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

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

Docket No. 10-1778
Issued: April 18, 2011

Case Submitted on the Record

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

JURISDICTION
On June 22, 2010 appellant filed a timely appeal from the March 15 and June 11, 2010
merit decisions of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act1 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 sustained bilateral carpal tunnel syndrome and ulnar nerve
entrapment as a result of employment activities.
FACTUAL HISTORY
On December 11, 2009 appellant, then a 53-year-old rural carrier, filed an occupational
disease claim alleging that he developed bilateral carpal tunnel syndrome (CTS) as a result of
complications from an August 7, 2007 motor vehicle accident and repetitive employment
1

5 U.S.C. § 8101 et seq.

activities.2 His supervisor stated that he had not worked since August 7, 2007, when he was
injured in a work-related motor vehicle accident.
The employing establishment controverted the claim, contending that appellant had not
established the fact of injury or a causal relationship between alleged work events and his
claimed condition. Sharon Boatner noted that he had not worked at the employing establishment
since October 2007 and was currently receiving disability compensation pursuant to File No.
xxxxxx642.
By letter dated December 22, 2009, the Office informed appellant that the evidence
submitted was insufficient to establish that he had sustained an injury as a result of employment
activities. Appellant was advised to submit additional information and evidence, including a
physician’s report, which contained a diagnosis and explanation as to how his diagnosed
condition resulted from the claimed employment activities.
Appellant submitted an August 18, 2009 report from Dr. Lubor Jarolimek, a treating
physician, who examined appellant for persistent numbness and weakness in the right hand and
right shoulder pain. Range of motion examination revealed abduction of 90 degrees; forward
elevation of 120 degrees. Impingement signs were positive. Dr. Jarolimek reviewed the results
of a March 13, 2009 electromyogram and nerve conduction study (EMG/NCS) of the bilateral
upper extremities, which showed bilateral carpal tunnel syndrome, right worse than left and
bilateral ulnar nerve entrapment at the canal of Guyon, both motor and sensory branches. He
also diagnosed chronic right shoulder pain, with impingement of the right shoulder.
Dr. Jarolimek noted that appellant had worked for the employing establishment for
approximately 10 years, doing repetitive-type work with his right hand and wrist. Appellant’s
duties included carrying and sorting mail, handling a thousand or more pieces of mail per day.
Dr. Jarolimek stated: “Based on reasonable medical probability, it is likely that his nerve
entrapment-like symptoms related to his carpal tunnel/ulnar nerve entrapment at the wrist are
directly related to his work, and, in my medical opinion, should be considered part of his workrelated injury.”
Appellant submitted a June 24, 2008 report from Dr. Peter J. Yeh, a Board-certified
neurological surgeon, who stated that he had sustained a work-related spinal injury on
August 7, 2007. He complained of headache, as well as pain in his shoulders neck, hips, elbows,
hands, which was aggravated by twisting, sitting and walking. Dr. Yeh diagnosed foraminal
stenosis based on the results of an October 25, 2007 magnetic resonance imaging (MRI) scan.
On October 7, 2008 he reiterated his diagnosis of cervical stenosis. Examination revealed
decreased reflexes of appellant’s wrists and elbows; significant neck spasms; and weakness of
his upper extremity in terms of hand grip, biceps and triceps bilaterally.
Appellant submitted a March 13, 2009 NCS study and EMG report from
Dr. Shivarajpur K. Ravi, a Board-certified neurologist. The study showed electrical evidence of
2

Appellant sustained a traumatic injury on August 7, 2007 in a motor vehicle accident. The Office accepted his
traumatic injury claim (File No. xxxxxx642) for disorder of the bursai; back and neck sprains; degeneration of
cervical and lumbar discs; acquired spondylolisthesis and impotence of organic origin.

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bilateral carpal tunnel syndrome, more on the right than the left side; bilateral ulnar nerve
entrapment at the canal of Guyon involving both motor and sensory branches; bilateral median
palm-to-digit sensory neuropathy; demyelinating neuropathy in both the right median wrist-todigit sensory branches; and axonal neuropathy in both the bilateral ulnar and the right median
and motor branches.
On January 6, 2010 the employing establishment reiterated its contention that appellant
had not established that he sustained a work-related injury. Arthur Estrello, customer service
supervisor, described appellant’s inside job duties as lifting lightweight letters and flats, casing
mail into a carrier case, pulling down and placing mail into a tray, and then taking it to the street
for delivery. Street tasks involved driving a vehicle and placing mail in a mailbox for
approximately five hours each day.
In a January 11, 2010 statement, appellant described his work activities as a rural carrier
eight hours a day, five days a week, which allegedly caused his claimed condition. His job
entailed 4 hours of prepping and casing, 20 minutes of loading and 3 hours of delivering mail.
Appellant submitted a position description for a rural carrier.
In a decision dated March 15, 2010, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish that his diagnosed conditions were caused by
established work-related events.
On May 1, 2010 appellant requested reconsideration.
Appellant submitted an April 1, 2010 report from Dr. Steven Seefeldt, a Board-certified
internist, who noted that he had experienced a history of bilateral hand pain, numbness and
tingling for several years with repetitive letter carrier activities. Dr. Seefeldt diagnosed bilateral
carpal tunnel syndrome. Examination revealed mildly positive Tinel’s and Phalen’s signs in both
wrists and decreased sensation along the thenar eminence in both hands. Dr. Seefeldt indicated
there was no evidence that appellant’s condition was radicular and related to his prior neck
injury. He stated: “It is within medical reasonability that his carpal tunnel findings are due to
his repetitive use of his hands required for his job, including both handling mail and driving.”
In an April 12, 2010 report, Dr. Yeh described the results of a recent EMG/NCS which
revealed bilateral CTS and Grade 1 spondylolisthesis at L5-S1.
On April 13, 2010 Dr. Jarolimek described appellant’s history of bilateral shoulder pain.
He provided findings of his examination of appellant’s shoulders. Dr. Jarolimek reported that a
recent EMG/NCS study of the bilateral upper extremities revealed bilateral CTS, right worse
than left and bilateral ulnar nerve entrapment canal of Guyon involving both motor and sensory
branches.
By decision dated June 11, 2010, the Office denied modification of its March 15, 2010
decision, finding that the medical evidence did not support that appellant had a diagnosed
condition causally related to accepted work factors.

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LEGAL PRECEDENT
An employee seeking benefits under the Act3 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 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.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6 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.7
ANALYSIS
The Board finds that this case is not in posture for a decision on whether appellant
sustained bilateral carpal tunnel syndrome as a result of his employment activities. It is not
disputed that appellant was engaged in repetitive employment activities as a rural mail carrier,
3

Id.

4

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

5

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

6

Id.

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

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including prepping, casing, loading and delivering mail. The Office denied his claim, however,
on the grounds that the evidence failed to establish a causal relationship between those activities
and his diagnosed carpal tunnel syndrome. The Board finds that the medical evidence of record
supports a causal relationship between appellant’s work activities and his wrist condition.
On August 18, 2009 Dr. Jarolimek provided examination findings and diagnosed bilateral
carpal tunnel syndrome, right worse than left and bilateral ulnar nerve entrapment at the canal of
Guyon, both motor and sensory branches. His diagnosis was supported by diagnostic test results.
Dr. Jarolimek described appellant’s repetitive work duties, which he opined was causally related
to his CTS. Dr. Jarolimek provided a specific diagnosis and identified the employment factors
believed to have caused or contributed to the condition. Although he did not explain in detail
how the employment activities were competent to cause appellant’s condition, his report strongly
supports a causal relationship between the identified activities and the CTS condition.
On April 1, 2010 Dr. Seefeldt described appellant’s history of bilateral hand pain,
numbness and tingling. He diagnosed bilateral carpal tunnel syndrome, which he attributed to
repetitive letter carrier activities, including handling mail and driving. Dr. Seefeldt specifically
indicated there was no evidence that appellant’s condition was radicular or related to his prior
neck injury. Although his report lacks a full explanation as to how appellant’s repetitive job
activities caused or contributed to appellant’s wrist condition, it does support a causal
relationship between the CTS condition and the established activities.
Dr. Yeh treated appellant for cervical stenosis related to an August 7, 2007 work injury.
On October 7, 2008 he noted decreased reflexes of appellant’s wrists and elbows and weakness
of his upper extremity in terms of hand grip, biceps and triceps bilaterally. On April 12, 2010
Dr. Yeh described the results of a recent EMG/NCS which revealed bilateral CTS. In a
March 13, 2009 EMG/NCS report, Dr. Ravi found electrical evidence of bilateral carpal tunnel
syndrome, more on the right than the left side; bilateral ulnar nerve entrapment at the canal of
Guyon involving both motor and sensory branches; bilateral median palm-to-digit sensory
neuropathy; demyelinating neuropathy in both the right median wrist-to-digit sensory branches;
and axonal neuropathy in both in the bilateral ulnar and the right median and motor branches. As
these reports do not contain an opinion on causal relationship, they are of limited probative value
on that issue. They do, however, support appellant’s claim that he was diagnosed and treated for
carpal tunnel syndrome during the alleged period.
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in indicating that he sustained an employmentrelated wrist condition, and are not contradicted by any substantial medical or factual evidence of
record. While the reports are not sufficient to meet his burden of proof to establish his claim,
they raise an uncontroverted inference between appellant’s diagnosed condition and the
identified employment factors and are sufficient to require the Office to further develop the
medical evidence and the case record.8 The case will be remanded to the Office to obtain a
rationalized opinion from a qualified physician as to whether appellant’s carpal tunnel and nerve
8

See Virginia Richard, supra note 7; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

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entrapment conditions are causally related to the identified work activities. After such
development as it deems necessary, the Office should issue an appropriate decision in order to
protect appellant’s rights on appeal.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant
sustained bilateral carpal tunnel syndrome and ulnar entrapment as a result of identified
employment activities.
ORDER
IT IS HEREBY ORDERED THAT the June 11 and March 15, 2010 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for action
consistent with the terms of this decision.
Issued: April 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, CROOKED HILL
POST OFFICE, Harrisburg, PA, Employer
__________________________________________

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

Docket No. 19-1617
Issued: June 3, 2020

Case Submitted on the Record

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

JURISDICTION
On July 25, 2019 appellant filed a timely appeal from an April 2, 2019 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 2, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
for intermittent periods from July 8, 2017 through June 8, 2018 causally related to his accepted
employment condition.
FACTUAL HISTORY
On June 22, 2018 appellant, then a 51-year-old mail processing clerk, filed an occupational
disease claim (Form CA-2) alleging that he acquired bilateral hand contact dermatitis due to factors
of his federal employment. He noted that he first became aware of his claimed condition on
June 10, 2017 and that it was caused or aggravated by his federal employment on July 31, 2017.
On September 12, 2018 OWCP accepted the claim for dermatitis, bilateral hands.
On February 1, 2019 appellant submitted the first of a series of claims for wage-loss
compensation (Form CA-7) for temporary total disability from work covering the period July 8
through 21, 2017. OWCP received additional Form CA-7 claims for wage-loss compensation for
intermittent periods through June 8, 2018. In corresponding time analysis forms (Form CA-7a),
the employing establishment controverted the claims noting that the medical evidence submitted
indicated that appellant could work without restrictions. It further noted that gloves were not
required and that appellant instead chose to wear gloves.
In a July 31, 2017 report, Dr. Matthew Helm, a Board-certified dermatologist, indicated
that appellant had contact hand dermatitis secondary to nitrite gloves which exacerbated his
condition. He indicated that appellant was able to return to work on July 31, 2017 and requested
that he be provided with an alternative type of glove.
In school/work excuse notes, Dr. Alexandria Flamm, a Board-certified dermatologist,
advised that appellant had contact dermatitis and that he could return to work with no restrictions
on December 14 and 26, 2017, and May 10, 19, and 24, 2018.
In a March 12, 2018 work release note, Dr. Flamm indicated that appellant should avoid
activities involving bending, lifting, or other exertional activities which caused sweating for the
period March 12 through 16, 2018.
In a June 15, 2018 report, Dr. Flamm indicated that she had treated appellant since
December 2017 for severe hand dermatitis that had been recalcitrant to multiple oral and tropical
treatments. She indicated that a flare-up of his condition caused pain and many open areas on his
hands and prevented him from working from May 1 through 24, 2018. Dr. Flamm noted that she
had evaluated appellant for that flare-up on May 15, 2018.
In a June 22, 2018 report, Dr. Flamm explained that, since appellant’s dermatitis condition
flared when he was at work and improved when he was not working, she believed that his condition
was likely exacerbated by materials he was coming into contact with while working, specifically
the gloves he used at work. She added that avoiding use of these gloves would likely greatly
improve his condition.

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On July 13, 2018 Dr. Flamm indicated that appellant’s persistent hand dermatitis flared up
only when he was at work. She performed a biopsy to rule out etiology other than eczematous
process. The surgical pathology report of July 18, 2018 favored the diagnosis of a chronic
spongiotic dermatitis, such as a chronic eczematous process.
In a November 20, 2018 school/work excuse request message, Dr. Helm advised that
appellant had severe hand dermatitis from July 10 to August 4, 2017 and was unable to work. He
opined that this was likely due to an occupational exposure to nitrite gloves that he was required
to wear.
In a report dated November 20, 2018, Dr. Flamm noted that appellant had a flare up of his
dermatitis condition in May 2018 and was seen on May 15, 2018. She noted that he had initially
indicated that he had missed work from May 1 to 24, 2018 due to this flare, but he had now
indicated that he had in fact missed work from May 6 to June 3, 2018.
In a February 19, 2019 memorandum of telephone call (Form CA-110), the employing
establishment advised that light duty was available for appellant during the entire claimed period
of disability from work.
In a February 19, 2019 development letter, OWCP acknowledged receipt of appellant’s
claim for wage-loss compensation beginning July 8, 2017 and advised that additional evidence
was needed to establish disability from work during the claimed periods. It advised that the
evidence indicated that a light-/limited-duty assignment was available within appellant’s medical
restrictions with the employing establishment for the period of claimed lost time where gloves
were not necessary, and requested evidence to support why he did not work the light-/limited-duty
assignment. OWCP afforded appellant 30 days to submit the requested medical evidence.
In a February 28, 2019 letter, appellant indicated that since 2017 he had suffered from a
severe dermatitis reaction to the gloves that the employing establishment issued and that he had
been disciplined for his absences from work, which were mostly due to the reaction from using
the gloves while working. He indicated that he was unable to work during flare-ups of his
dermatitis condition as his hands were so raw that he was unable to perform simple grasping.
Appellant denied knowing that light-duty work was available. He indicated that the medical
documentation supported his absences and that he was claiming 304 hours for intermittent periods
from July 8, 2017 through June 8, 2018.
By decision dated April 2, 2019, OWCP denied appellant’s claim for compensation
intermittent disability for the period July 8, 2017 through June 8, 2018. It noted that on
February 19, 2019 the employing establishment had advised that there was work available during
his claimed periods of disability and found that appellant had not addressed why he had not
accepted the light duty that was made available to him.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.3 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.4 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.5
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury. Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 Rationalized medical evidence is medical evidence
which includes a physician’s detailed medical opinion on the issue of whether there is a causal
relationship between the claimant’s claimed disability and the accepted employment injury. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the claimed period of disability and the accepted
employment injury.8
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.9 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so

3

See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

4

Id.

5

20 C.F.R. § 10.5(f); B.O., supra note 3; N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id.

7

J.M., Docket No. 19-0478 (issued August 9, 2019).

8

R.H., Docket No. 18-1382 (issued February 14, 2019).

9
20 C.F.R. § 10.501(a); see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57
ECAB 183 (2005).

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would essentially allow an employee to self-certify his or her disability and entitlement to
compensation.10
ANALYSIS
The Board finds the case is not in posture for decision.
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.11 Its regulations at 20 C.F.R. § 10.126
provides that the decision of the Director of OWCP shall contain findings of fact and a statement
of reasons. As well, OWCP’s procedures provide that the reasoning behind OWCP’s evaluation
should be clear enough for the reader to understand the precise defect of the claim and the kind of
evidence which would overcome it.12
On September 12, 2018 OWCP accepted appellant’s claim for bilateral hand dermatitis.
Appellant has alleged that his accepted condition and periods of disability were due to the nitrate
gloves he wore at work, which were furnished by the employing establishment. The employing
establishment disputed that appellant was required to wear gloves at work. The issue of whether
and why appellant wore employing establishment-furnished gloves at work is central to the issue
of whether appellant was disabled from work during the time periods alleged, as appellant has
claimed that he was disabled due to wearing gloves at work. However, OWCP did not make any
findings of fact regarding this issue.
The Board also notes that the employing establishment indicated that light work was made
available to appellant during the relevant time periods and OWCP denied appellant’s disability
wage-loss claims on this basis. However, OWCP did not make findings as to the nature of the
light work offered to appellant, whether or not it required that gloves be worn, or whether it could
be performed with appellant’s accepted dermatitis condition without gloves. It also did not make
findings as to whether any light-duty work was offered to appellant in writing. OWCP merely
cited a February 19, 2019 telephone call from the employing establishment wherein it was
indicated that light-duty work was available for appellant during the time periods alleged. The
Board notes that there is no written evidence of record that the employing establishment offered
appellant any light-duty assignment in writing during these periods. 20 C.F.R. § 10.500(a)
provides that, in an accepted claim, an employee is not entitled to compensation for any wage loss
claimed on a Form CA-7 to the extent that evidence contemporaneous with the period claimed on
a Form CA-7 establishes that an employee had medical work restrictions in place, that light duty
within those work restrictions was available, and that the employee was previously notified in
writing that such duty was available.
On remand OWCP shall further develop the claim to determine whether appellant was
furnished gloves by the employing establishment, if so why he was furnished gloves. It shall also
10

See V.B., Docket No. 18-1273 (issued March 4, 2019); S.M., Docket No. 17-1557 (issued September 4, 2018);
William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
11

5 U.S.C. § 8124(a).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

5

determine the nature of the light-duty work offered to appellant and whether such light-duty work
was offered in writing. After this and such other further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion.
Issued: June 3, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF TRANSPORTATION SYSTEMS
ENGINEERING & CONSTRUCTION,
Paris, TN, Employer
__________________________________________

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Appearances:
Mark Nolan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0402
Issued: November 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On December 13, 2018 appellant, through counsel, filed a timely appeal from an
August 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.3
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for appellant’s
lumbar surgery.
FACTUAL HISTORY
On August 24, 2016 appellant, then a 65-year-old survey technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 1, 2016, he was cutting a tree while in the
performance of duty, when it fell and hit his head and right shoulder, causing him to fall to the
ground with a hard jolt. He did not indicate that he had stopped work.
In an August 12, 2016 report, Dr. Keith Starkweather, a Board-certified orthopedic
surgeon, diagnosed a complete right shoulder rotator cuff tear or rupture of the right shoulder and
labral tear of the long head of the right biceps tendon. He recommended surgery.
On September 8, 2016 OWCP accepted the claim for strain of muscle, fascia, and tendon
of long head of biceps of right arm, and complete rotator cuff tear or rupture of the right shoulder.
On September 16, 2016 Dr. Starkweather performed a right shoulder arthroscopy with
arthroscopic rotator cuff repair.
In a December 7, 2016 report, Dr. Starkweather indicated that appellant related that he also
hurt his lower back and began having low back pain after his employment injury. He noted that
appellant had a prior lumbar fusion surgery in 2008 at L4-5, and indicated that he had reviewed a
2008 lumbar magnetic resonance imaging (MRI) scan and a June 14, 2016 lumbar MRI scan.
Dr. Starkweather restricted appellant from work and opined that it was likely that the employment
injury had aggravated his preexisting lumbar spinal stenosis and degenerative disc disease.
On January 6, 2017 OWCP expanded acceptance of the claim to include aggravation of
spinal stenosis, lumbar region, and aggravation of disc degeneration, lumbar region. It paid
appellant wage-loss compensation benefits on the supplemental rolls as of January 18, 2017 and
on the periodic rolls effective March 5, 2017.
In a February 21, 2017 report, Dr. Richard Lebow, a Board-certified neurosurgeon, noted
appellant’s history of injury and treatment. He indicated that appellant had severe low back pain

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the August 17, 2018 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.

2

following his March 1, 2016 employment injury, which radiated down the back of both legs and
into his knees. Dr. Lebow recommended a lumbar fusion from L3 to L5.
On April 7, 2017 OWCP received a request for authorization for lumbar spine fusion from
L3 to L5, and insertion of a spinal fixation device.
On April 10, 2017 OWCP referred the request for authorization to an OWCP district
medical adviser (DMA).
OWCP received a May 5, 2017 report from Dr. Nizar Souayah, a Board-certified
neurologist serving as a DMA. Dr. Souayah determined that there was no clear evidence that
appellant exhausted all conservative therapies, including adequate trials of physical therapy and
epidural injections. He indicated that appellant’s neurological examination was not focal, and he
found no clear evidence of instability, fracture, or spinal cord compression that required surgery
without documentation of failed conservative therapies. Dr. Souayah also noted that there was no
documentation of a recent electromyography (EMG) scan supporting a diagnosis of lumbar
radiculopathy.
On June 1, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. Deborah St. Clair, a Board-certified orthopedic surgeon. In a report dated June 20, 2017,
Dr. St. Clair reviewed the statement of accepted facts (SOAF), appellant’s history of injury, his
medical records, and noted appellant’s reports of back pain. She examined him and noted that
there was “evidence of disease and symptom magnification.” Dr. St. Clair explained that appellant
had failed surgery, had chronic pain, and did not follow the usual wellness curve of improvement.
She opined that he would not benefit from lumbar fusion surgery. Dr. St. Clair explained that the
“decompression of spinal stenosis will get people walking further before claudication, but is not
very effective in pain claims.” She opined that she did not expect improvement with time or with
repeated surgery for appellant’s back or his shoulder.
By decision dated August 7, 2017, OWCP denied authorization for the requested lumbar
spine fusion surgery. It found that the weight of the medical opinion evidence rested with
Dr. St. Clair who concluded that the requested treatment was not medically necessary for
appellant’s accepted employment injury.
On October 24, 2017 appellant, through counsel, requested reconsideration.
In an August 17, 2017 report, Dr. Lebow noted that he had followed appellant since
February 21, 2017. He indicated that appellant was doing well until he was struck by a large tree
limb falling on his back. Dr. Lebow explained that appellant had worsening back and leg
symptoms. He indicated that he had reviewed appellant’s lumbar MRI scan from June 14, 2016,
which revealed L4-5 decompression and fusion. Dr. Lebow found appellant currently had L3-4
spondylolisthesis and advised that the L3 bone moved forward on L4. He also noted that there
was “very severe spinal stenosis behind this.” Dr. Lebow related that given appellant’s severe
symptoms as well as his failure to respond to extensive conservative therapy over the past year, he
had recommended surgery in the form of an L3 through L5 decompression and fusion. He opined
that it was “irresponsible and dangerous” to deny this surgery for appellant as he was getting
weaker in his legs, had very severe spinal stenosis, and was suffering from excruciating back and

3

leg pain. Dr. Lebow concluded that denying appellant the requested surgery placed him at risk for
not only lower extremity paralysis, but also bowel and bladder dysfunction on top of the pain and
suffering that he was enduring.
In a September 6, 2017 report, Dr. Lebow noted that appellant had severe spinal stenosis
at L3-4 and spondylolisthesis, with an underlying L4-5 fusion decompression. He explained that
the conditions were worsened by the employment injury and repeated the request for an L3 to L5
decompression and fusion.
In a September 25, 2017 operative report, Dr. Lebow noted that he performed an L3-4
decompressive lumbar laminectomy for medial facetectomy for stenosis, L3-5 posterior
arthrodesis, L3-5 posterior arthrodesis, L3-5 posterior instrumentation, pedicle screws and rods,
insertion of biomechanical device, DePuy titanium interbody cage at L3-4, L3-4 posterior
interbody arthrodesis, and bone marrow aspirate of iliac crest through separate stab fascial incision.
In an October 18, 2017 report, Dr. Starkweather noted that appellant was recovering well
from his lumbar spine surgery. He indicated that appellant had reached maximum medical
improvement.
By decision dated January 16, 2018, OWCP denied modification of the August 7, 2017
decision. It found that the new evidence was not sufficient to support that the lumbar surgery was
medically indicated.
Appellant, through counsel, requested reconsideration on June 19, 2018 and submitted
additional medical evidence.
A February 19, 2018 MRI scan of appellant’s lumbar spine read by Dr. Vineet Sharma, a
Board-certified diagnostic radiologist, revealed severe degenerative changes of the lumbar spine
at L2-3 and L5-S1, including moderate degrees of foraminal and central canal stenosis.
OWCP received February 7 and 23, 2018 treatment notes from Dr. Lebow. Dr. Lebow
noted that appellant continued to have pain in his back and diagnosed lumbar radiculopathy. He
noted that he had reviewed the recent MRI scan results and there was disease at L2-3. Dr. Lebow
related that he would reexamine appellant in a year.
Dr. Lebow provided a June 13, 2018 response to questions from counsel. He indicated that
his objective findings included severe spinal stenosis, spondylolisthesis, and prior adjacent level
fusion. Dr. Lebow responded “yes” with regard to whether he agreed that appellant underwent an
L3-5 surgical decompression and fusion with a diagnosis of lumbar spinal stenosis and lumbar
spondylolisthesis, which was more probable than not the result of the March 1, 2016 employment
injury, and that appellant had required treatment for his lumbar spinal stenosis and lumbar
spondylolisthesis, resulting in L3-4 decompression and fusion.
OWCP received treatment notes dated May 2 and 30, June 20 and 27, and July 11, 25,
and 30, 2018, from Dr. Peter Kroll, Board-certified in pain medicine. Dr. Kroll diagnosed chronic
pain, failed back syndrome of lumbar spine, degenerative disc disease of the lumbar spine, rotator
cuff syndrome of right shoulder, neck pain, and lumbar spondylosis.

4

By decision dated August 17, 2018, OWCP denied modification of the January 16, 2018
decision.
LEGAL PRECEDENT
Section 8103 of FECA4 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or period of disability, or aid in lessening the amount of monthly compensation.5 While
OWCP is obligated to pay for treatment of employment-related conditions, the employee has the
burden of proof to establish that the expenditure is incurred for treatment of the effects of an
employment-related injury or condition.6
Section 10.310(a) of OWCP’s implementing regulations provides that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.7
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.8
Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.10
ANALYSIS
The Board finds that this case is not in posture for decision.

4

5 U.S.C. § 8103.

5

See J.L., Docket No. 18-0990 (issued March 5, 2019); Thomas W. Stevens, 50 ECAB 288 (1999).

6

D.C., Docket No. 18-0080 (issued May 22, 2018); Kennett O. Collins, Jr., 55 ECAB 648 (2004).

7

20 C.F.R. § 10.310(a).

8

J.T., Docket No. 18-0503 (issued October 16, 2018); D.K., 59 ECAB 141 (2007); Daniel J. Perea, 42 ECAB 214,
221 (1990).
9

5 U.S.C. § 8123(a).

10

V.K., Docket No. 18-1005 (issued February 1, 2019).

5

In a June 20, 2017 report, Dr. St. Clair, an OWCP second opinion examiner, reviewed
appellant’s medical records and a SOAF. She indicated that his physical examination revealed
evidence of disease, symptom magnification, a failed surgery, and chronic pain. Dr. St. Clair
opined that appellant would not benefit from lumbar fusion surgery. She explained that the
decompression of spinal stenosis was not very effective in pain claims. The DMA concurred with
her findings.
In support of his request for authorization of surgery, appellant submitted several reports
from his treating physician, Dr. Lebow. In his August 17, 2017 report, Dr. Lebow explained that
appellant was doing well until the employment injury during which a tree limb fell on his back.
He described appellant’s worsening back and leg symptoms, reviewed the lumbar MRI scan from
June 14, 2016, noted that currently appellant’s L3 bone had moved forward on L4, and indicated
that there was “very severe spinal stenosis behind this.” Dr. Lebow recommended surgery in the
form of an L3 through L5 decompression and fusion “given his severe symptoms as well as his
failure to respond to extensive conservative therapy over the past year.” He also indicated that
appellant was getting weaker in his legs, had severe spinal stenosis, and was suffering from
excruciating back and leg pain. Dr. Lebow explained that denying the surgery placed appellant at
risk of lower extremity paralysis and bowel and bladder dysfunction.
The Board finds that the report of Dr. St. Clair is in equipoise with the report of Dr. Lebow
with regard to whether appellant’s lumbar surgery should be authorized.
Both physicians provide a description of the employment injury and both discuss the
medical evidence and their physical findings, while Dr. St. Clair opined that the surgery was not
medically necessary, Dr. Lebow opined that it was necessary. Both physicians provided rationale
in support of their respective opinions. The Board, therefore, finds that a conflict in medical
opinion has been created regarding whether appellant’s lumbar surgery should be authorized.
Section 8123 of FECA provides that if there is a disagreement between the physician making the
examination for the United States and the employee’s physician, OWCP shall appoint a third
physician who shall make an examination.11
The case will be remanded to OWCP to refer appellant, the medical record, and a SOAF,
to an appropriate specialist to obtain an impartial medical opinion regarding whether lumbar
surgery should be authorized. Following this and any other development deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11
5 U.S.C. § 8123(a); see W.B., Docket No. 17-1994 (issued June 8, 2018); see also A.D., Docket No. 17-1855
(issued February 26, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: November 13, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OUTPATIENT CLINIC, Redding, CA, Employer
__________________________________________

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

Docket No. 17-2012
Issued: October 18, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 28, 2017 appellant, through counsel, filed a timely appeal from a July 19,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision, dated May 2, 2016, 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 his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows. On July 16, 2012 appellant, then a 56-year-old physician, filed an occupational disease
claim (Form CA-2) for injuries to his right thumb and left ring finger due to the change in use of
endoscopes. He identified October 1, 2010 as the date he first became aware of his condition, and
also the date he first realized it was caused or aggravated by his federal employment. Appellant
received treatment at the time, which included an injection in the left finger, and with use of
splints/gloves appellant’s condition improved. However, his right thumb and left finger pain
returned after appellant started working with new, stiffer endoscopes beginning in February 2012.
The employing establishment indicated that it had since reduced the number of consecutive days
appellant performed the procedures that exacerbated his condition.
OWCP initially denied the claim on October 4, 2012, finding that the medical evidence of
record failed to establish a causal relationship between appellant’s diagnosed condition of right
elbow lateral epicondylitis and his accepted employment exposure. By decision dated June 10,
2013, the Board affirmed OWCP’s October 4, 2012 decision.4
OWCP twice denied modification by decisions dated September 23, 2013 and
November 12, 2014. In a September 10, 2015 decision, the Board affirmed OWCP’s
November 12, 2014 merit decision finding that the medical evidence of record failed to establish
a causal relationship between appellant’s diagnosed condition(s) and his accepted employment
exposure.5
On February 3, 2016 counsel requested reconsideration and submitted additional medical
evidence.
In a January 7, 2016 report, Dr. Jacqueline T. Hanna, III, a Board-certified orthopedic
surgeon, noted that the 60-year-old appellant had ongoing complaints of right thumb pain and
locking after working at the employing establishment from 2009 until January 2014 while
performing 70 to 100 endoscopic procedures a month. She explained that appellant stated he was
“always given new equipment that required him to perform a very firm grip and lots of squeezing
that caused continuous pressure in his [right] hand” while twisting the scope into position and
advancing it. Appellant complained that his hand would become “very fatigued and painful” and
his right thumb had a “locking sensation.”
3

Docket No. 13-0555 (issued June 10, 2013) and Docket No. 15-0377 (issued September 10, 2015).

4

Docket No. 13-0555 id.

5

Docket No. 15-0377, supra note 3.

2

Dr. Hanna related that appellant had undergone multiple steroid injections of his right
thumb, but he experienced continued discomfort and wore splints on both hands to decrease the
pain while performing endoscopic procedures. Appellant reported the discomfort to the employing
establishment. Dr. Hanna noted that appellant last worked in January 2014 (modified duties). She
examined appellant’s right thumb and found pain along the A1 pulley region of the thumb, with
flexion at the interphalangeal (IP) joint and active extension. Dr. Hanna diagnosed overuse
syndrome with a right trigger thumb. She opined that it was 100 percent medically probable that
appellant’s condition resulted from his work with the employing establishment as a
gastroenterologist performing hundreds of endoscopic procedures. Dr. Hanna concluded: “I feel
this is clearly an overuse syndrome due to the particular motion that he has to perform while
gripping and grasping the endoscopy unit.”
On May 2, 2016 OWCP denied modification of its prior decision, which had been affirmed
by the Board.6 It explained that there was no rationalized medical evidence establishing that
appellant’s thumb and trigger finger condition were causally related to the employment factors of
performing endoscopic procedures. OWCP also found that Dr. Hanna’s opinion was “equivocal.”
On April 24, 2017 counsel again requested reconsideration and submitted new medical
evidence.
In a March 28, 2017 report, Dr. Hanna noted that appellant presented for evaluation of his
right thumb pain and locking. She reiterated appellant’s history of his symptoms which developed
while performing multiple endoscopic procedures each month at the employing establishment
from 2009 to 2014. Dr. Hanna evaluated appellant on March 7, 2017 for pain involving his right
thumb and they discussed his “thorough description” of his job duties as a gastroenterologist with
the employing establishment.
Dr. Hanna explained that appellant had to hold the endoscope with his left hand and use
his right hand to maneuver the knobs of the endoscope “in a very tortuous structure” to obtain the
most optimal visualization of the areas of interest. Then, appellant had to switch hands and push
buttons with his left hand throughout the procedure. Dr. Hanna added that appellant used both
hands in the same motion several times throughout the day on several days during the week.
Dr. Hanna opined that based upon the extensive amount of gripping and twisting that
appellant performed while at work, it was easily conceivable that he had overuse syndrome and
that his injury is 100 percent work related.
By decision dated July 19, 2017, OWCP denied appellant’s April 24, 2017 request for
reconsideration, finding that the evidence submitted was insufficient to warrant merit review of
the May 2, 2016 decision. It reasoned that the March 28, 2017 medical report was cumulative and
thus substantially similar to evidence or documentation already in the case file and previously
considered. OWCP explained that Dr. Hanna failed to address how appellant’s condition
worsened after he stopped work in 2014 and was no longer exposed to the claimed employment
activities. It also noted that Dr. Hanna’s latest report restated the same findings and conclusory

6

Id.

3

causality statements in her January 7, 2016 report, but with slightly different wording, and did not
discuss the deficiencies noted in OWCP’s May 2, 2016 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.7 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.8 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.9
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.10 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.11
ANALYSIS
Counsel disagreed with the May 2, 2016 decision and timely requested reconsideration on
April 24, 2017. The underlying issue on reconsideration is the medical question of causal
relationship. Thus, the Board must determine if counsel presented sufficient evidence or argument
regarding causal relationship to warrant a merit review pursuant to 5 U.S.C. § 8128(a).
Section 10.608(b) provides that OWCP will deny an application for review which does not
meet at least one of the requirements under section 10.606(b)(3). The Board finds that OWCP’s
refusal to reopen appellant’s case for further consideration of the merits of his claim did not
constitute an abuse of discretion. In the April 24, 2017 request for reconsideration, counsel did
not show that OWCP erroneously applied or interpreted a specific point of law, nor did he advance
a new and relevant legal argument not previously considered. Consequently, appellant was not
entitled to a review of the merits based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).

7
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.607.

9

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. 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).
10

20 C.F.R. § 10.606(b)(3).

11

Id. at § 10.608(a), (b).

4

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.12 If OWCP should determine that the
new evidence submitted lacks probative value, it may deny modification of the prior decision, but
only after the case has been reviewed on the merits.13 The Board has also held that the submission
of evidence which duplicates or is substantially similar to evidence already in the case record does
not constitute a basis for reopening a case.14
In 2016, Dr. Hanna diagnosed overuse syndrome with a right trigger thumb and opined that
it was 100 percent medically probable that appellant’s condition resulted from his work with the
employing establishment as a gastroenterologist performing hundreds of endoscopic procedures.
She further noted that she felt this was clearly an overuse syndrome due to the particular motion
that he had to perform while gripping and grasping the endoscopy unit. In 2017, Dr. Hanna again
diagnosed overuse syndrome resulting in a right thumb condition and opined that based upon the
extensive amount of gripping and twisting that appellant performed while at work, it was easily
conceivable that his injury is 100 percent work related. Although newly submitted, Dr. Hanna’s
March 28, 2017 report is essentially duplicative of evidence previously of record, and therefore,
does not justify further merit review.15 Accordingly, as appellant’s request for reconsideration did
not meet the requirements for reopening his case, the Board finds that OWCP properly denied
merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

12

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

13

See Dennis J. Lasanen, 41 ECAB 933 (1990).

14

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

15

See supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the July 19, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 18, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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

Docket No. 08-622
Issued: October 22, 2008

Case Submitted on the Record

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

JURISDICTION
On December 28, 2007 appellant filed a timely appeal from a September 28, 2007
nonmerit decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. As more than one year has elapsed since the last merit decision and the filing of
this appeal, the Board lacks jurisdiction to review the merits of the case.1 Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the September 28, 2007 nonmerit
decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review of
her claim pursuant to 5 U.S.C. § 8128.

1

See 20 C.F.R. §§ 501.2(c), 501.3.

FACTUAL HISTORY
On January 11, 2000 appellant, then a 35-year-old customer service representative, filed
an occupational disease claim alleging that she sustained carpal tunnel syndrome causally related
to factors of her federal employment. The Office accepted her claim for neck strain and bilateral
carpal tunnel syndrome. Appellant underwent a right carpal tunnel release on July 26, 2000 and
a left carpal tunnel release on October 11, 2000. On January 1, 2001 she returned to work with
restrictions.
Appellant filed claims for compensation on account of disability requesting compensation
for May 22 through June 25, 2001 and October 9 through 12, 2001. On October 29, 2001 she
filed a recurrence of disability claim on October 9, 2001 due to her accepted employment injury.
Appellant stopped work on October 9, 2001 and returned to work on October 15, 2001. By
decision dated February 25, 2002, the Office found that the medical evidence was insufficient to
establish that she sustained an employment-related recurrence of disability beginning
October 9, 2001.
On March 5, 2001 appellant requested an oral hearing, which was held on July 25, 2002.
By decision dated October 30, 2002, the hearing representative affirmed the Office’s
February 25, 2002 decision. He found that the medical evidence failed to show that appellant’s
condition changed such that she was unable to perform the duties of her limited-duty
employment from May 22 through June 25, 2001 or October 9 through 12, 2001.
On October 27, 2003 appellant requested reconsideration of her claim. By decision
January 13, 2004, the Office denied modification of its October 30, 2002 decision. It noted that
appellant attributed her condition to continuing factors of employment and advised her to file a
new occupational disease claim.
Appellant again requested reconsideration on May 20, 2004. In an August 16, 2004
decision, the Office denied modification of its January 13, 2004 decision. On August 12, 2005
appellant requested reconsideration. By decision dated September 9, 2005, the Office denied
modification of its August 16, 2004 decision. It noted that it had previously instructed her to file
another occupational disease claim as she cited additional work exposure as a cause of her
condition.
On September 8, 2006 appellant requested reconsideration of the claim. She stated, “I
have attached additional documentation to support that I am injured due to working for the
[employing establishment] for 20 plus years.” Appellant asked that the Office consider her
claims for compensation from 2004 to 2006 and that the Office compensate her for “medical
breaks.” She attached a January 3, 2006 letter from the Office requesting that she submit
medical evidence supporting her claims for compensation on account of disability (Forms CA-7)
for the period April to June 2005.
With her request for reconsideration, appellant submitted a February 15, 2005 progress
report from Dr. Michael P. Azevedo, a Board-certified internist and physiatrist, who diagnosed
chronic neck and shoulder girdle pain and overuse syndrome of the upper extremity. She also
resubmitted an April 4, 2005 report from Dr. Azevedo. In a certification of health care provided

2

form dated May 30, 2006, Dr. Azevedo diagnosed cervical disc problems and bilateral carpal
tunnel syndrome. He opined that appellant might require as much as two weeks off every two
months. Dr. Azevedo found that she could work with restrictions.
In form reports dated February 27 and July 6, 2006, Dr. Azevedo diagnosed chronic
overuse syndrome, chronic discogenic neck pain and bilateral carpal tunnel syndrome. He
checked “yes” that the condition was employment related and found that appellant required
medical breaks to prevent increased neck and upper extremity pain. Dr. Azevedo opined that she
was partially disabled for the periods in an attached document. Appellant provided a list of dates
missed from work due to her medical condition in 2004 and 2005.2 In a decision dated
September 21, 2006, the Office denied her request for reconsideration on the grounds that it was
untimely filed and did not present clear evidence of error. By order dated May 21, 2007, the
Board set aside the September 21, 2006 decision.3 The Board found that the request for
reconsideration was timely as it was unable to determine whether the postmark associated with
the request was from the envelope containing appellant’s reconsideration request. The Board
remanded the case for the Office to consider her timely reconsideration request.
By decision dated September 28, 2007, the Office determined that it was unclear whether
appellant was requesting reconsideration of the September 9, 2005 decision or of a development
letter dated January 3, 2006 which was attached to the request. It noted that she was unable to
request reconsideration of the January 3, 2006 development letter as it was not a final decision.
The Office thus treated appellant’s September 8, 2006 letter as a request for reconsideration of
the most recent decision dated September 9, 2005. It denied her request for reconsideration after
finding that it was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.5 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
2

The record contains numerous other medical reports submitted subsequent to the Office’s last merit decision.

3

Order Remanding Case, Docket No. 07-183 (issued May 21, 2007).

4

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
5

20 C.F.R. § 10.606(b)(2).

6

20 C.F.R. § 10.607(a).

7

20 C.F.R. § 10.608(b).

3

The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.8 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.9 While the 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.10
ANALYSIS
The Office accepted that appellant sustained neck strain and bilateral carpal tunnel
syndrome due to factors of her federal employment. Appellant underwent bilateral carpal tunnel
releases in July and October 2000 and resumed limited-duty employment on January 1, 2001.
She filed claims for compensation on account of disability for the periods May 22 through
June 25, 2001 and October 9 through 12, 2001. Appellant also alleged that she sustained a
recurrence of disability from October 9 to 15, 2001. In decisions from 2002 to 2006, the Office
found that she had not submitted sufficient medical evidence to show that she was disabled from
her limited-duty position during the periods in question.
On September 8, 2006 appellant requested reconsideration of the claim. She indicated
that she had included evidence showing that she was injured due to her work for the employing
establishment. Appellant requested that the Office consider her claims for compensation from
2004 to 2006 and that the Office compensate her for “medical breaks.” She attached a January 3,
2006 letter from the Office requesting that she submit medical evidence supporting her claims
for compensation on account of disability (Forms CA-7) for the period April to June 2005.
In support of her request for reconsideration, appellant resubmitted an April 4, 2005
report from Dr. Azevedo. Evidence which repeats or duplicates evidence already in the case
record, however, has no evidentiary value and does not constitute a basis for reopening a case.11
In a February 15, 2005 progress report, Dr. Azevedo diagnosed chronic neck and
shoulder girdle pain and overuse syndrome of the upper extremity. In a May 30, 2006 form
report, he diagnosed cervical disc problems and bilateral carpal tunnel syndrome. Dr. Azevedo
indicated that she could work with listed limitations but may require up to two weeks off every
two months. In February 27 and July 6, 2006 form reports, he diagnosed chronic overuse
syndrome, chronic discogenic neck pain and bilateral carpal tunnel syndrome. Dr. Azevedo
opined that appellant required medical breaks to prevent an increase in pain. He indicated that
she was partially diagnosed for dates listed in an attached document. Appellant provided a list of
dates missed from work due to her medical condition in 2004 and 2005. The relevant issue,
however, is whether she has established disability for employment for the periods May 22
through June 25, 2001 and October 9 through 15, 2001. None of the evidence submitted with
8

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

9

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

11

Richard Yadron, 57 ECAB 207 (2005).

4

appellant’s request for reconsideration addresses these periods. Evidence that does not address
the particular issue involved does not warrant reopening a case for merit review.12
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or constitute
new and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.13
CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review of
her claim pursuant to section 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2007 is affirmed.
Issued: October 22, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12

Freddie Mosley, 54 ECAB 255 (2002).

13

The record contains numerous other reports from Dr. Azevedo dated 2005 to 2007; however, none of these
reports addresses the extent of appellant’s disability for the relevant dates in 2001 and thus are insufficient to
warrant reopening her case for merit review. Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
)
)
)
and
)
)
DEPARTMENT OF ENERGY, SOUTHWESTERN )
POWER ADMINISTRATION, Springfield, MO,
)
Employer
)
____________________________________________ )
H.N., Appellant

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

Docket No. 09-1838
Issued: June 14, 2010

Case Submitted on the Record

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

JURISDICTION
On July 13, 2009 appellant filed a timely appeal from the March 30, 2009 merit decision
of the Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant
to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant sustained an injury while in the performance of duty on
July 3, 2007.
FACTUAL HISTORY
On July 9, 2007 appellant, a 60-year-old maintenance worker foreman, filed a traumatic
injury claim alleging that on July 3, 2007 he experienced chest pains and shortness of breath
while installing an air conditioner. He stated that he was sprayed directly in the face with Freon,
which escaped from a punctured coil.

Appellant was transported to Freeman West Hospital on the date of the alleged incident.
He was treated by Dr. Chad Boutware, an emergency room physician, who reported that
appellant’s chest pains began while he was lifting an air conditioner at work. The record
contains laboratory test results, a report of a chest x-ray, and an EKG report, all dated
July 3, 2007. Dr. Boutware diagnosed “chest pains, nonspecific.”
On April 21, 2008 appellant filed a Form CA2-a, alleging that he experienced a
recurrence of his original July 3, 2007 injury on July 15, 2007, when he sustained a heart attack.
He stated that on July 9, 2007 he had undergone foot surgery for Morton’s neuroma. Appellant
stopped work on July 15, 2007 and did not return until September 17, 2007.
In a letter dated May 6, 2007, the Office advised appellant that the information submitted
was insufficient to establish his claim and allowed him 30 days to submit additional information,
including a detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to whether he sustained a traumatic cardiac or pulmonary condition on
July 3, 2007 as a result of the alleged incident and, if so, whether he sustained a recurrence of the
diagnosed condition.
The record contains a July 9, 2007 report from Dr. Robert F. Mahnken, a Board-certified
orthopedic surgeon, who performed a neuroma excision of the right second interspace on that
date.
Dr. Mahnken’s July 5, 2007 presurgical examination of appellant revealed no
cardiovascular, respiratory or neurological symptoms.
The record contains a July 15, 2007 emergency room report reflecting that appellant was
treated on that date by Dr. Gregory J. Kutter, Board-certified in emergency medicine, for chest
pain. Appellant stated that he had experienced ongoing pressure and discomfort for about 12
days, since he was exposed to refrigerant. The record also contains reports of a July 15, 2007
EKG and chest x-ray.
Appellant submitted a July 16, 2007 report from Dr. Michael J. Roselman, a Boardcertified internist, specializing in cardiovascular disease, who treated appellant for “an acute
myocardial infarction in progress.” He informed Dr. Roselman that his symptoms began on
July 3, 2007 when he was doing some work removing an air-conditioning unit. Apparently the
cooling coils were punctured and refrigerant leaked out on him. A short time later, appellant
began to experience some chest discomfort, which progressively worsened, and he broke out in a
profuse sweat even while resting in his air-conditioned truck. He was taken to the hospital where
he was assessed. Appellant apparently showed no EMG or enzymatic abnormalities.
Subsequent to the July 3, 2007 incident, he continued to experience recurring episodes of
indigestion and belching, and random onset of similar chest discomfort, with radiation to the
shoulder blades. Following another episode of severe discomfort on the evening of July 14,
2007, appellant went to the emergency room. His EKG at that time showed some nonspecific
anterior T-wave changes, and his cardiac enzymes were negative. Appellant was given a “GI
cocktail” on the suspicion he might have reflux. He was ultimately dismissed home in the early
morning hours of July 15, 2007. At 6:30 a.m. on July 16, 2007, appellant developed severe and
unremitting chest discomfort, with some shortness of breath and sweating and sought treatment
in the emergency room. His EKG showed acute anterior injury pattern. On examination,

2

appellant’s lungs were clear to auscultation and percussion bilaterally. Heart rate and rhythm
were regular without gallops, murmurs or rubs.
Appellant provided hospital records relating to his July 16, 2007 episode. In a July 16,
2007 emergency room report, Dr. Kenneth A. Spangler, Board-certified in emergency medicine,
provided a diagnosis on admission of “chest pain/post surgery.” The record also contains
July 16, 2007 diagnostic test results and progress notes through July 18, 2007. A July 18, 2007
operative report reflected that Dr. Roselman performed emergency percutaneous right femoral
arterial puncture and sheath insertion; emergency selective left and right coronary arteriography;
emergency balloon angioplasty and adjunctive dual drug eluting stent implantation of the
proximal and mid left anterior descending regions; retrograde left heart catheterization and
hemodynamics and left ventricular angiography.
In a May 16, 2008 statement, appellant asserted that he had no history of coronary artery
disease prior to the July 3, 2007 incident. He contended that his July 16, 2007 heart attack and
July 15, 2007 chest pains were directly related to his July 3, 2007 injury.
In an April 9, 2008 report, Dr. Roselman indicated that he had reviewed the medical
records he was provided by appellant regarding his July 2007 hospitalizations. He stated:
“Based on my review of these records, it is my medical opinion that the job[-]
related events of July 3, 2007 were the trigger to your unstable angina of that day
and subsequent days, with ultimate progression to the myocardial infarction you
suffered on July 16, 2007. In hindsight, it seems that all of the chest pain
episodes between those dates were cardiac related, that is, due to insufficient
coronary blood flow.”
Appellant submitted a report dated May 13, 2008 from Dr. Dominic M. Meldi, a Boardcertified internist, who stated that he had examined appellant on March 27, 2007, at which time
he had no cardiac symptoms. On July 16, 2007 appellant telephoned him with complaints of
chest pains. Dr. Meldi advised him to proceed to an emergency room, where he was ultimately
diagnosed with acute myocardial infarction.
In a decision dated June 6, 2008, the Office accepted that the July 3, 2007 incident had
occurred as alleged, but denied appellant’s claim on the grounds that the medical evidence did
not demonstrate that the claimed medical condition was related to the established work-related
events.
On January 2, 2009 appellant requested reconsideration.
Appellant submitted a December 23, 2008 report from Dr. Keesag A. Baron, a Boardcertified internist, specializing in cardiovascular disease. Dr. Baron stated that appellant was
under his care and that he had reviewed medical records in relation to the care that was given to
him and the events that had transpired in 2007. He noted that appellant was asymptomatic from a
cardiovascular perspective until July 3, 2007 after a job accident. Subsequent to the accident,

3

appellant complained of chest discomfort, which continued until he presented with a myocardial
infarction and was found to have a coronary occlusion. Dr. Baron stated:
“His symptoms began on the event that occurred on July 3, 2007 in relationship to
his work. It is highly conceivable that on that date with an occupational accident
he had ruptured a coronary plaque which subsequently lead to coronary
insufficiency, recurring chest discomfort, eventual coronary occlusion, and
myocardial infarction on July 16, 2007. This is an event that should be covered
under workman’s compensation.”
By decision dated March 30, 2009, the Office denied modification of its June 6, 2008
decision. It found that there was no probative medical evidence which provided the diagnosis of
a condition causally related to the events of July 3, 2007.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.1 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of 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 or specific condition for which compensation is claimed is
causally related to the employment injury.3 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
1

5 U.S.C. § 8102(a).

2

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

Robert Broome, 55 ECAB 339 (2004).

4

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

4

specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is evidence that includes a physician’s rationalized opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the July 3, 2007 workplace incident occurred as alleged. The
Board finds, however, that appellant has not submitted sufficient medical evidence to establish
that the incident caused or aggravated a diagnosed medical condition.
Contemporaneous medical evidence includes a July 3, 2007 report from Dr. Boutware,
who diagnosed “chest pains, nonspecific” and stated that appellant’s chest pains began while he
was lifting an air conditioner at work. As Dr. Boutware did not provide a specific diagnosis10 or
an opinion as to the cause of appellant’s condition, his report is of limited probative value.11
July 3 and 15, 2007 emergency room records, including laboratory test results, a report of a chest
x-ray, and EKG reports, which do not contain an opinion on causal relationship, also lack
probative value and are insufficient to establish appellant’s claim. July 15 and 16, 2007
emergency room reports reflected appellant’s complaints of chest pain, which he attributed to

5

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

6

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

7

Id.

8

20 C.F.R. § 10.303(a).

9

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

10

A physician’s mere diagnosis of pain, without more by way of an explanation, does not constitute a basis for
payment of compensation. Robert Broome, supra note 3.
11

Medical evidence which does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB
313 (1999).

5

exposure to refrigerant on July 3, 2007. As these reports lack a specific diagnosis or an opinion
as to the cause of appellant’s condition, they, too, are of limited probative value.
In his July 16, 2007 report, Dr. Roselman diagnosed an “acute myocardial infarction in
progress.” He provided an account of appellant’s symptoms, as described by his patient,
beginning with the July 3, 2007 incident. Although Dr. Roselman’s report establishes that
appellant sustained a myocardial infarction, it does not contain an opinion as to the cause of the
heart attack, which occurred nearly two weeks after his Freon exposure. Therefore, it is of
diminished probative value. Similarly, Dr. Roselman’s July 18, 2007 operative report, which
does not contain an opinion on causal relationship, is of minimal probative value.
On April 9, 2008 Dr. Roselman opined that the July 3, 2007 incident triggered appellant’s
“unstable angina of that day and subsequent days, with ultimate progression to the myocardial
infarction [he] suffered on July 16, 2007.” He stated that in hindsight, it seemed that all of the
chest pain episodes between those dates were cardiac related. Dr. Roselman’s report did not
include examination findings. His opinion was based only on a review of the medical records
provided by appellant and was not supported by medical rationale explaining the nature of the
relationship between his diagnosed condition and the July 3, 2007 incident.12 Dr. Roselman did
not explain the process by which appellant’s exposure to Freon on July 3, 2007 would have led
to his myocardial infarction; his vague reference to appellant’s “unstable angina” or his
speculation that all of appellant’s chest pain episodes were cardiac related. For all of these
reasons, his report is of limited probative value and insufficient to establish appellant’s claim.
On December 23, 2008 Dr. Baron stated that it was “highly conceivable” that appellant
had ruptured a coronary plaque on July 3, 2007, which subsequently lead to coronary
insufficiency, recurring chest discomfort, eventual coronary occlusion and myocardial infarction
on July 16, 2007. The only rationale provided was the fact that appellant’s symptoms began on
July 3, 2007 and continued until he presented with a myocardial infarction and was found to
have a coronary occlusion. Dr. Baron’s speculative opinion13 is not based on a complete factual
and medical background, and is not supported by medical rationale explaining the nature of the
relationship between a diagnosed condition and the July 3, 2007 incident. Therefore it is of
diminished probative value.14
The remaining medical evidence of record includes a July 9, 2007 report from
Dr. Mahnken, who performed foot surgery on that date, and a May 13, 2008 report from
Dr. Meldi, who stated that he had examined appellant on March 27, 2007, at which time he had
no cardiac symptoms. As neither report contains an opinion as to whether appellant sustained an
injury as a result of the July 3, 2007 work incident, they are of limited probative value.

12

John W. Montoya, supra note 9.

13

See Kathy Kelley, 55 ECAB 206 (2004) (the Board has held that opinions such as, “the implant may have
ruptured “and “the condition is probably related,” are speculative and diminish the probative value of the medical
opinion).
14

Medical conclusions unsupported by rationale are of little probative value. Willa M. Frazier, 55 ECAB
379 (2004).

6

Appellant expressed his belief that his heart attack and concomitant pain and discomfort
resulted from the accepted employment incident. The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference that there is
a causal relationship between the two.15 Neither the fact that the condition became apparent
during a period of employment, nor the belief that the condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.16 Causal
relationship must be substantiated by reasoned medical opinion evidence, which it is appellant’s
responsibility to submit. Therefore, appellant’s belief that his condition was caused by the workrelated incident is not determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how his claimed condition was caused or aggravated
by his employment, appellant has not met his burden of proof to establish that he sustained an
injury in the performance of duty causally related to the accepted incident.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on July 3, 2007.

15

See Joe T. Williams, 44 ECAB 518, 521 (1993).

16

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8