United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, SC, Employer
__________________________________________

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

Docket No. 12-905
Issued: December 12, 2012

Case Submitted on the Record

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

JURISDICTION
On March 14, 2012 appellant filed a timely appeal from a February 6, 2012 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP), which denied her claim
for an employment-related injury. 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 developed a
bilateral shoulder condition in the performance of duty causally related to factors of her federal
employment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 6, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant requests temporary light-duty employment.
FACTUAL HISTORY
On July 8, 2010 appellant, then a 49-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that she developed a bilateral shoulder condition due to factors of her
federal employment. She indicated that her first employment injury occurred in 1996, the second
in 2002 and the third in 2008.3 After the third injury, appellant returned to full duty in
September 2008 and through the course of time, her duties and previous accidents caused the
impairment of her shoulders.
Appellant submitted two light-duty requests dated June 17 and August 2, 2010.
A June 3, 2010 magnetic resonance imaging (MRI) scan of the left shoulder revealed a
1.2 centimeter tear of the supraspinatus tendon of the left shoulder, degenerative joint disease at
the acromioclavicular (AC) joint and biceps tendon rupture.
On June 25, 2010 Dr. Robert Lowery, a Board-certified orthopedic surgeon, performed
an arthroscopy of the left shoulder with debridement of biceps tendon tear, subacromial
decompression and rotator cuff repair.
In an August 11, 2010 report, Dr. Lowery provided a history of appellant’s medical
treatment and diagnosed tendinitis and rotator cuff tear. He opined that appellant’s work duties
such as lifting, pushing, pulling, twisting, reaching above the shoulders and grasping mail for
many years caused her conditions. Dr. Lowery noted that appellant mentioned work injuries in
1989,4 1997, 2002 and 2008 where a pattern of using repetitive motions after an injury caused a
recurrence of accidents. Appellant also mentioned a work injury in 2006 in which she broke a
fall when pushing a cart. According to Dr. Lowery, while the act of falling did not automatically
necessitate a tear within the rotator cuff, the tendon in her shoulder could have snapped,
depending on how she landed.
In an August 20, 2010 letter, OWCP informed appellant of the deficiencies of her claim
and afford 30 days for the submission of additional evidence.
In a February 27, 2003 report, Dr. James C. McIntosh, Jr., a Board-certified orthopedic
surgeon, recommended that appellant avoid excessive overhead activities. He advised that, if she
was placed in a position where she had to do a lot of lifting, he asked to limit this at 40 hours a
week. Dr. McIntosh opined that most of appellant’s condition had been related to the upper
extremities and that having her in a seated position intermittently would have a positive effect to
her condition.

3

The record reveals that OWCP accepted a sacroiliac strain/sprain injury occurring on November 17, 1997 in
File No. xxxxxx482; a left wrist and trapezius (shoulder) strain for a June 12, 2002 occupational disease claim in
File No. xxxxxx964; and chest and bilateral shoulder injury on May 19, 2008 in File No. xxxxxx610.
4

The record reveals that OWCP accepted that appellant sustained a lumbar condition on April 2, 1989 in File No.
xxxxxx509.

2

In an April 15, 2010 report, Dr. Lowery indicated that appellant was seen as a selfreferral for evaluation of bilateral shoulder pain. He reported that she felt that this all initiated
when she extended her exercise program to include weightlifting as upper extremity activities.
Dr. Lowery noted that appellant worked as a postal clerk and could identify no particular trauma.
Appellant stated that any sort of lifting over shoulder height was very painful on the left and
moderately painful on the right. Dr. Lowery indicated that her right shoulder problem was a
“nonemployment, nonauto, nonhome[-]related accident injury, which occurred on or around
F[ebruary 15, 20]10.” He diagnosed bilateral subacromial impingement bilateral pectoralis
major tightness bilateral scapular dyskinesis.
On May 27, 2010 Dr. Lowery diagnosed left shoulder biceps tendinitis and rotator cuff
tear. He further found that appellant’s right shoulder pain had resolved. On June 16, 2010
Dr. Lowery recommended left shoulder arthroscopy and diagnosed neck pain.
In a September 10, 2010 letter, the employing establishment controverted appellant’s
claim and submitted photographs of special accommodations for her, a position description and
qualification standard for a distribution, window and mark-up clerk. The employing
establishment indicated that her federal employment required: lifting/carrying up to 30 pounds,
pushing up to 70 pounds, sitting, walking and grasping. It stated that appellant’s job did not
require: kneeling, climbing, pulling, bending, stooping or twisting.
The employing
establishment stated that she did not work above her shoulders at all and if she reached above her
shoulder it was to retrieve a left notice article from shelf maybe 0 to 1 hours a day, was very
intermittent and she was to solicit assistance with any weight at all.
By letter dated August 3, 2010, the employing establishment notified appellant that it did
not have any limited-duty positions to offer that would fall within her medical restrictions, which
included: eight hours of sitting; intermittent standing, walking and driving; no lifting/carrying,
pushing/pulling, climbing, repetitive motion of hands, grasping, kneeling, bending, stooping,
twisting, reaching and/or working above shoulders.
On September 8, 2010 appellant requested a light-duty position. Dr. Lowery indicated
that she was absent from work for the period June 15 to 25, 2010 due to left shoulder rotator cuff
repair and was able to return to work as of September 8, 2010 with restrictions.
By decision dated September 27, 2010, OWCP denied the claim finding that the evidence
of record failed to establish fact of injury.
On October 2, 2010 appellant requested a review of the written record by an OWCP
hearing representative. Thereafter, she submitted a September 8, 2010 report by Dr. Lowery
who opined that if she was forced to return to full duty she was at an extremely high risk of
having another rotator cuff injury. Dr. Lowery strongly recommended permanent light or
limited-duty work with shoulder-strengthening exercises.
In a November 9, 2010 letter, the employing establishment advised appellant that she
would be removed from her federal employment effective 30 days from her receipt of the letter.
It charged her with failing to provide accurate information on OWCP documents. Appellant
submitted a claim form on July 8, 2010 indicating that she first became aware of her condition on

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April 15, 2010 and in an April 15, 2010 report Dr. Lowery stated that she reported that her
bilateral shoulder pain initiated when she extended her exercise program to include weightlifting
as upper extremity activities. Dr. Lowery’s noted that her right shoulder condition was not
employment related and occurred on or around February 15, 2010. The employing establishment
found that appellant’s behavior was so egregious that it warranted immediate removal, even
though it was a first time offense.
In a November 15, 2010 report, Dr. Lowery indicated that appellant was doing much
better after her surgery with the exception of some mild swelling.
In a January 5, 2011 narrative statement, appellant argued that her removal from
employment was without basis in fact or merit and added financial, psychological and emotional
injury and trauma to the pain and suffering already visited by the occupational disease. She
requested dismissal of the charges and an immediate reinstatement of her employment in
accordance with conditions consistent with her occupational disease.
By decision dated February 8, 2011, an OWCP hearing representative affirmed and
modified the September 27, 2010 decision finding that although appellant established fact of
injury, the evidence of record failed to establish causal relationship between her bilateral
shoulder condition and the implicated employment factors.
On March 24, 2011 appellant requested reconsideration and resubmitted evidence in
support of her claim.
By decision dated February 6, 2012, OWCP granted and conducted a merit review as the
reconsideration decision was delayed beyond 90 days. It denied modification of its February 8,
2011 decision on the basis that the medical evidence submitted was not sufficient to establish
causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury6 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty, in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
5

5 U.S.C. §§ 8101-8193.

6

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
7

See J.C., Docket No. 09-1630 (issued April 14, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

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occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.9
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
she developed a bilateral shoulder condition in the performance of duty. The record reflects that
her federal employment requires lifting/carrying up to 30 pounds, pushing up to 70 pounds,
sitting, walking and grasping. Additionally, appellant has been diagnosed with bilateral shoulder
pain. However, she has not established that her condition is causally related to any of these
factors of her federal employment.
On April 15, 2010 Dr. Lowery indicated that appellant was seen as a self-referral for
evaluation of bilateral shoulder pain, which she felt was initiated when she extended her exercise
program to include weightlifting as upper extremity activities. He indicated that her right
shoulder condition was a nonemployment-related injury which occurred on or around
February 15, 2010. On May 27, 2010 Dr. Lowery diagnosed left shoulder tendinitis and rotator
cuff tear and further found that appellant’s right shoulder pain had resolved. On June 16, 2010
he diagnosed neck pain. On June 25, 2010 Dr. Lowery performed left shoulder surgery. In an
August 11, 2010 report, he opined that appellant’s work duties such as lifting, pushing and
grasping mail for many years caused her conditions. Dr. Lowery noted that she mentioned work
injuries in 1989, 1997, 2002 and 2008 and a work injury in 2006, in which she broke a fall when
pushing a cart. According to him, while the act of falling did not automatically necessitate a tear
within the rotator cuff, the tendon in appellant’s shoulder could have snapped, depending on how
she landed. On September 8, 2010 Dr. Lowery strongly recommended permanent light or
limited-duty work. He provided firm diagnoses and identified appellant’s work duties.
However, Dr. Lowery’s opinions were speculative and he failed to provide a rationalized opinion
explaining how factors of her federal employment, such as lifting/carrying, pushing, sitting,
walking and grasping, caused or aggravated her bilateral shoulder condition. The Board has held
that the mere fact that appellant’s symptoms arise during a period of employment or produce
symptoms revelatory of an underlying condition does not establish a causal relationship between
her condition and her employment factors.10 Lacking thorough medical rationale on the issue of
8

Id. See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

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

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

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causal relationship, the Dr. Lowery’s reports are insufficient to establish that appellant sustained
an employment-related injury.
In his February 27, 2003 report, Dr. McIntosh recommended that appellant avoid
excessive overhead activities and advised that if she was placed in a position where she had to do
a lot of lifting, he asked to limit this at 40 hours a week. He opined that most of her condition
had been related to the upper extremities and that having her in a seated position intermittently
would have a positive affect to her condition. 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.11 As such, the Board finds that appellant did not meet
her burden of proof with the submission of Dr. McIntosh’s report.
The June 3, 2010 MRI scan is diagnostic in nature and therefore does not address causal
relationship. As such, the Board finds that it is insufficient to establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.12 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. As
appellant has not submitted any medical evidence to support her allegation that she sustained an
injury causally related to the indicated employment factors, she failed to meet her burden of
proof to establish a claim.
On appeal, appellant requests temporary light-duty employment. However, the only issue
before the Board, for which OWCP issued a final adverse decision is whether she sustained a
shoulder condition in the performance of duty causally related to factors of her federal
employment.13 As the Board has found above, she has not. Thus, appellant’s request is not
substantiated.
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 failed to meet her burden of proof to establish that she
developed a bilateral shoulder condition in the performance of duty causally related to factors of
her federal employment.

11

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

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

13

See 20 C.F.R. §§ 501.2(c) and 501.3(a), respectively.

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2012
Washington, DC

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

Alec J. Koromilas, Alternate 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
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 21-0182
Issued: July 9, 2021

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 19, 2020 appellant filed a timely appeal from a March 11, 2020 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 his burden of proof to establish disability from work
beginning October 31, 2016, causally related to his accepted October 19, 2015 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 11, 2020 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.

FACTUAL HISTORY
On October 21, 2015 appellant, then a 33-year-old heavy mobile equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that he strained his back when removing the
coil spring from a heavy vehicle while in the performance of duty. OWCP accepted the claim for
a sprain of the ligaments of the lumbar spine.
In work capacity evaluations (Form OWCP-5c) dated April through October 2016,
Dr. Christopher Mann, an osteopath specializing in sports medicine, found that appellant was
unable to perform his regular work duties, but could work 8 to 10 hours per day with restrictions
that included walking and standing for 1 to 4 hours each day varying as needed, and lifting,
pushing, and pulling up to 10 pounds for 1 to 4 hours per day.
In a letter dated October 5, 2016, the employing establishment informed OWCP that
appellant had “fulfilled his tenure and due to our lack of workload will not be extended.” It
submitted a notification of personnel action Standard Form (SF)-50 indicating that, effective
May 29, 2016, his term appointment had been extended not to exceed October 30, 2016.
On October 25, 2016 Dr. Mann indicated that appellant’s herniated discs at L4-5 and L5S1 had caused nerve root impingement and degenerative changes. He opined that appellant was
permanently disabled from his usual employment as he was unable to “lift heavy weights and
perform the type of heavy mechanic work required for this position.”
On October 26, 2016 appellant filed a claim for compensation (Form CA-7) claiming
disability from work from October 31 to November 15, 2016. The employing establishment
advised that he had been performing modified employment until his physician found that he should
not work. It noted that it had not extended appellant’s term appointment.
The employing establishment, on October 26, 2016, informed OWCP that appellant had
been hired on a term appointment not to exceed October 30, 2016, and that his term was not
extended as the workload had decreased. It indicated that it had accommodated all of his
restrictions until October 30, 2016, when he was “non-extended due to lack of workload and not
due to his injury nor his inability to work.”
In a development letter dated November 3, 2016, OWCP requested that appellant submit
additional evidence in support of his claim for wage-loss compensation, including a report from
his physician explaining how his condition had worsened such that he could no longer perform the
duties of his position.
In a Form OWCP-5c dated November 17, 2016, Dr. Mann again found that appellant could
work 8 to 10 hours per day with the same restrictions.
By decision dated February 28, 2017, OWCP denied appellant’s claim for disability from
work for the period October 31 through November 15, 2016. It found that the employing
establishment had accommodated him in a light-duty position until the end of his term
appointment, when it did not extend his appointment due to a reduced workload. OWCP
concluded, therefore, that the medical evidence neither supported that appellant sustained material
changes to his accepted employment-related condition, nor did it support a change to his light-duty
2

job assignment. On July 26, 2017 Dr. Mann requested that OWCP expand the accepted conditions
to include lumbar spondylosis and lumbar intervertebral disc disorder with radiculopathy. He
advised that identifying the severity of the injury would improve appellant’s physical condition
and give him “an opportunity to return to work.”
In a work capacity evaluation (Form OWCP-5c) dated October 31, 2017, Dr. Mann
diagnosed lumbar intervertebral disc degenerative disease and radiculopathy. He advised that
appellant was unable to perform his usual position, but could work with the same restrictions.
Appellant submitted numerous reports from a nurse practitioner from 2017 and 2018.
On August 24, 2018 OWCP expanded acceptance of the claim to include lumbar
intervertebral disc disorders with radiculopathy and lumbar spondylosis.
In a report dated December 10, 2018, Dr. Francisco J. Batlle, a neurosurgery specialist,
discussed appellant’s history of an October 19, 2015 employment injury.3 He diagnosed lumbar
radiculitis, a herniated nucleus pulposus at L5-S1, lumbar mechanical/discogenic pain syndrome
at L5-S1, and lumbago. Dr. Batlle recommended weight loss prior to any surgical intervention.
In a report dated March 18, 2019, Dr. Mann related that appellant had sustained a low back
injury at work. He noted that he had been released to resume work with restrictions in April 2016,
but the employing establishment had not accommodated him. Dr. Mann advised that appellant
also had a work-related left knee injury. He asserted that appellant “must be accommodated to a
work position within his given restrictions or provided workers’ compensation for the time he is
disabled….”
On December 18, 2019 appellant filed a Form CA-7 claiming disability from work for the
period October 31, 2016 to November 15, 2019.4
Dr. Mann continued to submit OWCP-5c forms in 2018 and 2019, finding that appellant
could work with the same restrictions.5
On January 29, 2020 the employing establishment challenged appellant’s claim for
disability for the period October 31, 2016 to November 15, 2019. It advised that his term
appointment had ended on October 30, 2016 and had not been extended due to a lack of work
rather than any inability to accommodate his restrictions.
In a development letter dated February 14, 2020, OWCP requested that appellant submit a
comprehensive medical report explaining how his condition worsened such that he was unable to
3

On February 8, 2019 Dr. Melvin R. Manning, a Board-certified physiatrist, diagnosed lumbar disc syndrome and
recommended epidural steroid injections.
4
On December 18, 2019 the employing establishment advised that the date of injury on the CA-7 forms should
have been August 9, 2016, assigned OWCP File No. xxxxxx179. It noted that he had two injuries and that the other
date had been used on the form.
5
On January 28, 2020 Dr. Patrick K. Stanton, an osteopath, provided pain management. On February 20 2020 he
indicated that appellant should be excused from work that date due to a procedure.

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perform the duties of his position on October 31, 2016. It noted that the employing establishment
advised that limited-duty employment was available during the claimed period. OWCP afforded
appellant 30 days to submit the requested evidence.
By decision dated March 11, 2020, OWCP denied appellant’s claim for wage-loss
compensation from October 31 through November 15, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.7 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury. 8 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.9
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.10 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.11 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability as that term is used in FECA.12
The Board has held that when a claimant stops work for reasons unrelated to the accepted
employment injury, there is no disability within the meaning of FECA.13
OWCP’s procedures provide that a recurrence of disability does not include a work
stoppage due to the termination of a temporary appointment if the claimant was a temporary
employee at the time of injury.14
6

Supra note 1.

7

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
8

M.C., Docket No. 18-0919 (issued October 18, 2018).

9

See K.C., Docket No. 17-1612 (issued October 16, 2018).

10

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

11

See L.W., Docket No. 17-1685 (issued October 9, 2018).

12

See M.W., Docket No. 20-0722 (issued April 26, 2021); D.G., Docket No. 18-0597 (issued October 3, 2018).

13

See O.S., Docket No. 16-1771 (issued January 23, 2018); John W. Normand, 39 ECAB 1378 (1988).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3c(1) (June 2013).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish disability from
work beginning October 31, 2016 causally related to his accepted October 19, 2015 employment
injury.
Following his employment injury, in OWCP-5c forms dated April through October 2016,
Dr. Mann found that appellant could work 8 to 10 hours per day with restrictions of walking and
standing for 1 to 4 hours each day and lifting, pushing, and pulling up to 10 pounds for 1 to 4 hours
per day. Appellant worked in a limited-duty position within his restrictions until his term position
expired on October 30, 2016. The employing establishment advised that it had not extended his
position due to decreased work rather than to his employment injury.
As appellant was a temporary employee, he was not entitled to disability compensation at
the time his appointment ended, irrespective of whether he was performing modified duty. 15 As
noted, the termination of a temporary appointment, when the employee was a temporary employee
at the time of injury, does not in itself establish a recurrence of disability. 16 Appellant must,
therefore, provide medical evidence establishing that he was disabled from his limited-duty
position beginning October 30, 2016.
In a report dated October 25, 2016, Dr. Mann found that appellant had nerve root
impingement and degenerative changes due to his herniated discs at L4-5 and L5-S1. He asserted
that he was totally and permanently disabled from his regular employment as he was unable to lift
heavy weights. The issue, however, is whether appellant could perform the duties of his modified
position, effective October 30, 2016, and not his ability to perform the duties of his date-of-injury
position. As Dr. Mann did not address whether he could perform his modified-duty position during
the period claimed, his opinion is insufficient to establish appellant’s claim.17
On March 18, 2019 Dr. Mann advised that appellant could work with restrictions after
April 2016, but that the employing establishment had not accommodated his limitations. He noted
that he also had an employment-related left knee condition. As discussed, however, appellant was
a temporary employee at the time of his employment injury and, thus, the termination of his
temporary appointment is insufficient to show that he is entitled to wage-loss compensation.18
In OWCP-5c forms dated November 17, 2016 through September 12, 2019, Dr. Mann
again found that appellant could work 8 to 10 hours per day with restrictions of walking and
standing for 1 to 4 hours each day and lifting, pushing, and pulling up to 10 pounds for 1 to 4 hours
per day. As these were the restrictions within which appellant was working at the time his

15

O.S., supra note 13; S.E., Docket No. 15-0888 (issued September 14, 2016).

16

Id.; see also Shelly A. Paolinetti, 52 ECAB 291 (2001).

17

See M.T., Docket No. 17-1240 (issued November 14, 2017).

18

S.E., supra note 15.

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temporary appointment ended, these reports are insufficient to show disability from the modifiedduty work he was performing at the expiration of his employment contract.19
On December 10, 2018 Dr. Batlle provided a history of appellant’s October 19, 2015
employment injury and diagnosed lumbar radiculitis, a herniated nucleus pulposus at L5-S1,
lumbar mechanical/discogenic pain syndrome at L5-S1, and lumbago. As Dr. Batlle failed to
address the relevant issue of whether appellant had employment-related disability after October 30,
2016, his report is insufficient to meet his burden of proof.20
Appellant submitted reports from a nurse practitioner; however, these reports do not
constitute competent medical evidence because nurse practitioners are not considered
“physician[s]” as defined under FECA.21 Consequently, the medical findings and/or opinions of
a nurse practitioner will not suffice for purposes of establishing entitlement to compensation
benefits.22
As appellant has not submitted any rationalized medical evidence to establish that he was
disabled from work commencing October 31, 2016 causally related to his accepted October 19,
2015 employment injury, he 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 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 disability from
work beginning October 31, 2016 causally related to his accepted October 19, 2015 employment
injury.

19

Id.

20

K.B., Docket No. 19-0155 (issued January 10, 2020); D.B., Docket No. 19-0481 (issued August 20, 2019).

21

See R.C., Docket No. 19-0376 (issued July 15, 2019); S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (a
nurse practitioner is not a physician under FECA). A report from a nurse practitioner will be considered medical
evidence only if countersigned by a qualified physician. Section 8101(2) of FECA provides that the term physician
“includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See
also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013);
R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical therapists are not considered
physicians under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
22

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the March 11, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2021
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, BROCKTON POST
OFFICE, Brockton, MA, Employer
__________________________________________

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

Docket No. 19-1632
Issued: February 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2019 appellant, through counsel, filed a timely appeal from a January 30, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated February 8, 2018, 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 over 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 of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 18, 2017 appellant, then a 34-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 20, 2016, while in the performance of duty, she injured her left
knee when she was struck by a vehicle when delivering mail on foot. She alleged that she sustained
persistent back pain and a left knee injury that required surgery. Appellant did not stop work at
the time of the claimed injury.
In a medical note dated April 3, 2017, Dr. Michael V. Elman, a Board-certified orthopedic
surgeon, noted that appellant was his patient since November 30, 2016 for complaints of left knee
pain as well as low back pain subsequent to being hit by a vehicle while walking as a mail carrier.
He indicated that a magnetic resonance imaging (MRI) scan of left knee revealed a torn lateral
meniscus. Dr. Elman recommended arthroscopic surgery.
In a letter dated April 28, 2017, Postmaster L.K. controverted appellant’s claim, noting that
while appellant reported the July 20, 2016 incident, she denied any injury and completed her
delivery route.
In a development letter dated May 15, 2017, OWCP advised appellant of the deficiencies
in her claim and requested that she submit additional evidence. It advised her of the type of factual
and medical evidence needed and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to respond. No additional evidence was received.
By decision dated June 16, 2017, OWCP denied appellant’s claim, finding that she had not
submitted sufficient medical evidence to establish causal relationship between the accepted
July 20, 2016 employment incident and her left knee injury.
Following the June 16, 2017 decision, OWCP received a physical therapy note dated
March 9, 2010, showing that appellant was treated for a previous, separate knee condition, and
physical therapy notes dated February 2 through April 28, 2017, showing that appellant was
treated for a left knee injury subsequent to the accepted July 20, 2016 employment incident.
On July 12, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. Prior to the hearing, OWCP received
a police report covering the July 20, 2016 employment incident. The hearing was held
telephonically on December 6, 2017. Appellant testified that she was hit by a driver whose vehicle
jumped the curb and struck the lower part of her left leg and a utility pole before backing up and
driving away. She testified that she got out of the way as the vehicle reversed and backed out.
Appellant testified that one of her supervisors and the postmaster came down to the scene before
she headed to the police station to file a report. She further testified that she did not finish her
route and received initial medical treatment on the same evening.
Following the December 6, 2017 hearing, OWCP received additional evidence.
2

A December 7, 2016 left knee MRI scan report revealed a torn lateral meniscus as well as
medial collateral ligament sprain. A February 26, 2017 lumbar spine MRI scan report revealed a
small disc herniation at L5-S1 and no significant nerve root compromise.
In January 2, 2018 appointment notes, Dr. Elman reported that appellant was hit by a
vehicle from behind and fell and might have twisted her knee at the time of injury. He diagnosed
a left lateral meniscus tear. Dr. Elman noted that being hit by a car and falling could have led to a
meniscus tear in the left knee. He again recommended arthroscopic surgery.
By decision dated February 8, 2018, OWCP’s hearing representative affirmed the June 16,
2017 decision.
OWCP subsequently received additional copies of appellant’s physical therapy records.
In a January 14, 2019 report, Dr. Elman related that appellant was struck by a vehicle at a
relatively slow speed while delivering mail on July 20, 2016. He noted that a left knee MRI scan
revealed a torn lateral meniscus. Dr. Elman opined that appellant’s left knee injury could have
been caused by her work accident in being struck by a motor vehicle whether it was a twisting
mechanism or fall. He also noted that appellant was previously asymptomatic in her knee and had
no arthritic findings.
On January 15, 2019 appellant, through counsel, requested reconsideration. Counsel
referenced and attached the January 14, 2019 report from Dr. Elman.
By decision dated January 30, 2019, OWCP denied appellant’s request for reconsideration
of the merits of the claim.
LEGAL PRECEDENT
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.3
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.4

3

Id. at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
4
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).

3

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 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.7
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s January 15, 2019 timely request for reconsideration failed to show that OWCP
erroneously applied or interpreted a specific point of law and did not advance a new and relevant
legal argument not previously considered by OWCP. Consequently, she is not entitled to a review
of the merits based on the first and second requirements pursuant to section 10.606(b)(3).8
The Board notes that the underlying issue in this case is whether appellant had met her
burden of proof to establish causal relationship between the accepted July 20, 2016 employment
incident and her claimed left knee injury. That is a medical issue which, on reconsideration, must
be addressed by relevant medical evidence not previously considered.9
In support of her January 15, 2019 reconsideration request, appellant, through counsel,
submitted a January 14, 2019 report by Dr. Elman. In this report, Dr. Elman noted that appellant
was struck by a vehicle while delivering mail. He indicated that an MRI scan of her left knee
revealed a torn lateral meniscus and opined that the left knee injury could have been caused by her
work accident in being struck by a motor vehicle, whether it was a twisting mechanism or fall. He
also noted that appellant was previously asymptomatic in her knee and had no arthritic findings.
The Board finds that explanation is new and pertinent relevant evidence, which directly addresses
the issue of causal relationship. Reopening a claim for merit review does not require a claimant
to submit all evidence that may be necessary to discharge his or her burden of proof.10 Instead,
the requirement pertaining to the submission of evidence in support of reconsideration only

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested 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 indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

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

7
Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
8

T.J., Docket No. 19-0053 (issued April 4, 2019); C.B., Docket No. 18-1108 (issued January 22, 2019).

9

W.N., Docket No. 19-0690 (issued August 16, 2019); G.T., Docket No. 18-1506 (issued April 24, 2019); Bobbie F.
Cowart, 55 ECAB 746 (2004).
10

P.M., Docket No. 19-1253 (issued January 23, 2020); R.T., Docket No. 18-1263 (issued February 7, 2019).

4

specifies that the evidence be relevant and pertinent and not previously considered by OWCP.11
Appellant’s request for reconsideration, therefore, met the third standard for obtaining merit
review of her case under 20 C.F.R. § 10.606(b)(3).12 Accordingly, she is entitled to a merit review.
The Board will therefore set aside OWCP’s January 30, 2019 decision and remand the case
for an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).13
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with the decision of the Board.
Issued: February 17, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

F.E., Docket No. 20-0070 (issued August 4, 2020); Helen E. Tschantz, 39 ECAB 1382 (1988).

12

H.D., Docket No. 18-0865 (issued February 10, 2020); M.C., Docket No. 17-1983 (issued August 17, 2018);
Helen E. Tschantz, id.
13
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board effective January 20, 2021.

5


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

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

Docket No. 11-1785
Issued: February 15, 2012

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 May 25, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) June 28, 2011 merit decision denying his traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury to his lower back on May 9, 2011.
FACTUAL HISTORY
On May 13, 2011 appellant, a 28-year-old city carrier, filed a traumatic injury claim
alleging that he sustained injuries to his lower back when he was hit by a car on May 9, 2011 at
Jordan Avenue and Hannibal Street in St. Albans, NY. He did not submit any supporting

1

5 U.S.C. § 8101 et seq.

documentation. Appellant’s supervisor noted on the claim form that appellant was in the
performance of duty at the time of the alleged incident.
In a letter dated May 26, 2011, OWCP informed appellant that the information submitted
was insufficient to establish that the incident had occurred as alleged or that he had sustained an
injury as a result of the claimed event. It advised him to describe the circumstances surrounding
that claimed incident, including the immediate effects of the incident and what he did
immediately thereafter. OWCP also advised appellant to submit a detailed report from his
treating physician which included a history of how the claimed injury occurred, a diagnosis and
an opinion on how the condition was causally related to the claimed injury. The letter informed
him that, if he failed to respond to OWCP’s request within 30 days, a decision would be made
based upon the current evidence of record. On that same date, OWCP requested information
from appellant as to any third party that may have been responsible for his claimed injury.
Appellant submitted a May 31, 2011 duty status report from Dr. Roland Rose, a
chiropractor, reflecting that appellant injured his tailbone on May 9, 2011. On June 15, 2011
Dr. Rose stated that he was treating appellant for a May 9, 2011 work-related injury that resulted
in cervical disc displacement; cervical and lumbar joint dysfunction; fractured coccyx and
traumatic cervical sprain.
By decision dated June 28, 2011, OWCP denied the claim on the grounds that the fact of
injury was not established.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim including the fact that the individual is an employee of the United States,
that the claim was timely filed within the applicable time limitation period, that an injury was
sustained in the performance of duty as alleged and that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.3 These are the
essential elements of each compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.4
When an employee claims that he sustained a traumatic injury in the performance of
duty, he must establish the “fact of injury,” namely, he must submit sufficient evidence to

2

The Board notes that appellant submitted additional evidence after OWCP rendered its November 18, 2005
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. § 501.2(c); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). 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).
3

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

4

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

2

establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged, and that such event, incident or exposure caused an injury.5
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 subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
ANALYSIS
It is not disputed that appellant was in the performance of duty at the time of the alleged
incident; the Board finds however that appellant failed to establish the fact of injury. He did not
meet his burden of proof to establish that he sustained a traumatic injury on May 9, 2011.
In his CA-1 form, appellant provided no detailed account of the alleged injury or
corroborating evidence, such as witness statements. He presented no evidence regarding the
specific mechanism of injury, as required in a claim for traumatic injury, nor did he allege that he
experienced a specific event, incident or exposure at a definite time, place and manner.7
Appellant did not advise whether he was standing in a crosswalk when he was hit or whether he
was crossing the street in furtherance of his carrier duties. He did not describe the exact and
immediate consequences of the injury, (e.g., whether he was bumped by the vehicle, whether he
fell, whether he was thrown over the vehicle). Appellant did not identify the third party who
allegedly hit him. His vague recitation of the facts does not support his allegation that a specific
event occurred which caused a work-related injury.8
OWCP informed appellant that the information initially provided was insufficient to
establish his claim and advised him to provide factual details which would clarify the nature of
his claim. Appellant provided no response, however, to OWCP’s request for information.
The contemporaneous medical evidence of record is also insufficient to establish
appellant’s claim. Dr. Rose stated that he was treating appellant for a May 9, 2011 work-related
injury that resulted in cervical disc displacement; cervical and lumbar joint dysfunction;
fractured coccyx and traumatic cervical sprain. His reports, however, did not provide a detailed
history of injury describing the time, place and manner in which the alleged injury occurred, or
5

See Paul Foster, 56 ECAB 208 (2004); see also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002); 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(ee).
6

See Betty J. Smith, supra note 5.

7

See Betty J. Smith, supra note 5; see also Tracey P. Spillane, supra note 5.

8

See Paul Foster, supra note 5 (the Board found that appellant had failed to establish the fact of injury where his
allegations were vague and undocumented and did not relate with specificity the cause or immediate consequences
of the claimed injury).

3

identify a specific causative event. Therefore, Dr. Rose’s report is insufficient to establish that
the incident occurred as alleged.
Appellant has not met his burden of proof to establish that he experienced the
employment incident at the time, place and in the manner alleged, or that it caused an injury. As
he has not met his burden of proof to establish the fact of injury, it is not necessary to discuss the
probative value of the medical reports.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury to his lower back on May 9, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 28, 2011 is affirmed.
Issued: February 15, 2012
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

9

See Tracey P. Spillane, supra note 5.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bangor, WA,
Employer
__________________________________________

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

Docket No. 15-1447
Issued: October 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 24, 2015 appellant filed a timely appeal of a June 5, 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant established bilateral hearing loss causally related to his
federal employment.
FACTUAL HISTORY
Appellant, a 73-year-old planner man, filed an occupational disease claim (Form CA-2)
on November 5, 2014, alleging that he sustained a bilateral hearing loss caused by factors of his
1

5 U.S.C. § 8101 et seq.

federal employment. He worked at the employing establishment from 1967 to 1968 as a ship
fitter, from 1972 to 1989 as an outside mechanist, and at a desk job as a planner man from 1989
until 2010 when he retired. OWCP accepted that appellant was exposed to noise during this
period from shipboard operating machinery and equipment, industrial shop machines, equipment
or tools, including chipping guns, grinders, drills, needle guns, carbon arc, motors, pumps, and
cranes. Appellant was provided with hearing protection.
On December 18, 2014 OWCP advised appellant that the evidence was insufficient to
support his claim and requested evidence, including medical evidence establishing causal
relationship between a diagnosed condition and factors of his employment. It also requested
additional evidence from the employing establishment.
Appellant submitted annual hearing examinations and audiogram results from 1972 to
1990, in addition to an audiogram dated July 11, 2001. These audiograms provided no medical
opinion regarding causal relationship.2
On April 29, 2015 appellant was referred to an otolaryngologist, along with a statement
of accepted facts, for a second opinion examination to determine whether he sustained hearing
loss related to noise exposure at work.
In a May 27, 2015 second opinion report, Dr. Thomas J. Mueller, a Board-certified
otolaryngologist, reviewed appellant’s medical history and stated that an audiogram taken that
day showed a slightly down sloping hearing loss beginning at 250 hertz.3 He asserted that the
hearing loss at the end of significant noise exposure in 1986 was within normal limits and in fact
had since decreased significantly in all frequencies. Dr. Mueller opined that this did not
necessarily show a sensorineural loss in excess of what would be normally predicated on the
basis of presbycusis.
Dr. Mueller concluded that the workplace exposure as described by appellant was not of
sufficient intensity and duration to have caused or contributed to the hearing loss in question, as
confirmed by 20 years of alleged noise exposure without any evidence of hearing loss. He
concluded that appellant had a sensorineural hearing loss which was not due to his federal
employment and occupational noise exposure. Dr. Mueller reiterated that the 1988 audiogram
showed completely normal hearing and the current 2015 audiogram was inconsistent with an
occupational noise-induced pattern as well. He recommended hearing aids, but indicated that
this was not due to occupational noise exposure.
In a decision dated June 5, 2015, OWCP denied appellant’s claim, finding that the
medical evidence failed to establish that his hearing loss resulted from his federal employment.
2

OWCP determined that appellant’s claim was timely filed. Appellant retired from the employing establishment
on June 3, 2010 and filed this claim on November 5, 2014. However, the program of annual audiometric
examinations conducted by the employing establishment constructively established actual knowledge of a hearing
loss, such as to put the immediate supervisor on notice of an on-the-job injury. See James A. Sheppard, 55 ECAB
515 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(a)(3)(c) (March 1993).
3

The 2015 audiogram revealed hearing thresholds at 500, 1,000, 2,000, and 3,000 hertz (Hz) were 30, 30, 40, and
50 decibels for the right ear and 40, 40, 35, and 50 decibels for the left ear.

2

LEGAL PRECEDENT
An employee seeking compensation under FECA4 has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,5 including that he or she is an employee within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.6 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable 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.9
ANALYSIS
The record establishes that appellant currently has bilateral hearing loss and that he was
exposed to loud noise in his federal workplace. The issue, therefore, is whether this exposure
caused his hearing loss. In order to establish causal relationship, appellant must submit medical
opinion evidence, supported by medical rationale, explaining that hearing loss resulted from his
federal employment.
As the employing establishment audiograms appellant submitted to the record did not
provide an opinion regarding causal relationship, OWCP referred appellant to Dr. Mueller, a
Board-certified otolaryngologist, for a second opinion examination. Dr. Mueller reviewed
4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

6

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
7

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

8

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

appellant’s medical history and conducted a physical examination. He concluded that appellant
had sensorineural hearing loss which was not due to his federal employment and occupational
noise exposure. Dr. Mueller compared appellant’s 1988 audiogram (at the end of appellant’s
exposure to noise) with his baseline audiogram in 1972 and opined that both of these audiograms
indicated that appellant’s hearing was within normal limits. He noted that appellant’s hearing
loss at the end of any significant noise exposure was within normal limits, but that his hearing
loss had decreased significantly since 1988 in all frequencies. Dr. Mueller opined that this did
not show sensorineural loss in excess of what would be normally predicated on the basis of
presbycusis. He concluded that the workplace exposure as described by appellant was not of
sufficient intensity and duration to have caused or contributed to the hearing loss in question, as
confirmed by 20 years of alleged noise exposure without any evidence of hearing loss.
Dr. Mueller concluded that appellant had a sensorineural hearing loss which was not due to his
federal employment and occupational noise exposure. Thus, his report did not establish that
exposure to noise in the workplace caused or aggravated his hearing loss.10
The additional medical evidence of record is also insufficient to establish appellant’s
claim. Appellant submitted annual hearing examinations and audiogram results from 1964 to
1990 and July 11, 2001. These reports, however, do not contain any medical opinion explaining
how noise exposure at appellant’s workplace may have aggravated his hearing loss. The Board
has found 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.11 These
audiograms are insufficient to satisfy appellant’s burden of proof as they do not comply with the
requirements set forth by OWCP.
The Board has recognized that a claimant may be entitled to a schedule award for hearing
loss, even after exposure to hazardous noise has ceased, if causal relationship is supported by the
medical evidence of record.12 There was no medical evidence before OWCP at the time of its
June 5, 2015 decision providing an opinion that appellant’s hearing loss was work related.
Dr. Mueller provided a thorough examination and a reasoned opinion explaining how the
findings of his hearing loss on examination and testing were not due to the noise in appellant’s
employment. As there was no other medical evidence establishing hearing loss causally related
to employment factors, the Board affirms OWCP’s June 5, 2015 decision.
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.

10

See J.L., Docket No. 07-1740 (issued December 20, 2007).

11

K.W., 59 ECAB 271 (2007); R.E., Docket No. 10-679 (issued November 16, 2010).

12

See D.G., Docket No. 15-0702 (issued August 27, 2015).

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
bilateral sensorineural hearing loss was causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 07-362
Issued: April 18, 2007

Case Submitted on the Record

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

JURISDICTION
On November 21, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated December 15, 2005 and April 18 and October 5,
2006 denying his occupational disease 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 has met his burden of proof in establishing that his
rheumatoid and osteoarthritis were aggravated by factors of his employment.
FACTUAL HISTORY
On October 17, 2005 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim alleging that he experienced aggravation, acceleration and exacerbation of his
rheumatoid and osteoarthritis as a result of performing his employment duties over a 20-year
period. He first became aware of his condition on October 12, 2000. Appellant first realized that
his condition was related to his employment on October 11, 2005.

Appellant submitted a September 20, 2005 report from Dr. Mitchell B. Lowenstein, a
Board-certified internist, specializing in rheumatology, who began treating appellant on
October 12, 2000 for rheumatoid and osteoarthritis. Dr. Lowenstein reviewed the following: a
May 18, 2005 nerve conduction study, which was consistent with peripheral neuropathy; a
May 12, 2005 x-ray of the lumbar spine, which revealed degenerative disc disease and
osteoarthritis; a May 12, 2005 x-ray of the right hip, which revealed osteoarthritis; a
December 13, 2004 x-ray of the cervical spine, which revealed C1-2 subluxation; an August 31,
2004 magnetic resonance imaging (MRI) scan of the right carpals; an August 6, 2003 x-ray of
the hands and wrists, which revealed carpal collapse and erosion consistent with rheumatoid
arthritis; a February 8, 2003 x-ray of the feet and ankles, which showed soft tissue calcification
with joint space narrowing, swelling, cysts, hypertrophic changes and erosions consistent with
rheumatoid and osteoarthritis; an August 13, 2002 x-ray of the hands and wrists, which revealed
evidence of rheumatoid arthritis; a January 2, 2002 chest x-ray, which showed mild degenerative
arthritis of the thoracic spine; an October 12, 2000 x-ray of the cervical spine, which showed
straightening consistent with spasm; and October 12, 2000 x-rays of the hands, wrists, feet and
knees, which revealed evidence of osteoarthritis. He provided diagnoses of osteoarthritis in the
thoracic and lumbar spine, hip, knees, hands, fingers, thumbs, wrists, feet and ankles; and
rheumatoid arthritis in the hands, wrists, feet and ankles. Dr. Lowenstein opined that appellant’s
condition was aggravated and hastened by his duties as a mail carrier for 23 years which
included: constant walking; repetitive motion of the hands, wrist and feet, lifting of heavy
parcels, extended standing, reaching and bending; and operating a mail delivery vehicle.
Specifically, Dr. Lowenstein noted that appellant was required to stand 2.5 to 3.5 hours per day.
Mail delivery required him to climb in and out of his vehicle 10 to 40 times per day and to
repetitively grip the wheel and twist to pick up parcels. Appellant had to walk quickly and pivot
in order to case letters and small parcels. Repeated lifting, reaching up to seven feet, grabbing,
twisting, turning, bending, grasping and gripping caused stress on his hands, elbows, shoulders,
neck, hips, feet, knees and ankles. Dr. Lowenstein opined that these repetitive motions
aggravated and accelerated the expected natural history of physical changes associated with
rheumatoid and osteoarthritis.
By letter dated November 2, 2005, the Office informed appellant that the evidence
submitted was insufficient to establish his claim and advised him to provide a statement
describing the employment activities that he believed caused or aggravated his condition. The
Office also advised appellant to submit a report from his physician explaining how the alleged
job activities caused a material worsening of his condition, as opposed to a natural progression of
the disease. Appellant submitted an application for employment dated October 5, 1982.
By decision dated December 15, 2005, the Office denied appellant’s claim. The Office
found that the medical evidence of record was insufficient to establish that appellant’s claimed
condition was related to the established work-related events.
On February 15, 2006 appellant requested reconsideration of the December 15, 2005
decision. In support of his request, appellant submitted an undated statement delineating the
work tasks contributing to his claimed condition. Casing mail two to three hours per day, which
involved picking up 10- to 30-pound trays and tubs, putting letters away and removing straps and
wrappings from bundled flats, required repeated kneeling, bending, stooping, lifting, twisting and
grasping. Delivering mail required reaching, twisting and turning to gather and insert mail into

2

boxes. The repetitive process of walking down a ramp, unlocking the door of his vehicle and
starting the engine, created pain in appellant’s toes, feet, fingers and hands. Loading the truck,
which required lifting packages weighing up to 70 pounds and climbing in and out of his vehicle
over 70 times per day, aggravated his condition.
Appellant submitted a February 13, 2006 report from Dr. Lowenstein who reviewed the
history of his injury. Dr. Lowenstein opined that appellant’s rheumatoid and osteoarthritis
condition resulted from and was aggravated, exacerbated and worsened by the long-term effects
of his daily duties as a carrier, which included standing on his feet 2.5 to 3.5 hours per day
repeatedly lifting, carrying and moving bundles of magazines and tubs of mail weighing 10 to 30
pounds each; frequently stooping, bending and kneeling; and repeatedly placing mail into
individual mail slots. These activities caused pain, stiffness, numbness and decreased range of
motion in appellant’s arms, wrists, hands, elbows, shoulders, low back, hips, feet, ankles and
neck. Loading his truck for delivery; lifting heavy tubs and trays above his waist; delivering
mail, which required frequent twisting, leaning, grasping and gripping; and climbing in and out
of his truck from 20 to 60 times per day, contributed to his current condition. Appellant
submitted unsigned physician’s notes from Dr. Lowenstein for the period December 23, 2003
through February 14, 2006.
On March 3, 2006 the Office asked Dr. Lowenstein to provide objective evidence to
support the opinion expressed in his February 13, 2006 report, including treatment notes and
results of diagnostic tests. By letter dated March 21, 2006, the employing establishment stated
that mail tubs rarely weighed over 10 pounds and parcels rarely weighed as much as 70 pounds.
By decision dated April 18, 2006, the Office denied modification of its December 15,
2005 decision finding that the evidence of record was insufficient to establish a causal
relationship between factors of employment and a diagnosed condition. The Office stated that
appellant had provided no medical opinion based on objective findings and rationale explaining
why his claimed conditions were aggravated or accelerated by factors of employment.
On July 19, 2006 appellant again requested reconsideration. In support of his request,
appellant submitted an August 13, 2002 report of an x-ray of the hands, a February 18, 2003
report of an x-ray of the feet and ankles; an August 6, 2003 report of an x-ray of the wrists and
hands; a report of an August 31, 2004 MRI scan of the right metacarpophalangeal (MCP),
metatarpophalangeal (MTP) and carpals and a September 1, 2004 MRI scan of the left MCP,
MTP and carpals; a December 13, 2004 report of an x-ray of the cervical spine, a May 12, 2005
report of an x-ray of the right hip, a May 12, 2005 report of an x-ray of the lumbar spine, a
May 18, 2005 report of a nerve conduction study; June 3, 2005 laboratory results from the
Arthritis Center of Florida, a report of a February 22, 2006 MRI scan of the right MCP, MTP and
carpals and a February 28, 2006 MRI scan of the left MCP, MTP and carpals; and May 23, 2005,
February 16, 2006 and March 2, 2006 laboratory results from the Arthritis Center of Florida.
In a July 17, 2006 report, Dr. Lowenstein stated that the condition of appellant’s hands
was so severe that the repetitive use of his hands aggravated his condition and caused “flares”
that required treatment. He indicated that appellant had permanent flexion contractures and
deformities of his hands caused by rheumatoid arthritis and repeated overuse from years of
handling mail during the performance of his job duties. Dr. Lowenstein noted that the lifting and

3

handling of heavy mail tubs, sacks and trays of mail aggravated the joints and tendons in
appellant’s hands and feet. The bending and twisting required by the job aggravated pain in all
affected joints, tendons and ligaments identified in appellant’s February 13, 2006 report.
Standing for extended periods of time also exacerbated his condition. Dr. Lowenstein opined
that, when appellant’s rheumatoid arthritis was aggravated by his work duties, he had pain,
stiffness and swelling in the joints, caused by increased inflammation, which further aggravated
his condition and caused continuing damage to his joints. He recommended that appellant be
restricted from walking more than one block, lifting more than 25 pounds, carrying more than 5
pounds and standing for more than 90 minutes at a time.
By decision dated October 5, 2006, the Office denied modification of its previous orders.
The Office found that the medical evidence presented was not supported by objective findings or
medical rationale necessary to establish a material aggravation or acceleration of his chronic
underlying rheumatoid arthritis condition.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.5 However, it is well established that
proceedings under the Act are not adversarial in nature and while the claimant has the burden of
establishing entitlement to compensation, the Office shares responsibility in the development of
the evidence to see that justice is done.6
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
established that his rheumatoid and osteoarthritis were aggravated by factors of his employment.
The record contains numerous reports from appellant’s treating physician,
Dr. Lowenstein, a Board-certified internist specializing in rheumatology. In his September 20,
2005 report, Dr. Lowenstein reviewed a May 18, 2005 nerve conduction study, which was
consistent with peripheral neuropathy; a May 12, 2005 report of an x-ray of the lumbar spine,
which revealed degenerative disc disease and osteoarthritis; a May 12, 2005 report of an x-ray of
the right hip, which revealed osteoarthritis; a December 13, 2004 report of an x-ray of the
cervical spine, which revealed C1-2 subluxation; an August 31, 2004 report of an MRI scan of
the right carpals; an August 6, 2003 report of an x-ray of the hands and wrists, which revealed
carpal collapse and erosion consistent with rheumatoid arthritis; a February 8, 2003 report of an
x-ray of the feet and ankles, which showed soft tissue calcification with joint space narrowing,
swelling, cysts, hypertrophic changes and erosions consistent with rheumatoid and osteoarthritis;
an August 13, 2002 report of an x-ray of the hands and wrists, which revealed evidence of
rheumatoid arthritis; a January 2, 2002 report of a chest x-ray, which showed mild degenerative
arthritis of the thoracic spine; an October 12, 2000 report of an x-ray of the cervical spine, which
showed straightening consistent with spasm; and October 12, 2000 reports of x-rays of the hands,
wrists, feet and knees, which revealed evidence of osteoarthritis. Dr. Lowenstein diagnosed
osteoarthritis in the thoracic and lumbar spine, hip, knees, hands, fingers, thumbs, wrists, feet
and ankles; and rheumatoid arthritis in the hands, wrists, feet and ankles. He opined that
appellant’s condition was aggravated and hastened by his duties as a mail carrier for 23 years,
which included constant walking; repetitive motion of the hands, wrist and feet; lifting of heavy
parcels; extended standing; reaching and bending; and operating a mail delivery vehicle.
Specifically, Dr. Lowenstein noted that appellant was required to stand 2.5 to 3.5 hours per day.
Mail delivery required appellant to climb in and out of his vehicle 10 to 40 times per day and to
4

Id.

5

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

6

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of
Lionel F. Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB
1233 (1993).

5

repetitively grip the wheel and twist to pick up parcels. He had to walk quickly and pivot in
order to case letters and small parcels. Repeated lifting, reaching up to seven feet, grabbing,
twisting, turning, bending, grasping and gripping caused stress on his hands, elbows, shoulders,
neck, hips, feet, knees and ankles. Dr. Lowenstein opined that these repetitive motions
aggravated and accelerated the expected natural history of physical changes associated with
rheumatoid and osteoarthritis. On February 13, 2006 he opined that appellant’s rheumatoid and
osteoarthritis resulted from and was aggravated, exacerbated and worsened by, the long-term
effects of his daily duties as a carrier, which he delineated. Standing on his feet 2.5 to 3.5 hours
per day; repeatedly lifting, carrying and moving bundles of magazines and tubs of mail weighing
10 to 30 pounds each; frequently stooping, bending and kneeling; and repeatedly placing mail
into individual mail slots, caused pain, stiffness, numbness and decreased range of motion in
appellant’s arms, wrists, hands, elbows, shoulders, low back, hips, feet, ankles and neck.
Loading his truck for delivery, lifting heavy tubs and trays above his waist, delivering mail,
which required frequent twisting, leaning, grasping and gripping; and climbing in and out of his
truck from 20 to 60 times per day contributed to his current condition. In his July 17, 2006
report, Dr. Lowenstein stated that the condition of appellant’s hands was so severe that the
repetitive use of his hands aggravated his condition and caused “flares” that required treatment.
He indicated that appellant had permanent flexion contractures and deformities of his hands
caused by rheumatoid arthritis and repeated overuse from years of handling mail during the
performance of his job duties. Dr. Lowenstein noted that the lifting and handling of heavy mail
tubs, sacks and trays of mail, aggravated the joints and tendons in appellant’s hands and feet.
The bending and twisting required by the job aggravated pain in all affected joints, tendons and
ligaments identified in his February 13, 2006 report. Standing for extended periods of time also
exacerbated his condition. Dr. Lowenstein opined that, when appellant’s rheumatoid arthritis
was aggravated by his work duties, he had pain, stiffness and swelling in the joints, caused by
increased inflammation, which further aggravated his condition and caused continuing damage to
his joints.
The Board notes that, while none of the medical reports submitted in support of
appellant’s claim is completely rationalized, all of the reports are consistent in indicating that his
rheumatoid and osteoarthritis were aggravated by factors of his employment. Moreover, they are
not contradicted by any medical or factual evidence of record. Having discussed the results and
implications of numerous MRI scans, x-rays and nerve conduction studies which occurred during
the period of his treatment of appellant beginning in 2000, Dr. Lowenstein expressed his
unequivocal opinion that appellant’s rheumatoid and osteoarthritis resulted from and were
aggravated, exacerbated and worsened by the long-term effects of his daily duties as a carrier.
Dr. Lowenstein showed an understanding of appellant’s employment duties and explained how
the job activities caused a material worsening of his condition. The Office found that the
medical evidence presented was not supported by objective findings or medical rationale
necessary to establish a material aggravation or acceleration of his chronic underlying
rheumatoid arthritis condition. However, while Dr. Lowenstein’s reports are not sufficient to
meet appellant’s burden of proof to establish his claim, they raise an uncontroverted inference
between his claimed conditions and the identified employment factors and are sufficient to
require the Office to further develop the medical evidence and the case record.7
7

See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

6

On remand the Office should submit the statement of accepted facts to appellant’s
treating physician or to a second opinion examiner, in order to obtain a rationalized opinion as to
whether his rheumatoid arthritis and osteoarthritis was aggravated by factors of his employment.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
has met his burden of proof in establishing that his rheumatoid arthritis and osteoarthritis was
aggravated by factors of his employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 5 and April 18, 2006 and December 15, 2005 are set
aside and the case is remanded for further development consistent with this decision.
Issued: April 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7