8 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.9

4

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).
5

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

6

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

7

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

8

20 C.F.R. § 10.517(a).

9

Id. at § 10.516.

4

The determination of whether an employee is physically capable of performing a modified
assignment is a medical question that must be resolved by medical evidence.10 OWCP’s
procedures provide that acceptable reasons for refusing an offered position include withdrawal of
the offer or medical evidence of inability to do the work or travel to the job.11 In a suitable work
determination, OWCP must consider preexisting and subsequently acquired medical conditions in
evaluating an employee’s work capacity.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective October 2, 2020, for refusing
an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
On August 5, 2020 the employing establishment offered appellant a position as a modified
tractor trailer operator and on August 24, 2020 OWCP determined that the position was suitable.
The duties of the position included surface visibility scanning for eight hours a day, post surface
visibility reporting for one to two hours a day, check surface visibility mobile devices for latest
updates for one to two hours a day, and safety talks in the postal vehicle service office for 30
minutes to 1 hour a day. The physical requirements of the position included no lifting over five
pounds, no bending, and no stooping. The tour of duty was from 11:00 p.m. to 7:30 a.m.
The Board finds that the August 6, 2020 job offer was within the restrictions as prescribed
by appellant’s treating physician, Dr. Thorpe. Dr. Thorpe released appellant to work with
restrictions of lifting up to five pounds and no bending or stooping.
The Board finds that OWCP properly accorded the weight of medical opinion to the reports
of Dr. Thorpe who opined that, while appellant required work restrictions including no lifting over
five pounds and no bending or stooping, he was capable of returning to work. The Board notes
that Dr. Thorpe, as appellant’s treating physician, had complete knowledge of the relevant facts
and had numerous opportunities to examine appellant and to evaluate the course of his condition.
Dr. Thorpe clearly opined that appellant could return to work subject to the restrictions set forth in
the report of August 4, 2020. His opinion, therefore, must be considered reliable. The Board finds
that Dr. Thorpe’s opinion with respect to appellant’s work limitations is based on a proper factual
background and is sufficient to establish that the position is medically suitable to her work
restrictions.13
Appellant submitted a September 3, 2020 report from Dr. Roberts who treated him for a
long history of anxiety that recently increased due to his wife’s medical condition. Dr. Roberts
10

M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-0319 (issued May 14, 2013).
12

See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).

13
See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (discussing the factors that bear on the probative value
of medical opinions).

5

indicated that appellant’s wife was having panic attacks when left alone at home in the evenings.
He advised that, since appellant was asked to work the overnight shift he had developed worsening
anxiety. Dr. Roberts recommended that appellant be accommodated with an alternative shift that
did not require him to be away from his spouse overnight.
The Federal (FECA) Procedure Manual indicates that, if medical reports document a
condition, which has arisen since the compensable injury and disables an employee from the
offered job, the job will be considered unsuitable, even if the subsequently acquired condition is
not employment related.14 However, Dr. Roberts’ report is insufficient to establish that the
position offered appellant was unsuitable as the physician did not provide a reasoned opinion
explaining how or why appellant’s diagnosed anxiety or emotional condition prevented him from
performing the modified job duties at the time his compensation was terminated.
Similarly, in a September 9, 2020 report, Dr. Crick noted that appellant needed off work
because he was the caregiver to his wife from 12:00 a.m. until 6:00 a.m. daily. The Board finds
that this report is insufficient to establish that the position offered appellant was unsuitable as the
physician did not explain how any specific diagnosed conditions prevented him from performing
the job duties of the modified position on or after August 6, 2020 when OWCP notified him of the
offered position.
The Board finds that OWCP properly followed its established procedures prior to the
termination of appellant’s compensation pursuant to 5 U.S.C. § 8106(c)(2), including providing
him with an opportunity to accept the position offered by the employing establishment after
informing him that his reasons for initially refusing the position were not valid.15
For these reasons, OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 2, 2020, because he refused an offer of suitable
work.16
LEGAL PRECEDENT -- ISSUE 2
Section 8118(a) of FECA authorizes COP, not to exceed 45 days, to an employee who has
filed a claim for a period of wage loss due to a traumatic injury with his or her immediate superior
on a form approved by the Secretary of Labor within the time specified in section 8122(a)(2) of

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(c)(7)
(June 2013).
15

See K.S., supra note 4; C.H., Docket No. 17-0938 (issued November 27, 2017).

16

See M.H., Docket No. 17-0210 (issued July 3, 2018).

6

this title.17 This latter section provides that written notice of injury shall be given within 30 days.18
The context of section 8122 makes clear that this means within 30 days of the injury.19
FECA’s implementing regulations provide in pertinent part:
“An employer shall continue the regular pay of an eligible employee without a
break in time for up to 45 calendar days, except when, and only when:
(a) The disability was not caused by a traumatic injury;
(b) The employee is not a citizen of the United States or Canada;
(c) No written claim was filed within 30 days from the date of injury;
(d) The injury was not reported until after employment has been terminated;
(e) The injury occurred off the employing agency’s premises and was
otherwise not within the performance of official duties;
(f) The injury was caused by the employee’s willful misconduct, intent to
injure or kill himself or herself or another person, or was proximately caused
by intoxication by alcohol or illegal drugs; or
(g) Work did not stop until more than 45 days following the injury.”20
The Board has held that section 8122(d)(3) of FECA,21 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because of
exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for COP.22 Thus, there is no provision in the law for excusing an employee’s failure
to file a claim within 30 days of the employment injury.23

17

Supra note 1 at § 8118(a).

18

Id.

19

C.C., Docket No. 18-0912 (issued July 11, 2019); J.S., Docket No. 18-1086 (issued January 17, 2019); Robert M.
Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).
20
20 C.F.R. § 10.220. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and
Initial Payments, Chapter 2.807.11 (June 2012).
21

Supra note 1 at § 8122(d)(3).

22

C.C., and J.S., supra note 19; William E. Ostertag, 33 ECAB 1925 (1982).

23

Id.; Dodge Osborne, 44 ECAB 849 (1993).

7

ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was not entitled to
continuation of pay.
By decision dated October 8, 2020, OWCP denied appellant’s request for COP for the
period August 5 through September 1, 2020 because he refused an offer of suitable work. It
explained that a limited-duty job offer was available to appellant that met his work limitations and
his refusal of the job offer was determined to be not justified and as a result he would not be entitled
to COP.
The Board notes that section 8106(c)(2) of FECA provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by, or secured
for the employee is not entitled to compensation.24 A claimant who refuses suitable work is not
entitled to further compensation, including payment of a schedule award, for the permanent
impairment of a scheduled member.25 However, this does not preclude appellant from obtaining
COP for the period prior to the termination for refusal of suitable work on October 1, 2020. The
Board thus finds that OWCP improperly denied appellant continuation of pay, as the denial was
not based on any of the categories outlined in section 10.220 of FECA’s implementing
regulations.26 Upon return of the case record, OWCP shall pay continuation of pay compensation
as set forth in this decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective October 2, 2020, as he refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds appellant has
established entitlement to continuation of pay.

24

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

25

D.S., Docket No. 08-885 (issued March 17, 2009); Sandra A. Sutphen, 49 ECAB 174 (1997).

26
20 C.F.R. § 10.220. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and
Initial Payments, Chapter 2.807.11 (June 2012).

8

ORDER
IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed. The October 8, 2020 decision is reversed and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: August 31, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZEN & IMMIGRATION SERVICES,
Laguna Niguel, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-1167
Issued: April 2, 2020

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 May 22, 2018 appellant filed a timely appeal from a December 29, 2017 merit decision
and an April 13, 2018 nonmerit 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 has met her burden of proof to establish an injury
due to the accepted September 9, 2017 employment incident; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 9, 2017 appellant, then a 65-year-old immigration officer, filed a traumatic
injury claim (Form CA-1) alleging that on September 9, 2017 she was attacked by a dog and
sustained a bite on her buttocks while in the performance of duty. On the same form, a coworker,
D.S., advised that she witnessed a German shepherd charge after appellant and corner her on a
porch.2 Appellant did not stop work. On September 18, 2017 she filed a separate Form CA-1
alleging that on September 9, 2017 she was handing out flyers in support of the Hurricane Harvey
surge capacity force at private residences in Houston, Texas, when a dog approached D.S. from
behind and bit her. Appellant noted that the dog then approached and attempted to bite her. She
indicated that the dog did not break her skin with a bite, but rather forcibly attempted to grab and
push her. Appellant advised that her supervisor recommended she be checked by medical
personnel for “possible dog bite and bruising.”3
In an October 11, 2017 development letter, OWCP advised appellant that she filed two
Forms CA-1 for the same injury and noted that the claim designated OWCP File No. xxxxxx980
would be deleted with all documents moved into OWCP File No. xxxxxx813. It requested that
she submit additional evidence in support of her claim, including a physician’s opinion supported
by a medical explanation as to how the reported September 9, 2017 incident at work caused or
aggravated a medical condition. OWCP also requested that appellant respond to a questionnaire
which posed various questions regarding the reported September 9, 2017 incident. It afforded her
30 days to submit the requested information. 4
On October 18, 2017 OWCP received a completed questionnaire in which appellant noted
that on September 9, 2017, while she and D.S. were canvassing a neighborhood in Houston, Texas,
she walked to the front door of a residence and knocked while D.S. remained in the driveway.
Appellant indicated that a dog came out of nowhere and bit D.S. on her left hip/buttock, after which
D.S. was able to escape outside the property. She reported that the dog approached her from
behind and struck out at her. Appellant indicated that the front door opened and the dog, which
continued to growl at her, was called into the house. She advised that she and D.S. were taken to
urgent care and that D.S. sustained bite wounds and bruising. Appellant indicated that her skin
was not broken by the dog’s bite but noted that nevertheless she was “viciously attacked from
behind.”5

2

OWCP assigned this claim OWCP File No. xxxxxx813.

3

Appellant did not stop work when she filed the second traumatic injury claim form, which was assigned by OWCP
as OWCP File No. xxxxxx980.
4

On October 11, 2017 OWCP requested that the employing establishment submit additional evidence within 30
days.
5
Appellant also submitted an undated citizen’s information card from the Harris County Sheriff’s Office which
noted a case number and an offense title of “dog bite.”

2

Appellant also submitted an unsigned September 9, 2017 general instructions document
from an emergency department which indicated that appellant had been evaluated on that date for
a dog bite by Dr. Saad Abdullah, Board-certified in emergency medicine.
By decision dated October 31, 2017, OWCP accepted that the September 9, 2017
employment incident occurred as described. However, it denied appellant’s traumatic injury
claim on the basis of her failure to establish the medical component of fact of injury because
“the medical evidence is not sufficient to establish that a medical condition was diagnosed in
connection with the claimed event and/or work factors.”
On December 22, 2017 appellant requested reconsideration of the October 31, 2017
decision.
In a December 18, 2017 statement, appellant indicated that, at the time of the
September 9, 2017 employment incident, she was only provided with a medical release form
from urgent care, but noted that she had since obtained medical evidence. She reported that she
lost no time from work due to the September 9, 2017 employment incident and was only
requesting that a medical bill related to the incident be paid.
In an October 27, 2017 e-mail, appellant requested that her team leader in Texas, S.M.,
provide additional details of the “dog bite” incident on September 9, 2017. She advised that,
because she “did not physically suffer a bite” like D.S., the workers’ compensation department
of the employing establishment was “not convinced” of her claim. Appellant requested a
statement from S.M. explaining what happened on September 9, 2017 and why it was important
for her to be “checked out for a dog bite.” In response, S.M. noted in an October 27, 2017 e-mail
that management initially could not assess whether appellant needed to see a physician, but that
it was later decided that referral for medical evaluation was necessary.6
In a September 9, 2017 report, Dr. Abdullah noted that appellant presented on
September 9, 2017 with a chief complaint of a “dog bite” on her buttock occurring on that date.
Appellant reported that she had no skin rash, dizziness, itching, fainting episodes, difficulty
breathing, swelling, drainage, or trouble swallowing. Dr. Abdullah noted findings on physical
examination of normal head, eyes, neck, cardiovascular system, and respiratory system.
Appellant’s back was normal without tenderness, all her skin was intact, her extremities were
atraumatic, and she did not exhibit any motor or sensory deficit. Dr. Abdullah noted that there
was no evidence of injuries to appellant’s back or buttock, provided a diagnosis of “dog bite,”
and discharged appellant from his care in good condition.
By decision dated December 29, 2017, OWCP denied modification of the October 31,
2017 decision. It noted that the medical evidence of record did not contain an actual medical
diagnosis connected with the accepted September 9, 2017 employment incident, i.e., being
approached and pushed by a dog.

6
Appellant also submitted a November 6, 2017 e-mail from her crew leader in Texas, E.H., who indicated that on
September 9, 2017 appellant and D.S. were bitten by a dog on their posteriors.

3

On January 19, 2018 appellant requested reconsideration of the December 29, 2017
decision.
In a statement dated January 8, 2018, appellant indicated that it was true she did not
suffer a bite mark on September 9, 2017, but she noted that this fact was not known at the time
of the incident. She asserted that on September 9, 2017 she and her coworker were physically
attacked and traumatized by a vicious dog as they were canvassing a neighborhood in Texas.
Appellant reported that she and her coworker were taken to urgent care and evaluated and that
only her coworker sustained bite marks on her posterior. She indicated that she did not know if
she had bite marks or scratches until she was examined by a physician who did not find puncture
wounds on her posterior.
Appellant also submitted a work travel summary noting that she incurred expenses in
Alabama from September 3 to 5, 2017 and in Texas from September 6 to 30, 2017.
By decision dated April 13, 2018, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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 period of FECA,7 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.8 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. 9
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.10 The second component is whether the employment incident caused a personal injury. 11
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

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).
10

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

11

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

4

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 incident. 12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an injury due
to the accepted September 9, 2017 employment incident.
Appellant submitted a September 9, 2017 report from Dr. Abdullah who advised that
appellant presented on September 9, 2017 with a chief complaint of a “dog bite” on her buttock
occurring on that date. He noted findings on physical examination of normal head, eyes, neck,
cardiovascular system, and respiratory system. Appellant’s back was normal without
tenderness, all her skin was intact, and there was no evidence of injuries to her back or buttock.
Dr. Abdullah diagnosed “dog bite” and discharged appellant from his care in good condition.
However, this report does not establish the medical component of fact of injury as appellant
clearly reported in an October 27, 2017 e-mail and other documents that she did not physically
suffer a bite on September 9, 2017.13 As appellant was not bitten, a diagnosis of dog bite cannot
be reasonably connected to the claimed incident. While it is factually accepted that appellant’s
coworker was bitten and the same dog approached appellant and pushed her, there was no
diagnosis in the case record connected with being approached or pushed by a dog. Accordingly,
Dr. Abdullah’s finding of dog bite is insufficient to satisfy appellant’s burden of proof with
respect to satisfying the medical component of fact of injury. 14
Appellant also submitted an unsigned September 9, 2017 general instructions document
from an emergency department which indicated that appellant had been evaluated on that date
for a dog bite by Dr. Abdullah. However, this report has no probative value with respect to the
underlying issue of this case because the Board has held that a report which has not been signed
by a physician within the meaning of FECA cannot be considered probative medical evidence
given its lack of proper identification. 15
Currently, there is no evidence of record that establishes a medical diagnosis in
connection with the accepted September 9, 2017 employment incident. Consequently, appellant
failed to establish that she sustained an injury due to that incident.16

12

J.L., Docket No. 18-1804 (issued April 12, 2019).

13

Appellant also indicated in September 18 and November 4, 2017 statements that her skin was not broken on
September 9, 2017. In a November 6, 2017 e-mail, appellant’s crew leader in Texas, E.H., indicated that on
September 9, 2017 appellant and D.S. were bitten by a dog on their posteriors. However, E.H. did not explain the
basis for this comment.
14

See P.S., Docket No. 18-1588 (issued March 5, 2019); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

15

R.C., Docket No. 18-1639 (issued February 26, 2019). Appellant submitted an undated citizen’s information
card from the Harris County Sheriff’s Office which noted a case number and an offense title of “dog bite.” However,
this document is of no probative value because it does not constitute medical evidence. See id.
16

See supra notes 11 and 12.

5

On appeal appellant asserts that her claim should have been accepted by OWCP as she
was in the performance of duty and was instructed to seek medical treatment after the incident.
As noted above, there is no evidence of record that establishes a medical diagnosis in connection
with the accepted employment incident. Consequently, appellant failed to establish that she
sustained an employment injury on September 9, 2017, as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.18
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 19 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 20 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 21
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record22 and the submission of evidence or argument which

17

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
18
20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
19

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original co ntested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicat ed by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
20

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
22

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

6

does not address the particular issue involved does not constitute a basis for reopening a case. 23
While a reopening of a case may be predicated solely on a legal premise not previously considered,
such reopening is not required where the legal contention does not have a reasonable color of
validity.24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on January 8, 2018,25 but she did not
establish that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. In a January 8, 2018 statement
submitted with her request for reconsideration, appellant indicated that it was true she did not
suffer a bite mark on September 9, 2017, but she noted that this fact was not known at the time of
the incident. Appellant asserted that she and her coworker were physically attacked by a dog as
they were canvassing a neighborhood in Texas. She advised that she did not know if she had bite
marks or scratches until she was examined by a physician who did not find puncture wounds on
her posterior. These assertions do not show a legal error by OWCP or constitute a new and relevant
legal argument. OWCP has accepted the occurrence of an employment incident on September 9,
2017 and appellant’s statements merely revisit an aspect of her claim, i.e., the factual component
of fact of injury, which has already been established. Accordingly, the Board finds that appellant
is not entitled to a review of the merits based on either the first or second requirement under 20
C.F.R. § 10.606(b)(3).
In support of her request for reconsideration, appellant also submitted a work travel
summary noting that she incurred expenses in Alabama from September 3 to 5, 2017 and in Texas
from September 6 to 30, 2017. This evidence is not relevant as the underlying issue of this case is
whether appellant has submitted sufficient medical evidence to establish a medical diagnosis in
connection with the accepted September 9, 2017 employment incident. The Board has held that
the submission of evidence or argument which does not address the particular issue involved does
not constitute a basis for reopening a case. 26 Therefore, OWCP properly determined that this
evidence did not constitute a basis for reopening the case for a merit review and appellant also
failed to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.

23

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

24

L.S., Docket No. 19-0117 (issued July 11, 2019); John F. Critz, 44 ECAB 788, 794 (1993).

25

See J.F., Docket No. 16-1233 (issued November 23, 2016).

26

See supra note 24.

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury due
to the accepted September 9, 2017 employment incident. The Board further finds that OWCP
properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 13, 2018 and December 29, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 2, 2020
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-944
Issued: December 22, 2010

Case Submitted on the Record

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

JURISDICTION
On February 24, 2010 appellant filed a timely appeal from a December 29, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty as alleged.
FACTUAL HISTORY
On July 1, 2009 appellant, then a 38-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed pain in his left arm, shoulder and neck as a result
of employment activities. He first became aware of the pain in his left arm, shoulder and neck in

January 2000 and realized he had an employment-related injury on May 19, 2009.1 Appellant
did not stop working.
On June 16, 2009 Dr. Chris Lawrence, a Board-certified radiologist, reported that a
magnetic resonance imaging (MRI) scan of appellant’s left shoulder showed mild to moderate
amounts of fluid in the subacromial bursa anteriorly and posteriorly with no evidence of a rotator
cuff tear. He further stated that there was minimal fluid found in the glenohumeral joint and the
axillary recess, as well as in the superior subscapular recess. Dr. Lawrence also noted a prior
shoulder repair in 2001.
In a letter dated August 18, 2009, the Office requested additional factual and medical
evidence, including a detailed description of the employment activities which contributed to
appellant’s shoulder condition. It also requested a comprehensive medical report containing a
diagnosis, description of his symptoms, the results of examinations and tests and medical
rationale explaining how his diagnosed condition was causally related to specific factors of his
employment.
On September 21, 2009 appellant submitted a factual statement describing his work
duties and the employment factors he believed caused his condition. He claimed his injury was a
result of his duties as a letter carrier which required repetitive shoulder motions. Appellant noted
that his job included completing such tasks as carrying mail in a satchel for delivery, clutching
mail in his left arm and hand for six to seven hours a day, casing, pulling down mail, manually
loading his postal truck and bending down to pick up parcels. He also submitted a June 1, 2009
exercise program for his neck, upper back and shoulder provided by Dr. A. Jay Binder, a Boardcertified orthopedic surgeon.
By decision dated October 28, 2009, the Office denied appellant’s claim finding that the
evidence was insufficient to establish that he sustained an injury where there was no medical
evidence that provided a diagnosis which could be connected to the claimed event.
On November 12, 2009 appellant requested reconsideration from the Office and
submitted a September 28, 2009 medical report from Dr. Binder. In his report, Dr. Binder
provided a history of appellant’s treatment for his previous January 21, 2000 employment injury.
He noted that in July 2000 appellant underwent surgery by Dr. Tregre Brown to repair a bony
Bankart lesion with capsular avulsion as well as a labrum tear. Dr. Binder further stated that his
physical examination of appellant showed a positive O’Brien’s test and some apprehension in
abduction external rotation, decreased to 40 degrees. After evaluating the June 16, 2009 MRI
scan of appellant’s left shoulder, he found appellant to have a superior labrum or SLAP lesion
based on an increased signal in the superior labrum, appellant’s reported symptoms, the positive
O’Brien’s test and his own physical examination. Dr. Binder recommended a left shoulder
arthroscopic SLAP lesion repair and determined that appellant’s shoulder injury is related to his
original injury, having progressively worsened over time due to superior labrum tearing.

1

Appellant contends that his shoulder had been previously repaired on July 10, 2000 due to a January 21, 2000
employment injury which was accepted by the Office, claim number xxxxxx187.

2

By decision dated December 29, 2009, the Office denied modification of its October 28,
2009 decision on the grounds that the evidence of record failed to establish that appellant
sustained an injury due to specific employment factors.2
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; that an injury was sustained while 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.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
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.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.7 Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
2

Following the Office’s December 29, 2009 decision, appellant submitted additional new evidence to the Board
on appeal. As this evidence was not before the Office at the time of its final decision, the Board may not review this
evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

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

7

D.U., 61 ECAB ___ (Docket No. 10-144, issued July 27, 2010).

3

whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee. This
medical opinion must include an accurate history of the employee’s employment injury, and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
The Office accepted that appellant performed the duties of a letter carrier as alleged. The
issue is whether appellant established that the accepted employment activities caused or
contributed to his condition. The Board finds that he has not met his burden of proof. While
appellant submitted additional medical evidence addressing his shoulder injury, it is not
sufficiently well reasoned in explaining the causal connection between appellant’s shoulder
injury and his employment factors as a letter carrier.9
On June 16, 2009 diagnostic testing was obtained by Dr. Lawrence and the MRI scan of
appellant’s left shoulder showed mild to moderate amounts of fluid in the subacromial bursa
anteriorly and posteriorly with minimal amounts of fluid in the glenohumeral joint, axillary
recess and the superior subscapular recess. Dr. Lawrence also noted that there was no evidence
for a rotator cuff tear and briefly stated that appellant had a previously repaired shoulder in 2001.
While he diagnosed appellant’s left shoulder injury, he did not explain why appellant’s condition
was due to his employment activities as a letter carrier. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.10 Without medical reasoning
explaining how appellant’s employment factors caused his shoulder injury, Dr. Lawrence’s
report is insufficient to meet appellant’s burden of proof.11
In a September 28, 2009 medical report, Dr. Binder provided a brief narrative of
appellant’s treatment history from his prior January 21, 2000 employment injury. He explained
that in July 2000 appellant underwent surgery to repair a bony Bankart lesion with capsular
avulsion as well as a labrum tear, performed by Dr. Tregre Brown. In his report, Dr. Binder
reviewed appellant’s MRI scan and diagnosed appellant with a superior labrum or SLAP lesion,
recommending a left shoulder arthroscopic SLAP lesion repair. He also noted that appellant’s
shoulder injury was related to the original January 21, 2000 injury, having become progressively
worse over time due to superior labrum tearing.
8

James Mack, 43 ECAB 321 (1991).

9

See Robert Broome, 55 ECAB 339 (2004).

10

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); C.B., 61 ECAB ___ (Docket No. 09-2027,
issued May 12, 2010).
11

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008).

4

The Board finds that the opinion of Dr. Binder is not well rationalized. While briefly
noting a history of appellant’s shoulder injury, Dr. Binder did not set out adequate detail
pertaining to appellant’s prior treatment and failed to explain how appellant’s work activities
contributed to or aggravated his shoulder injury. Medical reports not containing adequate
rationale on causal relationship are of diminished probative value and are insufficient to meet an
employee’s burden of proof.12 Dr. Binder’s report is vague and speculative, failing to set out a
clear explanation on the causal connection of appellant’s shoulder injury to his factors of
employment as a letter carrier and, as such, is of diminished probative value. Thus, his report is
insufficient to meet appellant’s burden of proof in establishing causal relationship between
appellant’s shoulder condition and his factors of employment as a letter carrier.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.13 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.14 Causal relationships must be established by rationalized medical opinion evidence.
Appellant failed to submit such evidence and the Office properly denied his claim for
compensation.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
shoulder injury is causally related to factors of his employment as a letter carrier.

12

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

13

Daniel O. Vasquez, 57 ECAB 559 (2006).

14

D.D., 57 ECAB 734 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6