United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, San Francisco, CA,
Employer
__________________________________________

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Appearances:
Hank Royal, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1464
Issued: January 15, 2014

Case Submitted on the Record

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

JURISDICTION
On June 2, 2013 appellant, through her representative, filed an appeal from the
December 20, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish injuries to her wrist,
fingers and hands causally related to factors of her federal employment.
On appeal, appellant’s counsel contends that activities appellant performed on April 18,
2011 while being assessed for a functional capacity evaluation triggered a flare up of her carpal
tunnel syndrome.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 9, 2012 appellant, then a 50-year-old mail processing clerk/machine
operator, filed an occupational disease claim alleging that, as a result of her federal duties, she
felt sharp pains in both her wrists, tingling and numbness in her fingers and swelling wrists. She
noted that she did manual casing and that these duties involved repetitive movements of
grasping, pulling, pushing, overhead reaching, sorting and filing.2
By letter dated February 29, 2012, OWCP asked appellant to submit further evidence,
including medical evidence, in support of her claim.
In an April 17, 2012 response, appellant explained that, due to repetitive movement of
grasping, gripping, pulling, pushing, lifting and overhead reaching which is involved in her work
duties, she began to feel pain in her hands, wrists, elbows, shoulders and back. She stated that
she has been off work since April 2009 and had surgery on her right elbow in October 2009.
Appellant also submitted a July 15, 2009 electrodiagnostic study by Dr. Michael Butler, a
neurologist,3 who found minimal residual focal right median neuropathy at the carpal tunnel
resulting in mild demyelinative change with no evidence of axon loss or neuropathic change in
distal musculature. Dr. Butler noted that this is a common finding even after successful median
nerve decompression of the carpal tunnel and it does not necessarily represent residual or
recurrent compression. He also noted no evidence of ulnar nerve compression of the right elbow
or elsewhere. Appellant also submitted a June 14, 2011 electrodiagonstic study of Dr. Butler’s,
which showed mild bilateral median nerve compression at the carpal tunnels affecting only the
sensory component and without evidence of axon loss of neuropathic change in distal thenar
musculature. Dr. Butler noted that comparing this study with the July 15, 2009 study, the
findings, while mild, represented a significant bilateral worsening since the previous study. He
also noted no electrodiagnostic evidence of ulnar nerve compression.
In an April 27, 2012 report, Dr. Vatche Cabayan, appellant’s treating Board-certified
orthopedic surgeon, listed his impressions as carpal tunnel syndrome bilaterally worsening in
2011 especially with regard to the right upper extremity vis-à-vis nerve studies obtained in
July 2009; carpometacarpal joint inflammation of the thumb bilaterally; and wrist joint sprain
bilaterally including scapholunate interval of the right and palma ulnocarpal joint on the left. He
opined that causation was due to cumulative trauma on the job until the last day of work on
April 21, 2009. Dr. Cabayan further opined that appellant’s “hand should be covered.”

2

The Board notes that, in a decision dated February 5, 2010, it reviewed prior claims brought by appellant, which
included OWCP File No. xxxxxx692, accepted by OWCP for left shoulder strain and left shoulder impingement
syndrome, OWCP File No. xxxxxx462, which OWCP accepted for bilateral carpal tunnel syndrome and OWCP File
No. xxxxxx632, which OWCP accepted for a low back strain. These claims were consolidated into OWCP File No.
xxxxxx462. The Board noted that OWCP had previously terminated appellant’s compensation benefits regarding
her bilateral carpal tunnel condition on November 2, 2006. The Board found, inter alia, that appellant had not
established continuing disability or residuals due to her bilateral carpal tunnel syndrome. Docket No. 09-486 (issued
February 5, 2010).
3

The Board cannot confirm that Dr. Butler is Board-certified.

2

By decision dated May 15, 2012, OWCP denied appellant’s claim as it determined that
the medical evidence did not demonstrate that the claimed medical condition was related to the
established work-related events.
On June 13, 2012 appellant requested an oral hearing. At the hearing held on
September 27, 2012, counsel noted that she had prior injuries and that physical capacity tests she
had to do in vocational rehabilitation with regard to those claims aggravated her carpal tunnel
syndrome. Appellant also testified with regard to her physical therapy and prior claims.
By letter dated October 27, 2012, appellant’s counsel described difficulties appellant had
during testing and noted that the diagnostic test of June 15, 2011 was worse than the one in 2009.
In an October 5, 2012 report, Dr. Cabayan contended that, subsequent to her surgery on
September 13, 2004, appellant had residual carpal tunnel findings, that these residuals were
noted in the July 15, 2009 study and that the most recent study of June 15, 2011 again showed
mild carpal tunnel syndrome bilaterally with some worsening. He opined that her carpal tunnel
syndrome flared up during vocational rehabilitation and that she never recovered from her work
injury.
By decision dated December 20, 2012, the hearing representative affirmed OWCP’s
decision of May 15, 2012.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 injury5 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.6
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
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.7
4

5 U.S.C. §§ 8101-8193.

5

OWCP 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).
6

See. O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

7

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

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.8
ANALYSIS
As noted above, appellant filed prior claims and these claims were accepted for left
shoulder strain, left shoulder impingement syndrome, bilateral carpal tunnel syndrome and low
back strain. OWCP terminated her compensation benefits with regard to her bilateral carpal
tunnel condition on November 2, 2006 and on February 5, 2010, the Board found that she had
not established continuing disability or residuals related to her bilateral carpal tunnel syndrome.9
Appellant filed a new claim for compensation on February 9, 2012, but all of the arguments by
her representative only address her prior claims. Dr. Cabayan finds that her injuries are related
to her prior injury. The Board has previously affirmed the denial of appellant’s previous claim in
2010. However, the sole issue is whether she established a new injury to her wrists, fingers and
hands or aggravation of a preexisting condition.
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a new injury to her wrists, fingers or hands. Appellant argues that the diagnostic
studies of Dr. Butler show an increase in evidence of her carpal tunnel syndrome between the
July 15, 2009 and June 15, 2011 electrodiagnostic studies. Dr. Butler, however, does not explain
the causation of this apparent increase in symptoms. Dr. Cabayan indicates that it may have
been due to vocational rehabilitation activities with regard to a prior claim; but he never notes a
new employment-related injury. The Board notes that appellant did not return to work after her
surgery in October 2009 and there is no indication that any new employment activities caused
her injuries. Accordingly, as there is no evidence that appellant sustained a new condition or an
aggravation of her old carpal tunnel syndrome causally related to her employment activities, she
has not met her burden of proof.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established injuries to her wrist, fingers and hands
causally related to factors of her employment.

8

See T.W., Docket No. 13-1125 (issued August 27, 2013).

9

See supra note 2. That matter, in the absence of further review by OWCP, is res judicata and is not subject to
further consideration by the Board. See L.W., Docket No. 13-736 (September 9, 2013); Clinton E. Anthony, Jr., 49
ECAB 476 (1998).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 20, 2012 is affirmed.
Issued: January 15, 2014
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 16-0521
Issued: August 26, 2016

Case Submitted on the Record

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

JURISDICTION
On January 27, 2016 appellant, through counsel, filed a timely appeal from a
December 14, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on January 16, 2014.
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.

FACTUAL HISTORY
On January 16, 2014 appellant, then a 52-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that date her left knee gave way as she was pushing a
chair and she fell on her knees. She claimed a left knee injury. Appellant stopped work on
January 16, 2014 and did not return.
OWCP had previously accepted on December 18, 1997, under a separate case file
number (xxxxxx253), bilateral knee contusions and bilateral knee internal derangement. It also
accepted on January 3, 2013, under a case file number (xxxxxx406), left knee/leg sprain and
temporary aggravation of preexisting left lower leg osteoarthritis. The medical documentation in
the case file for the January 3, 2013 work injury shows that appellant had preexisting left knee
tricompartment arthritis, moderate to severe, and patellofemoral chondromalacia, but that these
conditions had not been accepted as work related. The files for these claims have been doubled
with the file for the present claim.
Appellant returned to light-duty work for the employing establishment in April 2013.
OWCP determined that under the claim for the January 3, 2013 work injury, there was a conflict
between the December 11, 2013 opinion of Dr. Brian C. Leung, a Board-certified orthopedic
surgeon who served as an OWCP referral physician, and the March 14, 2014 opinion of
Dr. Richard Blecha, an attending Board-certified orthopedic surgeon, regarding whether she had
residuals of her January 3, 2013 injury. It referred appellant and the case record to Dr. Narinder
Aujla, a Board-certified orthopedic surgeon, for an impartial medical examination and opinion
on the matter. In an April 29, 2014 report, Dr. Aujla determined that appellant ceased to have
residuals of her January 3, 2013 injury.
In a June 13, 2014 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits in connection with the January 3, 2013 work injury claim because the weight of
the medical opinion evidence, which rested with Dr. Aujla’s opinion, established that appellant’s
medical residuals and disability related to the January 3, 2013 injury had ceased.
The record contains statements from coworkers who observed appellant immediately
after the January 16, 2014 work incident or had the incident described to them by appellant.
None of the coworkers actually witnessed the January 16, 2014 incident. A coworker indicated
that the wheeled chair which appellant was pushing was inspected and found to be in proper
functional condition. In a January 16, 2014 statement, another coworker indicated that he
assisted appellant immediately after the injury and that she told him that her knee gave out and
that she lost balance and could not help, but hit the floor. In a January 21, 2014 statement, a
supervisor noted that when she arrived at the scene of the incident on January 16, 2014 appellant
was sitting on the floor. She asked appellant what had happened and appellant responded that
her leg just gave way when she was pushing the chair. In a January 21 2014 statement, a human
resources specialist noted that she had spoken to appellant on January 14, 2014 regarding her
light-duty status and that appellant claimed that she had left knee arthritis resulting from a workrelated injury in 2006, an injury for which the employing establishment could not identify a
claim.

2

In a statement dated February 1, 2014, appellant noted that on January 16, 2014 she was
pushing a wheeled chair and fell. She indicated that she could not say if it was the chair that got
away from her, but all she knew was that her legs gave way and she fell on both legs and arms.
In a February 3, 2014 statement, appellant noted that she did not strike any objects as she fell to
the floor.
In a January 15, 2014 report, Dr. Michael Jablonski, an attending Board-certified
orthopedic surgeon, related appellant’s left leg condition to her January 3, 2013 work injury. He
pointed out that she had a long history related to her left knee with prior injuries in 1987 and
2000. Dr. Jablonski indicated that prior diagnostic testing showed evidence of arthritis and
degenerative changes and that appellant reported complaints of pain with prolonged standing,
walking, and increased activity. He indicated that her need for restrictions was related to her
preexisting arthritis as well as the exacerbation from the January 3, 2013 work injury.
The emergency hospital care records from January 16, 2014, i.e., the date of the falling
incident, indicate that appellant gave a history that she was moving a chair and her left knee gave
out. Appellant reported a history of knee pain “prior years ago.”
On January 20, 2014 Dr. Robert Reppy, an attending chiropractor, provided a history that
appellant fell while pushing a wheeled chair and that the chair got away from her. In a
February 25, 2014 report, Dr. Samy Bishai, an attending Board-certified orthopedic surgeon,
provided a history that she was pushing a chair and fell on her knees. He mentioned the
January 3, 2013 work injury and the December 18, 1997 left knee injury. Dr. Bishai indicated
that the mechanism of the injury on January 16, 2014 was that “[appellant’s] left knee or leg
gave out from underneath her and she fell on her knees and tried to break the fall with her arms.”
He noted that appellant’s January 3, 2013 left knee injury had “caused [appellant] to suffer
symptoms in her left knee joint frequently including giving way, popping, and pain in that joint
so for the knee to give out is quite understandable from an injured knee.”
By decision dated March 10, 2014, OWCP denied appellant’s claim for a January 16,
2014 work injury because the evidence did not establish that she sustained an injury in the
performance of duty. It determined that the January 16, 2014 fall was idiopathic and due to a
nonoccupational pathology.
Appellant requested a telephonic hearing with an OWCP hearing representative in
connection with OWCP’s March 10, 2014 decision. During the hearing held on October 9, 2014
she testified about the injuries she sustained prior to January 16, 2014.
In a decision dated November 24, 2014, the OWCP hearing representative set aside
OWCP’s March 10, 2014 decision and remanded the case for further development. She found
that the evidence established that appellant had preexisting left knee conditions, including
nonwork-related arthritis and degenerative changes, and had seen Dr. Jablonski in follow-up for
her left knee the day prior to the January 16, 2014 work incident. The hearing representative
indicated that, although appellant noted that her left knee gave way because of conditions she
attributed to prior work injuries, the only medical evidence directly addressing the cause of her
fall was Dr. Bishai’s February 25, 2014 report in which the fall was attributed to residuals of the
January 3, 2013 left leg condition. She noted that Dr. Aujla had opined in his April 29, 2014

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report that appellant’s injury-related conditions had resolved, but that he had not indicated when
the accepted temporary aggravation of left lower leg osteoarthritis ceased. The hearing
representative instructed OWCP to obtain a reasoned supplemental opinion from Dr. Aujla as to
when the accepted temporary aggravation of left lower leg osteoarthritis ceased.3
On remand, OWCP obtained a supplemental report from Dr. Aujla. In his January 27,
2015 report, Dr. Aujla indicated that “appellant’s temporary aggravation of her left knee was
stabilized around May 3, 2013 and the ongoing symptoms are related to the preexisting arthritis.”
By decision dated March 10, 2015, OWCP found that appellant had not established that
the injury sustained on January 16, 2014 occurred in the performance of duty because it was due
to a nonoccupational pathology.
Appellant requested a second telephonic hearing with an OWCP hearing representative in
connection with OWCP’s March 10, 2015 decision. At the hearing held on October 21, 2015 she
testified that her left knee gave out while moving a chair on January 16, 2014. Appellant
asserted that she had not returned to work because, due to the January 16, 2014 fall, she also
sustained herniated discs in her neck and back and a rotator cuff injury.
By decision dated December 14, 2015, the OWCP hearing representative affirmed
OWCP’s March 10, 2015 decision denying appellant’s claim for a work-related January 16, 2014
injury. She concluded that appellant’s January 16, 2014 fall occurred due to a nonoccupational
pathology.4
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 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.5 The employee must submit sufficient evidence to
establish that she actually experienced the employment incident at the time, place, and in the

3

The hearing representative explained that if the weight of the evidence established that residuals of appellant’s
January 3, 2013 work injury had resolved prior to January 16, 2014, the left knee pathology existing on January 16,
2014, which caused her knee to give way, would be personal and nonoccupational and the work incident would be
noncompensable. She noted that, if appellant continued to have residuals of the accepted January 3, 2013 injury, the
cause of her fall on January 16, 2014 would be unexplained and the incident would be compensable.
4

The OWCP hearing representative noted that counsel had argued that OWCP should expand the accepted
conditions to include arthritis and chondromalacia. She indicated that appellant has the burden of proof to establish
that these conditions are related to the original work injury and she may seek expansion of her January 3, 2013 claim
or file a new claim for an occupational disease.
5

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

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manner alleged. The employee must also submit sufficient evidence, generally only in the form
of medical evidence, to establish that the employment incident caused a personal injury.6
It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface and there is no intervention or contribution by any hazard or special condition of
employment -- is not within the coverage of FECA. Such an injury does not arise out of a risk
connected with the employment and, therefore, it is not compensable.7 The question of causal
relationship in such cases is a medical one, and must be resolved by medical evidence.8
However, as the Board has made equally clear, the fact that the case of a particular fall cannot be
ascertained, or that the reason it occurred cannot be explained does not establish that it was due
to an idiopathic condition. This follows from the general rule that an injury occurring on the
industrial premises during working hours is compensable unless the injury is established to be
within an exception to the general rule.9 If the record does not establish that the particular fall
was due to an idiopathic condition, it must be considered as merely an unexplained fall, one
which is distinguishable from a fall in which it is definitely established that a physical condition
preexisted the fall and caused the fall.10
ANALYSIS
On January 16, 2014 appellant filed a traumatic injury claim alleging that on that date her
left knee gave way as she was pushing a chair and she fell on her knees. She claimed that she
sustained a left knee injury. OWCP had previously accepted on December 18, 1997 bilateral
knee contusions and bilateral knee internal derangement and on January 3, 2013 left knee/leg
sprain and temporary aggravation of preexisting left lower leg osteoarthritis. The medical
documentation in the case file for the January 3, 2013 injury shows that appellant had preexisting
left knee tricompartment arthritis, moderate to severe, and patellofemoral chondromalacia, but
these conditions were not accepted as work related. The files for these claims have been doubled
with the file for the present claim.
In the present case, the medical evidence from appellant’s treating physician, Dr. Bishai,
indicated that the cause of the January 16, 2014 injury was that appellant’s left knee or leg gave
6

Shirley A. Temple, 48 ECAB 404, 407 (1997); Julie B. Hawkins, 38 ECAB 393, 396 (1987).

7

Robert J. Choate, 39 ECAB 103, 106 (1987).

8

Amrit P. Kaur, 40 ECAB 848, 853 (1989). The term “injury” as defined by FECA, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to, or contact with, certain factors,
elements, or conditions. John D. Williams, 37 ECAB 238, 240 (1985).
9

Emelda C. Arpin, 40 ECAB 787, 789 (1989).

10

See Martha G. List (Joseph G. List), 26 ECAB 200, 204-05 (1974). OWCP’s procedure manual indicates that
if a fall is not shown to be caused by an idiopathic condition, it is simply unexplained and is, therefore, compensable
if it occurred in the performance of duty. An idiopathic fall is one where a personal, nonoccupational pathology
causes an employee to collapse, and an unexplained fall is one where the cause is unknown even to the employee.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.9c (August 1992).

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out under her. Given this evidence, OWCP undertook to determine whether she had residuals of
her January 3, 2013 work injury prior to January 16, 2014. It reasoned that, if the weight of the
evidence established that residuals of appellant’s January 3, 2013 work injury had resolved prior
to January 16, 2014, the left knee pathology existing on January 16, 2014, which caused her knee
to give way, would be personal and nonoccupational and the work incident would be
noncompensable.11 OWCP requested that Dr. Aujla, an impartial medical specialist who found
that her temporary aggravation of preexisting left lower leg osteoarthritis had resolved, indicate
whether she had residuals of the January 3, 2013 injury on January 16, 2014. Dr. Aujla opined
that on January 16, 2014 appellant’s left knee pathology was related to her preexisting arthritis.
His opinion as an impartial medical specialist represents the special weight of the medical
opinion evidence with respect to matter.12
The Board notes that appellant’s statements regarding how the claimed January 16, 2014
injury occurred, i.e., that her knee gave way, do not support a finding that the chair she was
pushing on that date caused or contributed to her fall. The record further reflects that appellant
struck the immediate supporting surface without intervention or contribution by any hazard or
special condition of the employment.13 Dr. Bishai’s opinion that her underlying knee pathology
caused her knee to give way and Dr. Aujla’s opinion that the underlying knee pathology was not
work related, support a finding that the cause of her fall on January 16, 2014 was a
nonoccupational pathology.14 For these reasons, the Board finds that appellant did not meet her
burden of proof to establish an injury in the performance of duty on January 16, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury in
the performance of duty on January 16, 2014.

11

See supra notes 7 through 10.

12

R.S., Docket No. 08-1158 (issued January 29, 2009).

13

See supra note 7.

14

See supra notes 7 through 10.

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ORDER
IT IS HEREBY ORDERED THAT the December 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1515
Issued: June 20, 2019

Case Submitted on the Record

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

On August 2, 2018 appellant filed a timely appeal from a July 23, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned the appeal Docket No. 18-1515.
On December 23, 2007 appellant, then a 52-year-old mail processor, filed an occupational
disease claim (Form CA-2) for a left upper extremity condition that she attributed to factors of her
federal employment. OWCP accepted the claim for bilateral carpal tunnel syndrome, bilateral
benign neoplasm of the connective and soft tissue of the upper limb including the shoulder, and
chronic pain syndrome.2 It paid appellant wage-loss compensation on the supplemental rolls
beginning January 1, 2009 and on the periodic rolls beginning July 5, 2009.

1

The Board notes that appellant submitted additional evidence on appeal. 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

OWCP also authorized bilateral carpal tunnel releases.

By decision dated June 19, 2017, OWCP reduced appellant’s wage-loss compensation
effective June 25, 2017 finding that she had the capacity to earn wages of $360.40 per week as a
receptionist.3 Appellant timely requested a review of the written record by an OWCP hearing
representative.
By decision dated November 17, 2017, OWCP’s hearing representative affirmed the
June 19, 2017 decision. She found that OWCP had properly reduced appellant’s wage-loss
compensation as the positon of receptionist was medically and vocationally suitable. The hearing
representative further found that OWCP had properly determined her loss of wage-earning
capacity based on her date-of-injury pay rate and the entry level salary for the selected positon of
receptionist.
On February 23, 2018 appellant requested reconsideration of the hearing representative’s
November 17, 2017 decision. She submitted a November 1, 2017 decision from the Social
Security Administration (SSA) finding her disabled as of June 3, 2010. In her request for
reconsideration, appellant noted that the included decision was based upon new evidence regarding
her “employability.” Appellant subsequently submitted an SSA disability determination and
transmittal form (SSA-831)
By decision dated July 23, 2018, OWCP reviewed appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128 and 20 C.F.R. § 10.609, and denied modification of the hearing
representative’s November 17, 2017 decision, which affirmed the original June 19, 2017 LWEC
determination.
The Board, having duly considered the matter, concludes that the case is not in posture for
decision.4
Modification of an LWEC determination is unwarranted unless there is a material change
in the nature and extent of the injury-related condition, the employee has been retrained or
otherwise vocationally rehabilitated, or the original determination was erroneous.5 The burden of
proof is on the party seeking modification of the wage-earning capacity determination.6 Unlike
reconsideration pursuant to 5 U.S.C. § 8128(a), there is no time limitation for requesting

3

OWCP initially issued a loss of wage-earning capacity (LWEC) determination on October 15, 2015 finding
appellant capable of earning $448.50 per week as a receptionist. By decision dated March 18, 2016, a representative
of OWCP’s Branch of Hearings and Review found that the selected position of receptionist was medically and
vocationally suitable. However, the hearing representative set aside the October 15, 2015 decision and remanded the
case to OWCP to determine the appropriate weekly wage for a receptionist. OWCP issued a June 9, 2016 LWEC
determination finding that appellant was capable of earning $360.40 per week as a receptionist. That decision was
similarly set aside by an OWCP hearing representative because OWCP relied on an incorrect pay rate in determining
appellant’s loss of wage-earning capacity. Following remand, OWCP issued a proposed LWEC determination on
April 24, 2017, followed by the June 19, 2017 final LWEC determination.
4

N.M., Docket No. 17-0262 (issued July 3, 2017).

5

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part
2 -- Claims, Modification of Loss of Wage Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
6

20 C.F.R. § 10.511.

2

modification of an LWEC determination.7 Any request for “modification” (especially those
without an accompanying claim for compensation) should be reviewed carefully to determine
whether the claimant is seeking a reconsideration of a recently issued LWEC decision, as opposed
to a modification of the LWEC determination.8
It is well established that a claimant may establish that a modification of an LWEC
determination is warranted if there has been a material change in the nature and extent of an injuryrelated condition, or a showing that the original determination was, in fact, erroneous.9 Although
appellant used the term reconsideration in her February 23, 2018 correspondence, she questioned
OWCP’s finding about her employability given SSA’s recent disability determination.
The Board finds that the February 23, 2018 letter from appellant constituted a request for
modification of the June 19, 2017 LWEC determination.10 The Board has held that, when an
LWEC determination has been issued and appellant submits evidence with respect to one of the
criteria for modification, OWCP must evaluate the evidence to determine if modification of the
LWEC determination is warranted.11 The Board finds that the issue is whether a modification of
the June 19, 2017 LWEC determination was warranted and thus the case must be remanded for an
appropriate decision on this issue.12

7

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501.4a (June 2013).
9

20 C.F.R. § 10.511; Y.R., Docket No. 18-1464 (issued February 22, 2019).

10

R.Z., Order Remanding Case, Docket No. 17-1455 (issued February 15, 2019).

11

L.P., Order Remanding Case, Docket No. 18-1429 (issued March 8, 2019); W.R., Docket No. 16-0098 (issued
May 26, 2016).
12

T.H., Order Remanding Case, Docket No. 16-1659 (issued July 14, 2017).

3

IT IS HEREBY ORDERED THAT the July 23, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: June 20, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY AGENCY,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 12-114
Issued: June 13, 2012

Case Submitted on the Record

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

JURISDICTION
On October 26, 2011 appellant filed a timely appeal from the May 6, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying a claimed period of
disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that he is entitled to wage-loss compensation
due to disability for the period November 19, 2006 through November 28, 2009 and continuing.
FACTUAL HISTORY
On September 8, 2006 appellant, then a 56-year-old transportation security officer, filed
an occupational disease claim alleging that the frequent lifting of heavy bags caused and/or
contributed to the “pain in [his] crotch, anus, and testicles.” He first noticed his condition in
relation to his employment duties on October 7, 2005. Appellant was placed on light duty on
1

5 U.S.C. § 8101 et seq.

July 29, 2006 and he accepted a modified position on September 7, 2006. He returned to light
duty on September 24 through 26, 2006. Appellant stopped work on September 27, 2006 due to
an embarrassing incident that happened on the job on September 26, 2006. On August 3, 2007
the employing establishment terminated his employment as he was absent without leave
(AWOL).2 On February 1, 2008 OWCP accepted the claim for right ilioinguinal neuralgia.
On August 15, 2006 appellant was diagnosed with prostatitis by Dr. Henry Osei, a Boardcertified internist. On September 5, 2006 Dr. Mark E. Leo, a Board-certified urologist,
diagnosed epididymitis and permanently restricted appellant from lifting over 20 pounds. In an
attending physician’s report of the same date, Dr. Leo stated that appellant was able to resume
regular work on October 12, 2006 as long as there was no lifting over 20 pounds. In a
November 30, 2006 report, Dr. Leo indicated that appellant’s epididymitis had improved with
prescribed medicine and the rest from his work activities. He opined that appellant’s initial
episode of epididymitis was related to his work and the extended period away from work did a
lot of good. Dr. Leo further opined that appellant could return to work “whenever he feels he
wants to.”
On a Form CA-7 claim for compensation dated November 28, 2009 appellant requested
leave without pay (LWOP) for the period November 19, 2006 through November 28, 2009. On
the form he indicated that the employing establishment withdrew its offer of limited duty on
November 19, 2006 and reassigned him to full duty in Node 8. Appellant claimed no offer of
suitable work has been offered to date. OWCP received the claim on August 6, 2010.
In an August 20, 2010 letter, OWCP advised appellant that, if he was claiming temporary
total disability from November 19, 2006 to November 28, 2009, he must provide medical
documentation to support the period claimed. It noted that there was no medical evidence to
support the time period claimed. OWCP stated that the medical documentation must consist of
appellant’s treating physician’s objective findings or medical rationale to support his inability to
work due to his accepted work condition during the time period claimed. It noted that appellant
had not worked for the employer since August 3, 2007 and that the modified-duty position,
which was within his medical restrictions, was available when he stopped working.
In a September 10, 2010 letter, appellant indicated that he was requesting compensation
from November 19, 2006 through November 28, 2009. He stated that he stopped work on
September 26, 2006 because his employer allowed nonsupervisory employees access to his
sensitive medical information. Appellant stated that there was no medical reason why he could
not work within his doctor’s permanent restrictions (notably repeated lifting under 20 pounds).
He stated it was the employer’s responsibility to resolve the humiliation he felt when his medical
privacy was breached and stated that he remains open to a job placement. Appellant stated the
full-duty reassignment to Node 8 changed his hours and days off. He indicated that, to date, the
employing establishment had not offered any suitable work.
OWCP received information concerning an alleged breach of appellant’s medical
privacy; a November 28, 2009 direct deposit sign-up form; a November 27, 2007 letter from
appellant disagreeing with his termination along with letters asserting there was no medical
reason he could not work; statements of earnings and leave for pay periods September 3 to 16,
2

The employing establishment placed appellant on AWOL as he failed to provide any medical documentation for
his absence.

2

September 17 to 30 and October 1 to 14, 2006; a shift anomalies sheet dated March 14, 2006 to
January 9, 2007; and time and attendance reports dated September 3 to 16, November 12 to 25
and November 26 to December 9, 2006.
Dr. Leo’s medical reports, previously of record were provided. In an April 27, 2007
disability form, Dr. Leo indicated that appellant had epididymitis and, beginning August 9, 2006,
he was restricted from returning to full duty as a bag inspector and restricted from lifting over 20
pounds.
In a December 21, 2007 report, Dr. Sheldon J. Freedman, a Board-certified urologist,
provided an impression of right ilioinguinal neuralgia with a prior history of multiple prostrate
surgeries. He concurred with Dr. Leo’s recommendation that appellant not do heavy lifting. In a
January 24, 2008 report, Dr. Freedman stated that it was possible that appellant’s symptoms
would resolve if he were to seek another occupation that did not involve lifting.
In a November 13, 2006 telephone report, the employing establishment indicated that
appellant had not returned to work and that light duty remained available.
By decision dated May 6, 2011, OWCP denied appellant’s claim for wage-loss
compensation for the period November 19, 2006 through November 28, 2009 and continuing. It
found that there was no medical evidence before or after November 19, 2006 which indicated
that appellant would be unable to work November 19, 2006 through November 28, 2009.
OWCP further found that the employing establishment terminated appellant on August 3, 2007
for reasons not related to his accepted conditions or limited-duty job. It advised that the privacy
issue and case surrounding the embarrassing incident that occurred on September 25, 2006 which
resulted in appellant’s work stoppage, was not before OWCP.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.3 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.4 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.5
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.6 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.7 An employee who has a physical impairment causally related to his federal
3

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
4

See Amelia S. Jefferson, supra note 3; see also David H. Goss, 32 ECAB 24 (1980).

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
7

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

3

employment, but who nonetheless has the capacity to earn the wages he was receiving at the time
of injury, has no disability and is not entitled to compensation for loss of wage-earning capacity.8
When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).9 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
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, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
ANALYSIS
OWCP accepted appellant’s claim for right ilioinguinal neuralgia and noted the date of
injury as October 7, 2005. Appellant accepted a modified position on September 7, 2006. He
stopped work on September 27, 2006 due to an alleged incident that happened on
September 26, 2006. On August 3, 2007 the employing establishment terminated appellant’s
employment as he was AWOL. Appellant filed a claim for wage-loss compensation for the
period November 19, 2006 through November 28, 2009. It is his burden of proof to establish the
claimed period of employment-related disability. On August 20, 2010 OWCP advised appellant
of the evidence needed to establish his claim. However, appellant did not submit sufficient
reasoned medical evidence to establish that his work stoppage for the period November 19, 2006
through November 28, 2009 was causally related to his accepted condition. He admitted that
there was no medical reason he could not work within his physician’s permanent restrictions of
no lifting over 20 pounds. The Board notes that, while appellant stated that he stopped work
because of a breach of his medical privacy, it does not have jurisdiction over internal employing
establishment personnel matters such as whether the employer should have offered appellant
alternative employment after the alleged breach of his medical privacy.
On September 5, 2006 Dr. Leo permanently restricted appellant from lifting over 20
pounds. Appellant accepted a modified position on September 7, 2006 but, as noted, he stopped
work September 27, 2006 for reasons not related to the accepted injury. In a November 30, 2006
report, Dr. Leo indicated that appellant’s work-related epididymitis had improved and he could
8

Merle J. Marceau, 53 ECAB 197 (2001).

9

A.D., 58 ECAB 149 (2006); Sedi L. Graham, 57 ECAB 494 (2006).

10

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

4

return to work whenever he wanted. The employing establishment indicated on November 13,
2006 that light duty remained available. Appellant was terminated from employment on
August 3, 2007 for being AWOL.
For the period November 19, 2006 through August 2, 2007, there is no medical evidence
indicating that appellant was not able to work due to his accepted condition. Moreover
appellant’s employer provided work within his medical restrictions and indicated that light duty
remained available. While appellant argued that the employing establishment withdrew its offer
of limited duty on November 19, 2006, there is no evidence it was withdrawn due to his
employment-related injury or that appellant’s medical restrictions were disregarded. He only
indicated that the employing establishment changed his days and hours. There is no evidence
that the reassignment disregarded appellant’s medical restrictions and the employing
establishment indicated that light duty remained available to him.12 Without reasoned medical
evidence supporting that he had employment-related disability during the period November 19,
2006 through August 2, 2007, appellant has not met his burden of proof to establish his claim for
wage-loss compensation for the period in question.
Appellant’s employment was terminated on August 3, 2007 for reasons not related to his
accepted employment condition. For the period August 3, 2007 until November 28, 2009 and
continuing, appellant did not work for the employing establishment. The Board has held that,
when a claimant stops work for reasons unrelated to his accepted employment injury, he has no
disability within the meaning of FECA.13 Accordingly, there is no basis for entitlement to wageloss compensation for the period August 3, 2007 through November 28, 2009.
On appeal appellant contends that he was reassigned full duty on November 19, 2006 in
violation of his medical restrictions. However, as previously noted, there is no evidence of
record that his limited-duty assigned was withdrawn due to his employment-related injury or that
appellant’s medical restrictions were disregarded. Additionally, the employing establishment
indicated that light duty remained available to appellant.
An award of compensation may not be based on surmise, conjecture or speculation.14
Neither the fact that appellant’s condition became apparent during a period of employment nor
his belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.15 Causal relationship must be established by
rationalized medical opinion evidence.16 As appellant failed to submit such evidence, appellant
has not met his burden of proof to establish an employment-related disability for the period
November 19, 2006 to November 28, 2009.

12

See Terry R. Hedman, 38 ECAB 222 (1986).

13

E.S., Docket No. 11-657 (issued February 9, 2012); see John W. Normand, 39 ECAB 1378 (1988).

14

D.I., 59 ECAB 158 (2007); D.E., 58 ECAB 448 (2007); Paul E. Thams, 56 ECAB 503 (2005).

15

G.T., 59 ECAB 447 (2008); V.W., 58 ECAB 425 (2007); Ronald K. Jablanski, 56 ECAB 616 (2005).

16

Roy L. Humphrey, 57 ECAB 238 (2005); Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established entitlement to wage-loss compensation
for the period November 19, 2006 through November 28, 2009 and continuing causally related to
his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated May 6, 2011 is affirmed.
Issued: June 13, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Paterson, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1856
Issued: February 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 20, 2016 appellant, through counsel, filed a timely appeal from a June 6,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

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 appellant has established a recurrence of disability from
February 27, 2010 to August 31, 2012 causally related to her January 3, 2005 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The facts relevant to this
appeal will be set forth.
On January 21, 2005 appellant, then a 47-year-old letter carrier, filed a recurrence of
disability claim (Form CA-2a) commencing January 3, 2005, causally related to a May 18, 2001
work injury. OWCP determined that she had alleged a new injury based on her description of
the work factors that caused her condition. It assigned the claim File No. xxxxxx125 and
accepted that appellant sustained a lumbar strain on January 3, 2005. OWCP previously
accepted that she had a lumbar strain due to a May 18, 2001 traumatic injury under File No.
xxxxxx350, which it combined under the current File No. xxxxxx125.
The employing establishment, on February 27, 2006, offered appellant a position as a
modified city carrier.
By decision dated October 13, 2006, OWCP reduced appellant’s compensation to zero
based on its finding that her actual earnings as a modified city carrier, effective March 11, 2006,
fairly and reasonably represented her wage-earning capacity. The restrictions were working an
eight-hour day with restrictions of no lifting over 20 pounds, no bending, squatting, kneeling, or
climbing. The duties included delivering auto parts, filing, and answering the telephone for eight
hours a day.
The employing establishment, on January 5, 2010, offered appellant an interim modified
position pending reassessment under the National Reassessment Process (NRP). The position
required lifting and carrying up to 10 pounds, standing six hours, climbing four hours, kneeling
two hours, twisting one hour, sitting two hours, walking four hours, bending and stooping two
hours, and pushing and pulling one hour.
In a duty status report dated January 21, 2010, Dr. John Ambrose, an attending Boardcertified orthopedic surgeon, diagnosed lumbar radiculitis. He provided work restrictions of
lifting and carrying up to 10 pounds for four hours per day, sitting for two hours per day,
reaching above the shoulder for two hours per day, driving a vehicle for three hours per day,
kneeling, bending, twisting, pulling, and pushing for one hour per day, climbing for two hours
per day intermittently, standing for six hours per day, and walking for four hours per day.
On February 4, 2010 the employing establishment offered appellant a full-time position
as a modified city carrier. The position required standing up to six hours, operating a motor
3

Docket No. 13-0846 (issued July 3, 2013).

2

vehicle up to three hours, picking up mail and reaching above or at shoulder level for two hours
per day, and walking up to four hours per day, and lifting and carrying 10 pounds for no more
than four hours a day. The duties included casing mail up to two hours, delivering mail up to
four hours, and collections up to four hours. OWCP advised that the assignment would remain
within the limitations set forth by appellant’s attending physician on January 21, 2010.
Appellant refused the position, noting that she had attempted delivering her route, but had to
return with the mail due to right shoulder and back pain.
In an April 18, 2010 statement, appellant asserted that the employing establishment
removed her limited-duty position and returned her to work as a letter carrier. She tried to
deliver her route on January 8, 2010, but was unable to complete the route due to back pain.
Dr. Ambrose, in a July 15, 2010 report, discussed appellant’s May 2001 work injury and
diagnosed a disc herniation at L3-4 on the left side, degenerative disc disease, high blood
pressure, diabetes, and obesity. He found that she was disabled from her regular job as a letter
carrier as she could not do “prolonged standing, walking, bending, and reaching which may
involve lifting heavy containers of mail….” Dr. Ambrose related, “While it is conceivable that
[appellant] could engage in the light duties with those restrictions that I have already
enumerated, she is not fit for the full duties of a letter carrier as I have enumerated them above.”
On July 19, 2010 Dr. Ambrose discussed his initial treatment of appellant for a back
injury on May 18, 2001. He related:
“Please be advised that I have recommended that [appellant] be restricted to light
duties which involve working at waist level, avoidance of bending and lifting,
avoidance of carrying objects greater than 20 pounds and avoidance of climbing
as far back as 2005. When [she] returned to full duties as a letter carrier in
January of this year, she encountered tasks and chores beyond the limits of what
[it was an interim position] her spinal disability could tolerate….”
Dr. Ambrose opined that appellant had “residuals of a herniated disc and ongoing degeneration
of other discs in her lumbar spine which render her incapable [of] engaging in the full duties of a
letter carrier.” He advised that she had sustained a recurrence of her back condition.
In a January 27, 2011 report, Dr. Ambrose diagnosed lumbar spondylosis and lumbar
radiculitis. He noted that appellant’s arthritis would “persist indefinitely.” In a January 21, 2011
duty status report, Dr. Ambrose diagnosed lumbar radiculitis and provided work restrictions. He
found that she was disabled from work as a letter carrier.
Appellant, on March 10, 2011, filed a recurrence of disability claim (Form CA-2a)
alleging that she sustained disability beginning January 8, 2010, causally related to her
January 3, 2005 work injury. She related that the employing establishment took away her
limited-duty employment under NRP and returned her to work as a letter carrier for four hours
per day. Appellant asserted that she was unable to perform her letter carrier duties. The
employing establishment indicated on the form that it provided a modified job offer to her within
her restrictions on February 4, 2010, but that she refused the position.

3

Dr. Ambrose, in a progress report dated April 11, 2011, diagnosed a herniated disc at L34 with lumbar radiculitis and spondylosis. He attributed the condition to lifting incidents in
May 2001 and January 2005.
By letter dated April 27, 2011, appellant’s supervisor related that the positions that had
been offered appellant on January 5 and February 4, 2010 were well within her physical
restrictions. Appellant began working in the new position on January 8, 2010, but stopped in the
afternoon, citing back pain. She refused the second offer made on February 4, 2010.
By decision dated June 13, 2011, OWCP denied modification of its October 13, 2006
wage-earning capacity determination. On June 17, 2011 appellant, through counsel, requested a
telephone hearing before an OWCP hearing representative. During the telephone hearing, held
on October 12, 2011, counsel argued that the original wage-earning capacity determination was
in error.
By decision dated December 30, 2011, OWCP’s hearing representative affirmed the
June 13, 2011 decision. She found that there was no evidence that the original determination
was in error or that appellant’s condition worsened such that she was unable to perform the
modified position.
Appellant retired
February 28, 2012.

from the

employing

establishment

on

disability,

effective

On June 14, 2012 appellant, through counsel, requested reconsideration. In a decision
dated September 6, 2012, OWCP denied modification of its December 30, 2011 decision. On
September 13, 2012 counsel again requested reconsideration. In a nonmerit decision dated
December 11, 2012, OWCP denied appellant’s request for reconsideration, finding that the
evidence of record was insufficient to warrant reopening the case for further merit review under
section 8128.4
Appellant appealed to the Board. In a July 3, 2013 decision, the Board set aside the
September 6 and December 11, 2012 decisions.5 It remanded the case for OWCP to follow the
guidance in FECA Bulletin No. 09-05 regarding a claim for total disability following a wageearning capacity determination when a light-duty job is withdrawn under NRP.6
On October 31, 2013 OWCP found that it issued the October 13, 2006 wage-earning
capacity determination in error as the position offered had not been established to be a bona fide
position as the employing establishment had not responded to its request. It advised appellant
that she could submit claims for compensation (Form CA-7) for wage-loss after her notice of
recurrence of disability.

4

The record contains progress reports from Dr. Ambrose dated December 31, 2012 and January 21, 2013
discussing his treatment of appellant for back pain.
5

See supra note 2.

6

FECA Bulletin No. 09-05 (issued August 18, 2009).

4

On June 17, 2014 appellant filed a claim for compensation (Form CA-7) for intermittent
wage-loss compensation from February 27, 2010 to August 31, 2012.
By letter dated July 11, 2014, OWCP requested that appellant explain why she refused
the modified position offered by the employing establishment on February 4, 2010.7
Appellant, in a response dated August 1, 2014, maintained that she refused the offered
position as she could not perform the duties because of her back injury. In a statement dated
August 2, 2014, counsel noted that OWCP found the wage-earning capacity determination in
error. He asserted that the employing establishment took away appellant’s limited-duty position
and that she was not able to perform the duties set forth in the February 4, 2010 job offer as it
required delivering mail.
OWCP, in a letter dated June 9, 2015, informed appellant that the medical evidence of
record was insufficient to show that she was disabled from February 27, 2010 through
August 31, 2012. It afforded her 30 days to submit a rationalized medical opinion supporting
disability for the period claimed as a result of her work injury.
On June 22, 2015 counsel, resubmitted July 15, 2010 and January 27, 2011 reports from
Dr. Ambrose, which he asserted that they established that appellant was permanently disabled
from working as a letter carrier.
By decision dated July 10, 2015, OWCP denied appellant’s claim for wage-loss
compensation from February 27, 2010 through August 31, 2012. It found that she had not
submitted medical evidence sufficient to show that she could not perform the duties of the
February 4, 2010 modified position.
On July 17, 2015 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. At the telephone hearing, held on July 17, 2015, she discussed
her May 2001 work injury. Appellant worked limited-duty from 2006 until 2010 when the
employing establishment withdrew her employment.
By decision dated June 6, 2016, OWCP’s hearing representative affirmed the July 10,
2015 decision. She noted that Dr. Ambrose did not find that appellant was unable to perform her
limited-duty assignment, but instead determined that she was unable to perform her usual duties
as a letter carrier.
On appeal counsel contends that the employing establishment withdrew her limited-duty
employment and, thus, she has established a recurrence of disability. He maintains that
Dr. Ambrose found that appellant could not work as a letter carrier.
LEGAL PRECEDENT
Where an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
7

OWCP also requested clarification regarding why she used annual leave from July 11 to 23, 2010.

5

she can perform the light-duty position, he or she has the burden to establish by the weight of the
reliable, probative and substantial evidence, a recurrence of total disability and to show that she
cannot perform such light duty. As part of this burden, the employee must show a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty job requirements.8
OWCP regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.9 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
her established physical limitations.10
ANALYSIS
OWCP accepted that appellant sustained lumbar strain as a result of a January 3, 2005
employment injury. It previously accepted that she sustained lumbar strain on May 18, 2001
under File No xxxxxx350.
On February 27, 2006 appellant accepted a position as a modified city carrier lifting no
more than 20 pounds. OWCP, in a decision dated October 13, 2006, reduced her compensation
to zero after finding that her actual earnings as a modified city carrier, effective March 11, 2006,
fairly and reasonably represented her wage-earning capacity. It subsequently modified the
October 13, 2006 wage-earning capacity determination, after finding that the offered position
was not bona fide.
Appellant worked as a modified city carrier until January 5, 2010, when the employing
establishment withdrew her position as part of NRP. On February 4, 2010 the employing
establishment offered her another position as a modified city carrier. Appellant did not accept
the offered position. She stopped work and filed a claim for compensation from February 27,
2010 to August 31, 2012. Appellant advised that she was unable to perform the duties of the
position due to back pain. She alleged a recurrence of disability as the employing establishment
withdrew the limited-duty position she performed from 2006 to 2010.
Although the employing establishment changed appellant’s job description, the new
position offered in February 2010 did not exceed the limitations set forth by her attending
physician. Dr. Ambrose, on January 21, 2010, diagnosed lumbar radiculitis and found that she
could lift and carry up to 10 pounds for four hours per day, sit for two hours per day, reach above
8

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
9

20 C.F.R. § 10.5(x).

10

Id.

6

the shoulder for two hours per day, drive a vehicle for three hours per day, kneel, bend, twist,
pull and push for one hour per day, climb for two hours per day intermittently, stand for six
hours per day, and walk for four hours per day. On February 4, 2010 the employing
establishment offered appellant a position as a modified city carrier casing mail, delivering mail,
and performing collections. The duties consisted of standing for six hours per day, operating a
motor vehicle for three hours per day, picking up mail and reaching above the shoulder for two
hours per day, and walking for four hours per day. The employing establishment advised that the
assignment would stay within the physical restrictions set forth by her attending physician on
January 21, 2010. There is no evidence demonstrating that the employing establishment failed to
provide appellant work within her restrictions and thus she has not demonstrated a recurrence of
disability based on the withdrawal of limited-duty employment.11
Appellant further has not shown that she was disabled due to a worsening of her accepted
lumbar sprain. In a report dated July 15, 2010, Dr. Ambrose diagnosed an L3-4 left disc
herniation and found that she was unable to work in her position as a letter carrier, noting that
she also had degenerative disc disease, high blood pressure, diabetes, and obesity. He did not
address the issue of whether appellant could perform her modified position. Additionally,
Dr. Ambrose found that she was disabled by conditions other than the accepted lumbar strain.
Where appellant claims that a condition not accepted or approved by OWCP was due to her
employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.12
Dr. Ambrose did not provide a reasoned opinion explaining how the disc herniation and
degenerative disc disease were related to the work injury and thus his opinion is of little
probative value.13
On July 19, 2010 Dr. Ambrose discussed appellant’s history of a May 18, 2001 back
injury. He noted that she returned to her usual work duties in January 2010, but was unable to
perform the employment as a result of her back condition. Dr. Ambrose attributed appellant’s
disability to the 2001 injury. He, however, relied upon an inaccurate history of injury, that of her
resuming her usual employment as a letter carrier in 2010 rather than returning to a modified
position. It is well established that medical reports must be based on a complete and accurate
factual and medical background and that medical opinions based on an incomplete or inaccurate
medical history are of diminished probative value.14
In a January 27, 2011 progress report, Dr. Ambrose diagnosed lumbar spondylosis and
radiculitis and opined that appellant’s arthritis would continue indefinitely. He indicated in a
duty status report of January 2011 that she could not perform her usual work as a letter carrier.
Dr. Ambrose provided work restrictions. On April 11, 2011 he diagnosed a herniated disc at L34, lumbar radiculitis, and lumbar spondylosis due to appellant’s May 2001 and January 2005
injuries. As noted, OWCP did not accept a herniated disc, radiculitis, or spondylosis as work
11

See H.H., Docket No. 15-0304 (issued July 28, 2015).

12

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

13

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

14

See W.S., Docket No. 15-0602 (issued August 11, 2016); Joseph M. Popp, 48 ECAB 624 (1997).

7

related. Dr. Ambrose did not provide any rationale for his opinion that the work injuries caused
the diagnosed conditions. Medical conclusions unsupported by rationale are of little probative
value.15
On appeal counsel contends that the employing establishment withdrew appellant’s
limited-duty employment. As discussed, however, while it changed her job description it
provided her work within the restrictions set forth by her attending physician, and thus she has
not shown a recurrence of disability due to the removal of her limited-duty position.16
Counsel also maintains that Dr. Ambrose found that appellant could not work as a letter
carrier. The relevant issue, however, is whether appellant could perform the duties of her
modified employment, not her usual duties as a regular letter carrier.
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 established a recurrence of disability from
February 27, 2010 to August 31, 2012 causally related to her January 3, 2005 employment
injury.

15

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

16

See supra note 11.

8

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 10, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mountain View, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kevin Card, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0660
Issued: February 20, 2018

Case Submitted on the Record

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

JURISDICTION
On February 19, 2016 appellant, through her representative, filed a timely appeal from a
January 29, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Appellant, through her representative, timely requested oral argument. After exercising its discretion, the
Board, by order issued June 9, 2016, denied the representative’s request for oral argument, finding that the issues
involved could be adequately addressed in a decision based on a review of the case record. Order Denying Request
for Oral Argument, Docket No. 16-0660 (issued June 9, 2016).

ISSUE
The issue is whether appellant has established disability from work commencing
November 26, 2013 due to an accepted temporary aggravation of a displaced cervical
intervertebral disc and temporary aggravation of brachial radiculitis.
FACTUAL HISTORY
OWCP accepted that on or before June 22, 2013 appellant, then a 55-year-old mail
carrier, sustained a temporary aggravation of displacement of cervical intervertebral disc without
myelopathy, and a temporary aggravation of brachial neuritis or radiculitis, due to repetitive
lifting, reaching, twisting, pulling, pushing, and carrying in the performance of duty.
In a July 24, 2013 report, Dr. Mark J. Sontag, an attending Board-certified physiatrist,
noted treating appellant beginning on October 7, 2003 for neck and shoulder pain that began on
May 14, 2003 when she opened and closed a postal van door. Following April 12, 2010 C5-6
and C6-7 fusions, appellant was able to return to modified work.4 On June 24, 2013 she
developed increasing neck and interscapular pain, with numbness into the left upper extremity.
On examination Dr. Sontag noted limited cervical motion, 4/5 weakness in the C5-6 enervation
affecting the bilateral deltoid and supraspinatus muscles, and weakness in the C7 innervation
affecting the triceps and extensor digitorum bilaterally. He explained that a March 14, 2012
postoperative MRI scan showed the anterior fusion from C5 to C7, with hardware at C4-5.
Dr. Sontag diagnosed a displaced cervical disc and cervical radiculopathy. He opined that
appellant’s modified duties following her April 12, 2010 fusion, which required lifting and
carrying 20 pounds intermittently, sitting for four hours a day, twisting two to four hours a day,
and “driving a vehicle throughout the day, reaggravated the segments at C5-6 and C6-7 resulting
in reoccurrence of her left C6 and C7 radiculopathy. The work activities also aggravated a one
mm C3-4 disc bulge with facet arthropathy contributing to greater occipital neuralgia.”
Dr. Sontag found that appellant’s condition had materially changed, based on a 60 percent
restriction in cervical motion, a return of neurologic deficits in the left C6 and C7 innervations,
and greatly increased pain symptoms. He held appellant off work beginning on June 24, 2013
and prescribed physical therapy to restore function.
Appellant worked three hours a day and received wage-loss compensation for the
remaining five hours a day from June 24 to November 25, 2013, based on Dr. Sontag’s opinion.
Dr. Sontag provided reports from September 5 to October 29, 2013 in which he found that
cervical spine maneuvers on examination reproduced pain and sensory symptoms indicative of
bilateral C5-7 radiculitis with possible migration of the fusion fixation plate. He observed
objective 4/5 weakness in the left deltoid, supraspinatus, bilateral extensor digitorum, extensor
indicis, and abductor pollicis, 4+/5 weakness in the left triceps
In a November 18, 2013 report, Dr. Sontag related appellant’s complaints of “persistent
pain in her left throat while swallowing,” and esophageal pain when learning forward. On
4

A February 14, 2012 magnetic resonance imaging (MRI) scan showed status post C5-6 and C6-7 anterior
cervical discectomy and fusion, a one millimeter (mm) C3-4 disc bulge with left greater than right facet arthropathy.
A March 21, 2013 MRI scan of the lumbar spine noted disc bulges at L3-4, L4-5, and L5-S1.

2

examination he found no tenderness over the throat and no obvious mass. Dr. Sontag diagnosed
status post April 2010 C5-6 and C6-7 anterior fusion, C4-5 and C7-T1 facet syndrome, chronic
bilateral C7 radiculopathy, and “[r]ule out anterior dislodging of her hardware.” He held
appellant off work.
Dr. Sontag held appellant off work through November 25, 2013 and continuing. A
November 18, 2013 computerized tomography (CT) scan of appellant’s cervical spine showed
that the anterior C5-6 and C6-7 plate were in place, “with no malalignment or screw movement.
There [was] solid bridging of C4 to C7.”
On November 27, 2013 appellant filed a claim for compensation (Form CA-7) for total
disability during the period November 26 to December 19, 2013.
In a December 17, 2013 letter, OWCP advised appellant of the additional evidence
needed to establish her claim for temporary total disability from November 26 to December 19,
2013 and continuing, including a narrative report from her attending physician explaining how
and why the accepted cervical injury would disable her for work for the claimed period. It noted
that the claim appeared predicated on a nonindustrial throat condition.
In response, appellant provided reports from December 19, 2013 to February 18, 2014
from Dr. Sontag, noting that an evaluation by a speech language pathologist found normal
swallowing and motor function, “yet [appellant’s] sensory nerves may be affected, causing her to
have swallowing difficulties.” Dr. Sontag diagnosed “[s]wallowing problems related to sensory
dysfunction” caused by the C5-6 and C6-7 anterior fusion. He prescribed medication and
continued to hold appellant off work.5
On January 16, 2014 appellant filed a claim for compensation (Form CA-7) for total
disability from December 20, 2013 to February 18, 2014. She then continued to file claims for
total disability compensation.
By decision dated March 18, 2014, OWCP denied appellant’s claim for total disability
compensation for the period November 26 to December 19, 2013 and continuing, finding that the
medical evidence was insufficient to establish causal relationship between her condition and the
accepted cervical condition and surgery.
Appellant requested a hearing, which was held before an OWCP hearing representative
on August 26, 2016. During the hearing, she described her modified duties following the
April 2010 cervical fusion, including casing and pulling down mail two hours a day, overhead
lifting and reaching, carrying up to 15 pounds intermittently, driving a delivery vehicle, and
working with her neck flexed. Appellant asserted that these duties aggravated cervical
radiculopathy and caused problems with swallowing. She submitted additional evidence.
In a March 18, 2014 letter, Dr. Robert K. Wu, an attending Board-certified
otolaryngologist, reviewed a history of injury and surgery, and related appellant’s swallowing
difficulties. On laryngoscopic examination he found no obvious metal plate “dehiscent into the
5

Appellant participated in physical therapy from December 2013 to March 2014.

3

throat,” and “slight arytenoid edema.” Dr. Wu reviewed CT scans that showed “no obvious
extension of the plate into the pharynx.” He diagnosed “chronic neck problems that [were] work
related.” Dr. Wu noted that he was “not sure why [appellant] is having such problems, but her
pain seems to worsen with continued work.” He held appellant off work for one month.
On March 25, 2014 Dr. Sontag reviewed Dr. Wu’s report and continued to hold appellant
off work. He opined on May 6, 2014 that her swallowing difficulties were caused by the cervical
fixation plate. Dr. Sontag asserted that appellant’s April 2010 cervical fusion contributed to her
swallowing problems and cervical radiculopathy, and was aggravated by her modified-duty work
activities beginning on October 18, 2013. He provided periodic progress reports through
July 2014, finding appellant totally disabled from work.
In an August 4, 2014 report, Dr. Sontag opined that appellant was “permanently disabled
from her work as a mail carrier.” He explained that her limited-duty activities following the
April 12, 2010 fusion, including “lifting overhead, reaching, casing, pull[ing] down mail for
[two] hours, carrying items weighing 15 pounds intermittently, sitting for one hour a day,
bending, twisting [three] hours a day, driving a vehicle, repetitive carrying items, and neck
flexion, resulted in an aggravation of her cervical spine condition resulting in increased cervical
radiculopathy (arm symptoms), swallowing problems, and increased neck pain (facet
symptoms).” Dr. Sontag explained that the activities affected the anterior fixation plate, causing
esophageal irritation, and difficulty swallowing. He submitted periodic reports through
November 10, 2014 reiterating this opinion.
In a September 5, 2014 letter, appellant’s representative advised OWCP’s hearing
representative that, under File No. xxxxxx047, OWCP had denied appellant’s claim for a
recurrence of disability commencing June 24, 2013, based on the same medical evidence
submitted under the present claim.6
The employing establishment provided a September 26, 2014 letter, acknowledging that
appellant was required to carry up to 15 pounds intermittently and to case mail. However,
appellant tended to case mail at a slower pace as the repetitive lifting was difficult for her and
she could not carry multiple trays at one time.
By decision dated November 14, 2014, OWCP’s hearing representative affirmed the
March 18, 2014 decision, finding that the medical evidence was insufficiently rationalized to
meet appellant’s burden of proof in establishing that the accepted cervical condition and surgery
disabled her for work for the claimed period.7
On November 2, 2015 appellant, through her representative, requested reconsideration.
The representative asserted that Dr. Sontag’s reports were sufficient to meet her burden of proof
in establishing causal relationship.

6

OWCP File No. xxxxxx047 is not before the Board on the present appeal. In September 16 and 28, 2014 letters,
appellant made minor corrections to the hearing transcript.
7

Appellant retired from the employing establishment, effective December 12, 2014.

4

In a December 8, 2014 report, Dr. Sontag opined that “100 percent of [appellant]’s
complaints involving her neck, shoulder, interscapular border, arms, and head is secondary to her
work activities. There is no basis of apportionment of any of her symptoms to any other cause
other than her work activities.” He continued to find appellant totally disabled from work.
On March 3, 2015 Dr. Sontag opined that appellant’s modified duties beginning
September 5, 2013, working three hours a day “doing repetitive overhead reaching above
shoulder level for [two] hours, repetitive neck flexion, and intermittent lifting,” caused pain in
her neck, left arm, and the trapezius muscles bilaterally. He held her off work beginning
October 8, 2013 due to an “aggravation of the C5-6, C6-7 fusion causing swallowing problems
as well as causing C4-5, C7-T1 facet syndrome. There are no other nonwork conditions that
contributed to the aggravation.” Dr. Sontag provided periodic reports reiterating his support for
causal relationship through May 11, 2015.
In an October 19, 2015 report, Dr. Sontag explained that the objective evidence
supporting a causal relationship between appellant’s modified duties and the aggravation of her
cervical fusion included tenderness along the C4-5 and C7-T1 facets, limited cervical motion,
and neck and trapezial pain reproducible by 20 degrees of neck flexion and 10 degrees cervical
extension. He emphasized that “100 percent of [appellant’s] current cervical pain [was] related
to the work exposure from September 9 through October 5, 2013.” Dr. Sontag provided a
January 4, 2016 progress note.
By decision dated January 29, 2016, OWCP denied modification of its November 14,
2014 decision, finding that Dr. Sontag’s opinion was insufficient to meet appellant’s burden of
proof in establishing causal relationship between the claimed disability for work beginning
November 26, 2013, and the accepted cervical spine condition and surgery. It found that it was
“insufficient for Dr. Sontag to state that 100 percent of [appellant’s] complaints are secondary to
her work without providing a rationalized medical opinion which explains the connection
between the two.”
LEGAL PRECEDENT
Section 8102(a) of FECA8 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”9 This meaning, for brevity, is expressed as disability for work.10
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.11 Whether a particular injury
8

5 U.S.C. § 8102(a).

9

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
10

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

11

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

5

caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable, probative, and substantial
medical evidence.12
ANALYSIS
OWCP accepted that appellant sustained a temporary aggravation of a displaced cervical
disc, and a temporary aggravation of brachial neuritis. Appellant received compensation for
work absences from June 24 to November 25, 2013, based on the opinion of Dr. Sontag, an
attending Board-certified physiatrist. Thereafter, she claimed compensation for total disability
commencing November 26, 2013 after her physician, Dr. Sontag, noted her complaints of throat
pain and difficulty swallowing.
In a July 24, 2013 report, Dr. Sontag opined that appellant’s modified duties following
her April 12, 2010 fusion caused a recurrence of C5-6 and C6-7 radiculopathy and aggravated a
one mm C3-4 disc bulge. He observed objective weakness in the left deltoid, supraspinatus,
bilateral extensor digitorum, extensor indicis, abductor pollicis, and triceps. Dr. Sontag opined
that the fixation plates, although stable, affected appellant’s sensory nerves. Dr. Wu, an
attending Board-certified otolaryngologist, confirmed the plates had not shifted. However,
neither physician provided medical rationale which would explain the pathophysiologic
mechanism whereby the anterior C5-6 and C6-7 fixation plates would cause difficulty
swallowing. In the absence of such rationale, the opinions of Dr. Sontag and Dr. Wu are
insufficient to meet appellant’s burden of proof.13
Additionally, Dr. Sontag emphasized in December 8, 2014 and October 19, 2015 reports
that appellant’s work activities caused “100 percent” of appellant’s head, neck, upper extremity,
and swallowing complaints, as cervical range of motion maneuvers reproduced her symptoms.
He did not explain, however, the physiologic mechanism of this phenomenon, or whether these
maneuvers caused any objective change in appellant’s condition. As Dr. Sontag’s opinion lacks
these crucial explanations, it does not meet appellant’s burden of proof in establishing causal
relationship in this case.14
On appeal appellant’s representative contends that OWCP violated 20 C.F.R. § 10.617(e)
by failing to provide appellant a copy of the employing establishment’s September 26, 2014
response to the hearing transcript, disagreeing with the description of her limited duties. The
representative asserts that this prevented appellant’s physician from properly responding to the
employing establishment’s contentions.15 The Board notes, however, that this is harmless error

12

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

13

See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
14

Id.

15

Appellant’s representative inadvertently cited 20 C.F.R. § 10.618(b).

6

under R.W.16 Additionally, appellant’s representative argues that Dr. Sontag’s reports were
sufficiently certain and well rationalized to meet appellant’s burden of proof in establishing
causal relationship between the accepted cervical spine injury and the claimed period of
disability. As set forth above, Dr. Sontag’s reports were insufficiently rationalized to meet
appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established disability for work on and after
November 26, 2013 due to an accepted temporary aggravation of a displaced cervical
intervertebral disc and temporary aggravation of brachial radiculitis.

16

Docket No. 06-2000 (issued February 22, 2007) (appellant alleged that he was denied due process when he was
not served with a copy of the employing establishment’s comments following the hearing. While correct that OWCP
is required to furnish a copy of any comments made by the employing establishment to the employee and allot him
an additional 20 days to comment under 20 CFR § 10.617(e), the Board notes that this is harmless error. In
addressing violations of procedural due process under the Act, the Board has held that the opportunity for a hearing
or reconsideration by OWCP, together with the Board’s review on appeal, constitutes meaningful post-deprivation
processes whereby the government can address procedural errors. See Lan Thi Do, 46 ECAB 366 (1994).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2016 is affirmed.
Issued: February 20, 2018
Washington, DC

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

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

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

8