United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 12-1747
Issued: March 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 15, 2012 appellant filed a timely appeal of the March 6, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), which denied his claim for an
occupational disease. He also appealed a May 7, 2012 decision of OWCP, which denied merit
review. 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 case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an occupational disease in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 18, 2011 appellant, then a 31-year-old city carrier, filed a Form CA-2, notice
of occupational disease, alleging an aggravation of degenerative joint disease as a result of
prolonged walking and climbing stairs while delivering mail. He noted that in 2000 he had a
total left knee replacement and in 2006, a right knee replacement. Appellant received treatment
for his conditions from the Department of Veterans Affairs (VA). He became aware of his
condition and realized it was causally related to his employment on March 29, 2000. Appellant
did not stop work.
Appellant provided VA medical records. He was treated by Dr. Alice Fann, a Boardcertified physiatrist, on March 29, 2011 for carpal tunnel syndrome. Dr. Fann noted that his
history was significant for cervical myelopathy with C3-7 surgical decompression in 2008. She
noted appellant’s symptoms of bilateral hand numbness, pain in the left forearm and right hand
which worsened with repetitive activities.
Dr. Fann noted that a March 29, 2011
electromyogram (EMG) revealed evidence of bilateral severe median neuropathy at the wrist
consistent with carpal tunnel syndrome and possible diabetic neuropathy. She recommended
wrist splints and possible surgery.
A March 29, 2011 right wrist x-ray revealed
chondrocalcinosis affecting both wrists with associated degenerative changes and widening of
the scapholunate intervals bilaterally. On April 7 and 11, 2007 appellant had a prescription
refilled by Dr. Pawanjit Singh, a Board-certified internist. On April 7, 2011 he was treated by a
physician’s assistant for carpal tunnel syndrome of the bilateral wrists, neuropathy, possible
cervical radiculopathy and peripheral diabetic neuropathy. On April 7, 2011 Dr. Mark D. Walsh,
a Board-certified surgeon, performed a carpal tunnel injection. Appellant was treated by
Dr. Tania A. Barroso, a Board-certified physiatrist, from April 12 to 26, 2011, for degenerative
joint disease of the right knee. On April 12, 19 and 26, 2011 she performed intra-articular
injections of the right knee.
On August 30, 2011 OWCP advised appellant of the evidence needed to establish his
claim. It requested that he submit a physician’s reasoned opinion addressing the causal
relationship of his claimed condition to specific work factors.
On October 26, 2011 OWCP denied appellant’s claim finding that the medical evidence
was insufficient to establish that the diagnosed degenerative joint disease was causally related to
his work activities.
On January 11, 2012 appellant requested reconsideration. He submitted a November 29,
2011 report from Dr. Singh, who diagnosed severe degenerative joint disease of the hips and
knees. Appellant would soon require joint replacement surgeries. Dr. Singh further opined that
it was very likely that years of walking while carrying heavy loads contributed to the
degenerative joint disease in his hips and knees.
In a March 6, 2012 decision, OWCP denied modification of the October 26, 2011
decision.
On April 24, 2012 appellant requested reconsideration. He advised that he was sending
additional evidence to OWCP. No evidence was received.

2

In a decision dated May 7, 2012, OWCP denied appellant’s request for reconsideration
on the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. 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 factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.3
ANALYSIS -- ISSUE 1
It is not disputed that appellant’s duties as letter carrier included standing, walking and
climbing steps. He was been diagnosed with degenerative joint disease of the knees and hips.
The Board finds that appellant has not submitted sufficient medical evidence to establish that his
degenerative joint disease of the knees and hips was causally related to the accepted employment
activities.
In a November 29, 2011 report, Dr. Singh diagnosed severe degenerative joint disease of
the hips and knees and noted that appellant would require joint replacement surgeries. He stated
that it was “very likely” that years of walking while carrying heavy loads contributed to
appellant’s degenerative joint disease. Although Dr. Singh generally supported causal
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

Solomon Polen, 51 ECAB 341 (2000).

3

relationship, he did not provide adequate medical rationale explaining the basis of the causal
relationship between appellant’s degenerative joint disease of the hips and knees and the factors
of employment.4 He did not explain the extent of walking or the heavy loads appellant
performed or how this would cause the diagnosed condition. Dr. Singh did not exclude such
factors as age-related degenerative changes or any preexisting conditions. His reports are
insufficient to meet appellant’s burden of proof. Appellant was also treated by Dr. Barroso for
degenerative joint disease of the right knee. However, Dr. Barroso did not address whether
appellant’s employment activities caused or aggravated the diagnosed medical condition.5
In a March 29, 2011 report, Dr. Fann treated appellant for carpal tunnel syndrome. She
noted that his history was significant for cervical myelopathy with a prior C3-7 surgical
decompression in 2008. Dr. Fann noted a March 29, 2011 EMG revealed evidence of bilateral
severe median neuropathy at the wrist consistent with carpal tunnel syndrome and possible
diabetic neuropathy. On April 7, 2011 Dr. Walsh performed carpal tunnel injections. The
physicians did not support that appellant had an employment-related aggravation due to his
work. The reports of diagnostic testing are insufficient to establish the claim as they do not
provide any opinion on causal relationship. The record also contains treatment information from
a physician’s assistant. However, this evidence is of no probative medical value as a physician’s
assistant is not competent to render a medical opinion under FECA.6
The Board finds that the medical evidence does not establish that appellant’s
degenerative joint disease is causally related to his employment. An award of compensation may
not be based on surmise, conjecture or speculation. Neither, the fact that appellant’s condition
became apparent during a period of employment nor the belief that his condition was caused,
precipitated or aggravated by his employment is sufficient to establish causal relationship.7
On appeal, appellant asserted that he submitted sufficient medical evidence to support
that his diagnosed degenerative joint disease was work related and referenced a report by
Dr. Singh. As noted, this evidence is not sufficient to establish that his degenerative joint disease
was aggravated by his employment. Reports from appellant’s physicians failed to provide
sufficient medical rationale explaining how appellant’s degenerative joint disease was causally
related to particular employment factors.

4

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
5

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
6

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
7

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

4

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 10.607.8
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,9 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by [OWCP];
or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”10
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.11
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim on the grounds that he failed to provide sufficient
medical evidence to establish that the diagnosed condition was causally related to his work
duties. Thereafter, it denied appellant’s reconsideration request, without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. He asserted in his April 24, 2012, reconsideration request that he was sending
additional evidence to support that his condition worsened over the years. However, no
additional evidence was received. These assertions do not show a legal error by OWCP or a new
8

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).
9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.608(b).

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and relevant legal argument. The underlying issue in this case is whether appellant’s diagnosed
condition is causally related to his work duties. That is a medical issue which must be addressed
by relevant new medical evidence.12 However, appellant did not submit any new and relevant
medical evidence in support of his claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed conditions were causally related to his employment. The Board further that OWCP
properly denied his request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the May 7 and March 6, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 5, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

12

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
CENTER, Abilene, TX, Employer
__________________________________________

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

Docket No. 12-960
Issued: September 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 26, 2012 appellant filed a timely appeal from a January 19, 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 established a wrist condition causally related to her federal
employment.
FACTUAL HISTORY
On October 26, 2011 appellant, then a 51-year-old delivery bar code sorter (DBCS) clerk,
filed an occupational disease claim (Form CA-2) alleging that she sustained a bilateral wrist

1

5 U.S.C. § 8101 et seq.

tendinitis as a result of her federal employment. The reverse of the claim form indicated that she
did not stop work.
In an accompanying narrative statement, appellant noted that she first had wrist pain in
2006 while working on DBCS machines. She changed jobs in December 2006 and the pain
eventually ceased. Appellant again began working on DBCS machines in March 2009 and after
a few months, experienced pain in her right wrist. She noted that her job duties included
repetitive loading and sweeping the DBCS machine.
In a letter dated November 9, 2011, OWCP requested that appellant submit medical
evidence to support her claim. It asked for a physician’s opinion supported by medical
explanation regarding causal relationship between a diagnosed condition and federal
employment. OWCP also sent a November 9, 2011 letter to the employing establishment with
respect to appellant’s work duties.
On November 28, 2011 appellant submitted a brief report from Dr. Clifford DePrang, an
orthopedic surgeon, who treated her on October 11, 2011. Dr. DePrang stated “[appellant] is
suffering from bilateral wrist tendinitis which is a result of her repetitive activities at her
workplace (on a mail processing machine).” He recommended that she be placed into a different
job position that did not require as much repetitive movement of her wrists. Appellant also
submitted an October 3, 2011 report from a physician’s assistant.
By decision dated January 19, 2012, OWCP denied the claim for compensation. It stated
that appellant was asked to submit responses to the questionnaire regarding the employment
factors she believed caused an injury. OWCP concluded, “Your case is denied because the
evidence is not sufficient to establish that the event occurred as you described. Specifically, your
case is denied because the evidence is not sufficient to establish that the medical condition is
causally related to the accepted work event(s).”
LEGAL PRECEDENT
A claimant seeking benefits under FECA2 has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
A claimant must submit a factual statement identifying the employment factors alleged to
have caused or contributed a medical condition. Appellant did provide a narrative statement
addressing the employment factors she believed contributed to her wrist condition. She noted
that her job duties since March 2009 involved working with DBCS machines, with repetitive
motion in loading and sweeping.
It is not clear what findings OWCP made in the January 19, 2012 decision with respect to
appellant’s factual statement. It noted requesting that she respond to a questionnaire regarding
employment factors, but the November 9, 2011 letter sent to her did not request additional
factual evidence. The January 19, 2012 decision also referred to the evidence not being
sufficient to establish that the event occurred as alleged and, in the next sentence, referred to
accepted work events.
The Board finds that appellant provided a detailed factual statement identifying those
employment factors she believed contributed to her wrist condition. In the absence of any
contrary evidence that she did not perform the duties as alleged, the factual element of the claim
has been established. An employee’s statement alleging that an injury occurred at a given time
and in a given manner is of great probative value and will stand unless refuted by strong and
persuasive evidence.8
The issue is whether the medical evidence is sufficient to establish a diagnosed condition
causally related to the identified employment factors. To establish causal relationship, the
medical evidence must be based on a complete factual and medical background and must explain
the nature of the relationship between the diagnosed condition and the employment factors.
4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

Allen C. Hundley, 53 ECAB 551, 552 (2002).

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Dr. DePrang stated that he treated appellant on October 11, 2011. His report is not sufficient to
establish the claim. Dr. DePrang did not provide a factual or medical background. He did not
provide a full medical history or results on examination. Dr. DePrang referred to repetitive
activities at a mail processing machine, without setting forth an understanding of what the
specific activities entailed, how often they were performed or any other relevant factual history.
Moreover, he did not explain the nature of the relationship between the diagnosed wrist tendinitis
and the implicated employment factors. The Board notes that, with respect to the report from a
physician’s assistant, this is of no probative value since a physician’s assistant is not considered a
physician under FECA.9
On appeal, appellant submitted additional evidence and stated that she had been advised
by her physician that the orthopedic surgeons letter was a comprehensive medical report showing
an injury resulting from operating DBCS machines. The Board’s review of her case is limited to
the evidence that was before OWCP at the time of its final decision.10 The only medical
evidence from a physician that was before OWCP at the time of the January 19, 2012 decision
was the brief report from Dr. DePrang. The Board cannot consider new evidence on appeal.
Appellant also stated that all she was requesting was to be permanently removed from the
DBCS machines. The Board’s jurisdiction is to consider and decide appeals from final decisions
of OWCP in any case arising under FECA.11 It is appellant’s burden of proof to establish her
claim for compensation. She did not meet her burden in this case based on the evidence of
record.
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 establish a wrist injury causally related to her
federal employment.

9

George H. Clark, 56 ECAB 162 (2004).

10

20 C.F.R. § 501.2(c)(1).

11

Id. at § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the January 19, 2012 decision of the Office of
Workers’ Compensation Programs is modified to reflect that appellant established the factual
element of the claim and affirmed as modified.
Issued: September 25, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
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and
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DEPARTMENT OF THE NAVY, NAVAL AIR
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SYSTEMS COMMAND-STATIONS,
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Cherry Point, NJ, Employer
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___________________________________________ )
A.V., Appellant

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

Docket No. 13-2174
Issued: February 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 27, 2013 appellant filed a timely appeal from a May 20, 2013 merit
decision and an August 16, 2013 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an injury
causally related to factors of his federal employment; and (2) whether OWCP properly refused to
reopen his case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 14, 2013 appellant, then a 65-year-old blade and vane repairer, filed an
occupational disease claim alleging that he sustained pain in his right shoulder and ring finger in
the performance of duty. He indicated that he operated the cleaning machine and it almost threw
him and lost control. Appellant stated that he was very weak and almost passed out. He also
noted that, when he informed the supervisor, he was told not to use the machine. Appellant
alleged that his injury began on May 15, 2012 and that he first became aware of the injury on
that date. His supervisor noted that appellant was on “some type of restriction and or light duty
for as long as I have been supervisor. I have always advised him to work within his restrictions
and have accommodated his restrictions.”
By letter dated March 18, 2013, the employing establishment controverted the claim.
Cheri Anthony indicated that appellant had several injuries and surgeries. She noted that he had
received over $50,000.00 in schedule awards and disability payments since 2006. Ms. Anthony
indicated that appellant’s current accepted conditions were trigger finger, lesion of ulnar nerve,
carpal tunnel syndrome and tenosynovitis of the hand and wrist. She also noted that he had
permanent impairment of left and right arms and explained that he had pain in the right finger for
which he had surgery on August 31, 2012. Ms. Anthony challenged the claim due to the fact that
appellant worked outside of his restrictions.
OWCP received a statement from appellant on March 18, 2013, which outlined his
history, including his prior claims2 and a daily activity check list.
By letter dated March 29, 2013, OWCP advised appellant that additional factual and
medical evidence was needed. It explained that a physician’s opinion was crucial to appellant’s
claim and allotted him 30 days to submit the requested information.
In an April 18, 2013 treatment note, Dr. Edward C. Brown, III, a Board-certified
orthopedic surgeon, prescribed light duty with restrictions to include one handed work only.
OWCP also received an April 19, 2013 medical referral.
By decision dated May 20, 2013, OWCP denied appellant’s claim. It found that the
medical evidence did not demonstrate that the claimed medical condition was related to
established work-related events.
In an April 18, 2013 report, Dr. Brown noted that appellant was seen for right shoulder
pain and weakness. He reviewed diagnostic tests and determined that x-rays revealed a mild
calcification at the lateral tendons of the shoulder. Additionally, Dr. Brown noted that a
magnetic resonance imaging (MRI) scan revealed evidence of supraspinatus tendinitis with
evidence of a full-thickness rotator cuff tear. He noted that appellant related that he was using a
2

The other claims include a March 14, 2006 injury that resulted in permanent impairment of the left and right
arms under claim File No. xxxxxx743; a January 15, 2008 injury to include bilateral sensorineural hearing loss
under claim File No. xxxxxx963; and a November 3, 2008 claim for right-sided disc protrusion T11-12, facet joint
arthritis at L4-5 and L3-4, in claim File No. xxxxxx183. These other claims are not presently before the Board.

2

power buffer machine and had pain inside the shoulder. Dr. Brown also advised that appellant
was complaining of some low back pain. He examined appellant and determined that regarding
the right shoulder appellant had good elevation of the arm to about 140 to 150 degrees and some
pain in the painful arc region. Dr. Brown reviewed x-ray reports and noted that they revealed
some mild glenohumeral degenerative changes and some calcification at the lateral rotator cuff
tendon. Additionally, he indicated that the MRI scan revealed evidence of a full-thickness
supraspinatus rotator cuff tear that was small to moderate in size. Dr. Brown also noted that the
studies were not available, merely the reports. He diagnosed right shoulder pain and weakness
associated with a supraspinatus rotator cuff tear. Dr. Brown advised that they would try to “sort
out whether this is a condition that is covered by his workers’ compensation number or if this is a
condition that we have to treat under his own private insurance. In any event, I recommend that
he have an arthroscopic rotator cuff repair and decompression and we will schedule this once we
have appropriate approval.”
In a June 4, 2013 report, Dr. Brown noted that appellant was seen for complaints of right
shoulder pain. He indicated that appellant was right-hand dominant and small framed.
Dr. Brown diagnosed right shoulder symptomatic full-thickness supraspinatus rotator cuff tear.
OWCP received physical therapy notes.
In a letter dated July 28, 2013, appellant again described the duties he believed
contributed to his condition. He explained that it occurred when he used the cleaning machine
and he was doing it for more than a year. Appellant indicated that his treating physician had
provided the necessary information to support his claim.
On August 6, 2013 appellant requested reconsideration.
By decision dated August 16, 2013, OWCP denied appellant’s request for reconsideration
of the merits finding that he did not submit pertinent new and relevant evidence or show that
OWCP erroneously applied or interpreted a point of law not previously considered by OWCP.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 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, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

3

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.6
ANALYSIS -- ISSUE 1
The evidence establishes that appellant was operating the cleaning machine and it almost
threw him and he lost control. However, appellant submitted insufficient medical evidence to
establish that his shoulder and ring finger condition was caused or aggravated by these activities
or any other specific factors of his federal employment.
In support of his claim, appellant submitted an April 18, 2013 report from Dr. Brown
who prescribed light duty with restrictions to include one handed work only. However,
Dr. Brown merely prescribed restrictions and did not provide a diagnosis or an opinion regarding
the cause of the reported condition. Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.7
Consequently, the Board finds that this evidence is insufficient to establish appellant’s
claim. The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a medical condition involving his spine, appellant has not met his burden of
proof to establish a medical condition causally related to factors of his employment.
6

Id.

7

S.E., Docket No. 08-2214 (issued May 6, 2009).

8

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

9

Id.

4

LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,10 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that [OWCP] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [OWCP];
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [OWCP].”11
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.12
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim for an injury in the performance of duty
and timely requested reconsideration on August 6, 2013.
The underlying issue on
reconsideration is medical in nature, whether his shoulder and ring finger conditions were caused
or aggravated by operating the cleaning machine or any other specific factors of his federal
employment.
In support of his August 6, 2013 reconsideration request, appellant submitted an April 18,
2013 report from Dr. Brown who noted that appellant was seen for right shoulder pain and
weakness. Dr. Brown noted that appellant had explained that he was using a power buffer
machine and had pain inside the shoulder. He provided findings and diagnosed right shoulder
pain and weakness associated with a supraspinatus rotator cuff tear. Dr. Brown also indicated
that he was going to determine if appellant’s condition was a workers’ compensation injury.
Thereafter, OWCP denied appellant’s application on August 16, 2013, finding that no new
evidence was offered warranting further merit review. However, the Board notes that the
April 18, 2013 report from Dr. Brown constitutes relevant and pertinent new medical evidence
not previously considered by OWCP. The Board notes that the only medical report received
prior to the May 20, 2013 decision, was a treatment note in which Dr. Brown noted appellant’s
duty restrictions. As the April 18, 2013 report notes the history of injury and addresses whether
10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b).

12

Id. at § 10.608(b).

5

the condition is a workers’ compensation injury, it is relevant and pertinent new evidence.
Therefore, OWCP was obligated to conduct a merit review of the claim when appellant
submitted this evidence in support of his reconsideration request.13 Reopening a claim for merit
review does not require a claimant to submit all evidence which may be necessary to discharge
his burden of proof.14 If OWCP should determine that the new evidence submitted lacks
probative value, it may deny modification of the prior decision, but only after the case has been
reviewed on the merits.15 On remand it shall conduct a merit review of the entire record. After
such further development as is deemed necessary, OWCP shall issue an appropriate merit
decision.
On appeal, appellant argued that his condition was work related. As noted above, this case
is not in posture for decision. It is being remanded for a merit review of the claim. Appellant
also submitted additional evidence on appeal. However, the Board has no jurisdiction to review
this evidence for the first time on appeal.16
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty. The Board further finds that OWCP improperly refused to reopen his
case for further review of the merits of his claim under 5 U.S.C. § 8128(a).

13

D.M., Docket No. 10-1844 (issued May 10, 2011).

14

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

15

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

16

The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35 (1952).

6

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed and the August 16, 2013 OWCP decision is set
aside and remanded for further review consistent with this decision.
Issued: February 26, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


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

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

Docket No. 14-1426
Issued: April 20, 2015

Case Submitted on the Record

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

JURISDICTION
On June 2, 2014 appellant, through counsel, filed a timely appeal of a March 25, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to modify a February 1, 2000 loss
of wage-earning capacity (LWEC) decision.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 41-year-old letter carrier, slipped
on a patch of ice on January 5, 1994 and injured her neck and back. She filed a claim for benefits,
which OWCP accepted for cervical and thoracic sprain and occipital contusion. On August 27,
1

5 U.S.C. § 8101 et seq.

1996 appellant filed a claim for benefits after she sustained a twisting injury to her back. OWCP
accepted the claim for parathoracic muscle strain. On July 2, 1998 appellant filed a Form CA-2a
claim for benefits, alleging that she sustained a recurrence of disability causally related to her
accepted conditions. OWCP accepted the claim for exacerbation of cervical, thoracic, and lumbar
myofascitis, and aggravation of degenerative disc disease of the lumbar spine.
On March 25, 1999 appellant accepted a job as a modified letter carrier and began work
on April 10, 1999. The position was tailored to her physical restrictions and allowed her to work
for eight hours a day, with no pushing, pulling, or lifting over 25 pounds, and no repetitive
climbing.2
By decision dated February 1, 2000, OWCP issued a wage-earning capacity decision
finding that appellant had worked more than 60 days in the modified position and the actual
wages she earned in the position of modified letter carrier, $635.90 per week, fairly and
reasonably represented her wage-earning capacity.
Appellant worked at her modified job until May 20, 2010, when the employing
establishment transferred her to a temporary supervisory position. On May 20, 2011 the
employing establishment withdrew the job under the National Reassessment Program (NRP).
On July 18, 2011 appellant filed a Form CA-7, followed by other such forms, for a wage-loss
compensation claim beginning July 2, 2011 and continuing until September 9, 2011. The
employing establishment indicated on the forms that it no longer had work available for
appellant within her medical restrictions.
By decision dated October 12, 2011, OWCP denied modification of the February 1, 2000
LWEC decision, finding that appellant failed to submit evidence sufficient to establish one of the
three criteria required for modification. By decision dated April 16, 2012, an OWCP hearing
representative affirmed the October 12, 2011 decision.
In a decision dated December 14, 2012,3 the Board set aside the April 16, 2012 decision.
It found that OWCP improperly analyzed the case under the customary criteria for modifying a
loss of wage-earning capacity determination and did not acknowledge FECA Bulletin No. 09-05,
which requires OWCP to develop the evidence to determine whether a modification of that
decision is appropriate when modified-duty positions are withdrawn pursuant to NRP.4 The
2

The job description stated: “Assigned to the South Euclid Station to case letter and flat mail on routes; check AZ mail against printouts; Delivery Confirmation Scanner A.M. list; DSIS volume input; DSIS hour transfers; balance
hours on carrier report; deliver late arriving express mail; deliver hold mail; complete accounting period drive out
forms; AIS Red Books; Mark-over mail; second notices and returns; AVUS; AL ADVANCE; All Quality Assurance
Audits; Delivery Confirmation Scanner -- option two review against A.M. list and input of any missing numbers;
P.M. Express or Priority Scanning, updating route books; answering telephones; Aviation Security Audit; man the
caller window for customer pickup of certifieds, insureds, customs, c.o.d.s, parcels and hold mail; check in carriers
at cage; weekly gas report. Assist manager with the new OSHA 200 Log requirements.”
3

Docket No. 12-1295 (issued December 14, 2012).

4

FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these types of cases, may
undertake further nonmedical development, such as requiring the employing establishment to address in writing
whether the position on which the loss of wage-earning capacity determination was based was a bona fide position
at the time of the rating and to direct a review of its files for contemporaneous evidence concerning the position.

2

Board found that OWCP was required to review whether a current medical report supported
work-related disability and to further develop the evidence from appellant and the employing
establishment if the case lacked current medical evidence. It therefore remanded the case for
OWCP to further consider the case in conformance with FECA Bulletin No. 09-05 guidelines
and to issue a de novo decision on appellant’s entitlement to wage-loss compensation beginning
July 2, 2011. The complete facts of this case are set forth in the Board’s December 14, 2012
decision and are herein incorporated by reference.
In an August 2010 report, received by OWCP on January 22, 2013, Dr. David Hochman,
Board-certified in internal medicine, stated that appellant was experiencing low back pain which
radiated into the left lower extremity. He stated that appellant was reassigned to a letter carrier
204B supervisor in August 2010 and that, apparently, her job duties as a 204B supervisor
required her to push cages, push up tubs of mail, twist, and bend on a regular basis. This caused
an exacerbation of her condition. Dr. Hochman diagnosed a permanent aggravation of the
lumbar/thoracic degenerative disc disease stemming from her work activities, which remained
symptomatic. He advised that appellant underwent a magnetic resonance imaging (MRI) scan in
May 2011, which showed facet pathology at the L3-5 levels. Dr. Hochman opined that, within a
reasonable degree of medical probability, there was a permanent aggravation of lumbar/thoracic
degenerative disc disease as a result of her work activities while working as a 204B supervisor.
Following the Board’s decision, the employing establishment submitted several
documents to OWCP. These included: a Postal Service Form 50, effective April 10, 1999,
which reassigned appellant from a carrier technician job to a modified rehabilitation job offer; a
February 23, 1999 rehabilitation job offer, signed by appellant on March 25, 1999; limited-duty
job offers dated November 23, 2007 and April 10, 2009; an assignment order, Postal Service
Form 1723, temporary assignment order, starting May 24, 2010 and ending December 31, 2010;
assignment orders, Postal Service Form 1723, starting May 27, 2010 ending December 31, 2011.
The employing establishment indicated on the form that the rehabilitation job offer
appellant signed on March 25, 1999 was in fact a bona fide position at the time of the LWEC
rating. It stated that the temporary assignment order forms (Postal Service 1723 forms) were
used as a written agreement between management and employees when an employee performed
duties other than those in employee’s official job description, including higher level and training
assignments.
In order to determine appellant’s current condition, OWCP referred the case to
Dr. Manhal Ghanma, Board-certified in orthopedic surgery. In a March 8, 2013 report, after
reviewing the medical history and statement of accepted facts and stating findings on
examination, he opined that the record indicated that she did not develop any radiculopathy as a
result of her work injuries, as evidenced by the multiple records presented in her medical file.
Dr. Ghanma advised that the imaging studies did not reveal any evidence of nerve root
compression to support radiculopathy based on her work injuries. He stated that, while appellant
had continued complaints of global left leg and foot numbness, these symptoms were attributable
to nonaccepted conditions and not to her work injuries. Dr. Ghanma opined that the objective
evidence in the file did not support evidence of radiculopathy either in the upper or the lower
extremities. He advised that, in light of the lack of objective evidence to support radiculopathy,
with her imaging studies revealing no evidence of nerve root compression, there was nothing in

3

the record which supported a diagnosis of radiculopathy. Dr. Ghanma further advised that none
of her accepted conditions would have resulted in radiculopathy, including cervical sprain,
thoracic sprain, occipital contusion, parathoracic muscle strain, cervical, thoracic, and lumbar
myofascitis, or aggravation of degenerative disc disease of the lumbar spine.
In a decision dated April 16, 2013, OWCP denied modification of the original
February 1, 2000 LWEC decision, finding that appellant had failed to establish any of the three
elements required for modification; i.e., that the original LWEC rating was in error, that her
accepted employment-related medical condition had materially changed, or that she had been
retrained or otherwise been vocationally rehabilitated. It also reviewed the evidence of record in
accordance with the procedures outlined in FECA Bulletin No. 09-05. OWCP stated that the
evidence submitted by the employing establishment, consisting of the rehabilitation job offer and
the Postal Service Form 50, Notice of Personnel Action form, clearly documented that at the
time the rehabilitation job offer was issued and accepted on March 25, 1999, all parties involved
understood that the job offer was a permanent, bona fide job offer and that it was not make shift
nor odd lot. OWCP stated that this understanding was clearly supported by the fact that the
employing establishment issued a Postal Service Form 50, Notice of Personnel Action,
documenting that she was formally reassigned from the Carrier Tech Level-05 with routes to the
modified rehabilitation job offer, effective April 10, 1999.
OWCP further found that appellant had not submitted sufficient medical evidence to
indicate or support a material change in her accepted conditions, as she had failed to provide any
current medical evidence supporting that her accepted work-related condition had materially
changed to the extent that she was unable to perform any work, either full time or part time, with
or without restrictions. It found that there was no medical evidence from her treating physician
addressing and explaining whether any residuals continued to disable her from her date-of-injury
position. OWCP stated that it had referred her to Dr. Ghanma, whose March 8, 2013 report
indicated that she did not develop any radiculopathy as a result of her work injuries, that the
imaging studies did not reveal any evidence of nerve root compression to support radiculopathy
based on her work injuries. It advised that, while appellant had continued complaints of left leg
and foot numbness, Dr. Ghanma found that these symptoms were attributable to nonaccepted
conditions and not to her accepted employment conditions, including cervical sprain, thoracic
sprain, occipital contusion, parathoracic muscle strain, cervical, thoracic, and lumbar
myofascitis, or aggravation of degenerative disc disease of the lumbar spine. Lastly, OWCP
found that there was no evidence that she had been retrained or had otherwise been vocationally
rehabilitated.
By letter dated April 18, 2013, appellant, through her attorney, requested an oral hearing,
which was held on August 14, 2013. At the hearing, appellant’s attorney argued that the LWEC
decision was incorrect for two reasons, contending that appellant was not working in the job that
was used for the 2000 LWEC decision when her job was withdrawn and that the job used for the
LWEC decision was not a bona fide job offer. He asserted that since there was no hiring or
firing hierarchy involved with that job, by definition, it could not be considered bona fide.
Appellant stated that she was not working in that job when her position was withdrawn in
May 2011. Counsel advised that she had been working in a supervisory capacity for a year after
leaving her modified letter carrier, light-duty position. He noted that the supervisory job was not
a light-duty position, but appeared to be within the claimant’s physical restrictions; however, due

4

to NRP, the supervisory job was withdrawn. Counsel noted that when appellant tried to return to
work in her prior light-duty position, there was no job available for her, as the position had been
filled. He stated that appellant therefore filed for retirement, effective September 2, 2011.
Appellant testified that the supervisory job she held was a 204B position. She stated that
before she worked as a supervisor, she had been working as a modified letter carrier from 1999
to 2010; this was a clerical job, the duties of which included sitting down, answering the
telephone, changing addresses, casing mail for about an hour in the morning, and doing anything
else her superiors asked her to do. Appellant asserted that, after about a year after she began
working this job, her condition worsened. She stated that she stopped casing mail because it was
aggravating her symptoms and that her manager at the time told her to stop this activity if it hurt,
although she continued to do the other clerical work in this position and continued to perform the
modified job for about 10 years, before becoming a supervisor in 2010.
Appellant stated that a co-worker at a higher level noticed that many of her assigned
duties were consistent with supervisory activities, and that she performed these duties well. As a
result, management sent her to another station to work as a supervisor. Appellant advised that
the job duties of the supervisory position were generally within her restrictions although it
required a little more lifting, bending, and standing. She stated that she performed this position
until a manager called her at home and told her the supervisory position was no longer available
to her. Appellant tried to return to her regular-duty station and perform her old position there,
but the position had been filled. She stated that her last day of work was May 7, 2011 and that
she remained in a pay status through May 20, 2011, due to vacation time. When she returned to
work from her vacation, appellant received NRP paperwork and was told she no longer had a
job. She filed a union grievance, which she won, and in an August 6, 2012 prearbitration
settlement it was stipulated that she was entitled to back wages for all time lost between May 20,
2011 through the date of her retirement.
Appellant submitted a copy of the August 6, 2012 settlement agreement which indicated
that she had won her grievance against management when it failed to provide her with eight
hours of work as of May 20, 2011. The agreement awarded her all lost wages and benefits from
May 20, 2011 to the date of her retirement that she would have otherwise received as if she had
worked an eight-hour day, including all wages, annual leave, sick leave, and retirement benefits.
In a decision dated March 25, 2014, an OWCP hearing representative affirmed the
April 16, 2013 decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 Section 8115(a) of FECA provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his or her actual earnings if his or her actual earnings fairly and reasonably
5

See Katherine T. Kreger, 55 ECAB 633 (2004). See 5 U.S.C. § 8115 (determination of wage-earning capacity).

5

represent his or her wage-earning capacity.6 Compensation payments are based on the wageearning capacity determination and it remains undisturbed until properly modified.7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted 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, in fact, erroneous.8 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.9
FECA’s procedure manual states that when the employing establishment has withdrawn a
light-duty position which accommodated the claimant’s work restrictions and a formal wageearning capacity decision has been issued, the wage-earning capacity decision will remain in
place.10 The claims examiner should, however, consult FECA Bulletin No. 09-05 (United States
Postal National Reassessment Program Guidance) issued August 18, 2009 if the circumstances in
the case indicate that the position in question may have been withdrawn (in whole or in part) as a
result of NRP.11
ANALYSIS
In its April 16, 2013 and March 25, 2014 decisions, OWCP denied modification of the
February 1, 2000 LWEC determination. It found that the duties of the modified city letter carrier
fairly and reasonably represented the claimant’s wage-earning capacity, and that appellant had
no loss in wage-earning capacity. OWCP stated that she had worked in this full-time position
over 60 days and had demonstrated her ability to perform the duties of the position. The record
shows that appellant returned to work as a modified city letter carrier on or around April 10,
1999 and worked at this position until May 24, 2010, when she was granted a temporary
assignment as a 204B supervisor. Appellant worked in that position until May 2011, when the
employing establishment advised her that there was no work available to her as a 204B
supervisor and the job was withdrawn under NRP.
Appellant subsequently filed a Form CA-2a notice of recurrence on May 20, 2011,
requesting compensation for wage loss as of the date when the employing establishment advised
her that there was no work available within her restrictions. OWCP properly found that
appellant was not entitled to wage-loss compensation when she stopped work, as her wageearning capacity had previously been established. As noted above, when the employing
establishment has withdrawn a light-duty assignment, which accommodated appellant’s work
6

See id. at § 8115.

7

Id. at § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

8

Sharon C. Clement, 55 ECAB 552 (2004).

9

T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.7 (June 2013).
11

Id.

6

restrictions and a formal wage-earning capacity decision has been issued, the decision will
remain in place, 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.12
Appellant argued that the LWEC decision should be set aside because it was based on a
position that was not bona fide and was therefore not suitable for an LWEC determination,
pursuant to FECA Bulletin No. 09-05. This bulletin provides that the determination of whether a
loss of wage-earning capacity was based on an actual bona fide position may be evinced by a job
offer, SF-50, a classified position or formal position description, or the documentary evidence.13
Based on these guidelines, OWCP properly found that the modified letter carrier job was bona
fide and not a makeshift or odd-lot position. The March 25, 1999 job offer which appellant
accepted contained a clear position description, identified the title of the job, a set schedule, and
the duties of the position. The duties of the modified letter carrier were clearly outlined in the
job offer. It was not a temporary position, as indicated on an SF-50 that officially reassigned
appellant to work as a modified letter carrier as a permanent position. Appellant has provided no
evidence that there was insufficient work for her to perform. There is no indication that she
needed assistance from her supervisor or her coworkers to fulfill the assigned duties of her
position, or that she worked in a self-directed manner or schedule. Appellant testified at the
hearing that she performed the duties of modified letter carrier job for approximately 10 years,
before she accepted a job as a 204B temporary supervisor. Although she testified that her
manager allowed her to cease casing mail when she complained that particular activity
aggravated her lower back, she provided no evidence to support this assertion and did not
attempt to switch jobs until management offered her a supervisory position after 10 years. She
continued to work in the same position until 2000, when the LWEC decision was put in place,
and she continued to work in this position until 2010, when she accepted the assignment as a
204B supervisor. OWCP has established that the position was a bona fide position. As the
position had been filled after appellant left the position for the supervisory position, this evidence
further corroborates that it was a bona fide position.
Further, appellant has not provided sufficient medical evidence to establish that her
condition worsened such that the LWEC should be modified. As noted above, she demonstrated
the physical ability to perform the functions of the modified letter carrier position for 10 years.
Appellant also demonstrated the ability to perform the duties of a temporary supervisory position
for one year. The medical evidence in the record consists of reports from Dr. Ghanma and
Dr. Hochman.
Dr. Ghanma indicated in his March 8, 2013 report that appellant had not developed any
radiculopathy as a result of her work injuries and opined that imaging studies failed to
demonstrate nerve root compression to support radiculopathy based on her work injuries. He
found that her symptoms of left leg and foot numbness were attributable to nonaccepted
conditions, including cervical sprain, thoracic sprain, occipital contusion, parathoracic muscle
12

See supra note 8.

13

See also P.P., Docket No. 14-656 (issued December 18, 2014); T.P., Docket No. 14-1207 (issued
November 7, 2014).

7

strain, cervical, thoracic, and lumbar myofascitis, or aggravation of degenerative disc disease of
the lumbar spine.
In his August 2010 report, Dr. Hochman stated that appellant’s job duties as a 204B
supervisor required her to push cages, push up tubs of mail, twist, and bend on a regular basis.
This caused an exacerbation of her low back condition. He stated that a May 2011 MRI scan
showed facet pathology at the L3-5 levels and opined that appellant sustained a permanent
aggravation of lumbar/thoracic degenerative disc disease as a result of her work activities while
working as a 204B supervisor. Dr. Hochman’s opinion on causal relationship is of limited
probative value in that he did not provide adequate medical rationale in support of his
conclusions.14 He did not describe how appellant’s work duties as a supervisor would have been
competent to cause the alleged aggravation of her low back conditions. It is unclear if
Dr. Hochman had an accurate history as he did not indicate an awareness that appellant had
stopped working in that supervisory position as a result of NRP.15 Appellant therefore failed to
show that she sustained a material change in her accepted work-related conditions and, as noted
above, the evidence does not support that her May 2010 transfer to supervisor or her May 2011
work stoppage was due to a worsening of her physical condition or an increase of disability
related to an accepted work-related condition.
Accordingly, the Board finds that modification of the February 1, 2000 LWEC decision
is not warranted. The evidence of record fails to support that the LWEC was in error, the
claimant was vocationally rehabilitated, or that there was material change in the nature and
extent of an accepted, work-related condition. Appellant is not entitled to wage-loss
compensation effective May 20, 2011, or thereafter, when the employing establishment withdrew
her job. For these reasons, she has not shown that OWCP’s February 1, 2000 wage-earning
capacity determination should be modified.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to modify OWCP’s
February 1, 2000 wage-earning capacity determination.

14

William C. Thomas, 45 ECAB 591 (1994).

15

See Geraldine H. Johnson, 44 ECAB 745 (1993).

8

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2163
Issued: April 28, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 21, 2007 appellant, through counsel, filed a timely appeal from the decision of
the Office of Workers’ Compensation Programs, in File No. 03-2006734, dated March 2, 2007
wherein the hearing representative affirmed the Office’s decision that appellant had not
established entitlement to compensation benefits as a result of employment-related disability
after September 13, 2004. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction to review the merits of this claim.
ISSUE
The issue is whether appellant has established that she is entitled to compensation
benefits after September 13, 2004 causally related to the accepted employment injuries.
FACTUAL HISTORY
This case has been before the Board on prior appeal. By decision dated July 5, 2006, the
Board affirmed the Office hearing representative’s August 18, 2004 decision, finding that
appellant failed to meet her burden of proof to establish a recurrence of disability commencing

February 26, 2003, causally related to her accepted bilateral carpal tunnel syndrome. The
findings of law and fact as set forth in the prior opinion are hereby incorporated by reference.1
The relevant facts are set forth below.
On March 6, 2002 appellant, then a 50-year-old clerk, filed an occupational disease claim
alleging that as a result of 16 years of keying and lifting she had developed carpal tunnel
syndrome. By letter dated June 7, 2002, the Office accepted her claim for bilateral carpal tunnel
syndrome. The Office authorized left and right carpal tunnel release surgeries on June 7, 2002.
Dr. James Raphael, a Board-certified orthopedic surgeon, performed a right carpal tunnel release
on July 8, 2002. Appellant stopped work on July 8, 2002 and returned to regular-duty work
effective October 15, 2002. The left carpal tunnel surgery was authorized but not performed at
that time.
Appellant filed a claim for recurrence of disability beginning July 13, 2004, noting that
left wrist surgery was performed on July 14, 2004. Specifically, on that date, Dr. Scott M. Fried,
an osteopath, performed a median neuropathy with brachial plexopathy left upper extremity.
Although the Office initially denied appellant’s claimed disability resulting from this surgery, by
decision dated November 2, 2005, the hearing representative advised the Office that, as it had
previously authorized left wrist surgery in 2002, it was to authorize this surgery. On remand, the
Office was to obtain medical evidence to determine the appropriate period of disability.
In an October 4, 2004 chart note, Dr. Fried listed his impressions as repetitive strain
injury secondary to keying and repetitive activity as a data entry clerk; median neuropathy with
flexor tenosynovitis bilaterally, proximately radiculitis with brachial plexitis bilaterally, status
postoperative on July 2002 right carpal tunnel release and July 13, 2004 median nerve
decompression with neurolysis and tenosynovectomy. He noted that he did not foresee appellant
returning to repetitive activities. Dr. Fried also opined that appellant was “unable to return to her
work activities and notes increased activity definitely increases her symptoms.” In a chart note
dated May 16, 2005, he noted that appellant was overall stable, but definitely remains with
symptoms. Dr. Fried noted that appellant’s major symptomatology is the right brachial plexus
down through her arm, although her left side is problematic as well. He noted that appellant
complained of a “relatively constant burning and is awakened regularly with her pain,
discomfort, numbness and tingling.” Dr. Fried also noted positive compression radial nerve both
forearms, right side greater than left, and median nerve is positive right and moderate left. He
noted, “Phalen’s is positive right side greater than left for dysesthesias and a hand sensation
about the plexus. Reos and Hunter testing are mildly positive, again right side greater,
reproducing dysesthesias.” Dr. Fried noted that appellant remained with significant symptoms.
He recommended a spa program and also indicated that appellant was a candidate for pain
management and self-hypnosis techniques.

1

Docket No. 05-1231 (issued July 5, 2006).

2

By letter dated June 23, 2006, the Office referred appellant to Dr. Steven Valentino, an
osteopath. In a medical opinion dated July 18, 2006, Dr. Valentino diagnosed bilateral carpal
tunnel release. He concluded:
“Review of medical records did not substantiate a recurrence of disability
occurring on March 26, 2002. Given, however, that the diagnosis of bilateral
carpal tunnel syndrome was accepted as being related to the original work injury,
a period of two-months disability subsequent to the surgery on the left which
occurred on [July 13, 2004] would have been reasonable. Total disability and
maximum medical improvement would typically have been in reach by
[September 14, 2004] and the records do not substantiate any additional disability.
Today’s evaluation revealed multiple subjective complaints without objective
basis. I find no organic basis to her ongoing symptomatology or residual from her
work injury. I find she can return to gainful employment including her preinjury
position as related to her work-related diagnosis of bilateral carpal tunnel
syndrome.
In a decision dated August 15, 2006, the Office approved compensation for total
disability from July 13 to September 13, 2004. It denied compensation beyond September 14,
2004 as the weight of the evidence, as represented by the opinion of Dr. Valentino, did not
support a relationship between total disability after this time and appellant’s surgery to the left
carpal tunnel.
By letter dated August 18, 2006, appellant requested a hearing. At the hearing held on
December 13, 2006, her attorney argued that there was a conflict between the opinions of Drs.
Fried and Valentino and also raised questions as to whether Dr. Valentino was an impartial
medical examiner or a second opinion physician and whether Dr. Valentino was properly
appointed.
In a decision dated March 2, 2007, the Office hearing representative affirmed the Office’s
August 15, 2006 decision.
LEGAL PRECEDENT
As used in the Federal Employees’ Compensation Act, the term disability means
incapacity, because of an employment injury, to earn wages the employee was receiving at the
time of injury. When the medical evidence establishes that the residuals of an employment
injury are such that, from a medical standpoint, they prevent the employee from continuing his
employment, she is entitled to compensation for any loss of wage-earning capacity resulting
from such incapacity.2
Whether a particular injury causes an employee to become disabled for work and the
duration of that disability are medical issues that must be resolved by a preponderance of the
reliable, probative and substantial evidence.3 The medical evidence required is rationalized
2

Bobby W. Thornbuckle, 38 ECAB 626 (1987).

3

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

3

medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issues of whether there is a causal relationship
between appellant’s diagnosed condition and the implicated employment factors. The opinion of
the physician must be based on a complete factual and medical background of appellant, 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 appellant.4
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.5 In situations where there are
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.6
ANALYSIS
In the instant case, the Office accepted appellant’s claim for bilateral carpal tunnel
syndrome and for the necessary surgeries. On July 14, 2004 appellant underwent an accepted
median neuropathy with brachial plexopathy left upper extremity. Dr. Fried, appellant’s treating
physician, indicated in his chart note of October 4, 2004 that he treated appellant for, among
other things, repetitive strain injury secondary to keying and repetitive activity as in data entry,
that she was unable to return to her work activities and pointed out that “increased activity
definitely increases her symptoms.” In a chart note dated May 16, 2005, he noted that appellant
remained symptomatic. Dr. Fried, however, did not offer an opinion on whether appellant was
disabled for any specific period of time. He diagnosed symptoms and enumerated possible
treatment but that is not relevant to the question of whether appellant was able to work.
In a report dated June 23, 2006, Dr. Valentino, the second opinion physician, opined that
total disability and maximum medical improvement from appellant’s July 14, 2004 surgery
would have typically been reached by September 14, 2004 and that the records do not
substantiate any additional disability. This opinion is not contradicted in the record. Based on
Dr. Valentino’s opinion, the Office found that appellant was not entitled to compensation for
disability after September 14, 2004.
The Office is not empowered to search for opinions which may be inferred or guessed
from the reports of treating or examining physicians. The law requires that medical opinions be
rationalized and explicit. On this record, the weight of the evidence rests with Dr. Valentino.

4

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

5

5 U.S.C. § 8123(a).

6

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

4

CONCLUSION
The Board finds that appellant has not offered rationalized medical evidence on the
question of whether she had a continuing disability after September 13, 2004.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2007 is affirmed.
Issued: April 28, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 12-216
Issued: June 6, 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 November 9, 2011 appellant filed a timely appeal from a September 6, 2011 Office of
Workers’ Compensation Programs’ (OWCP) decision denying his claim for an employmentrelated injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that his lower
back, left hip and left leg conditions are causally related to a July 18, 2011 employment incident,
as alleged.
On appeal appellant contends that OWCP’s decision was contrary to the medical
evidence submitted.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 6, 2011 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 25, 2011 appellant, then a 53-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a lower back, left hip and left leg injury as a result of
reaching back to retrieve a package while sitting in a truck in the performance of duty on
July 18, 2011.
By letter dated July 30, 2011, the employing establishment controverted appellant’s
claim.
In a July 19, 2011 report, Dr. Aretha Persaud-Mancusi, a family medicine physician,
diagnosed possible herniated disc. She indicated that appellant was reaching backward in a car
when he felt a sharp pain in the lower back and hip radiating down to his leg on July 18, 2011.
By letter dated August 2, 2011, OWCP requested additional factual and medical
evidence. It allotted appellant 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted a June 29, 2011 report by Dr. Persaud-Mancusi
indicating that appellant was seen in her office that day and was out of work from June 24 to
July 4, 2011. Dr. Persaud-Mancusi advised that appellant was able to return to work without
restrictions. In a follow-up report dated August 2, 2011, she diagnosed back pain and
paresthesia, ruling out herniated disc. Dr. Persaud-Mancusi indicated that appellant had
problems with full weight bearing on the left leg, difficulty lifting the left leg and numbness in
the knee.
An August 4, 2011 magnetic resonance imaging (MRI) scan of the lumbar spine showed
large, extruded disc herniation on the left at L2-3 which demonstrated marked inferior migration
to the level of the left L3-4 neural foramen. There was marked central stenosis and left lateral
recess stenosis with compression of the left L3 nerve root, marked central stenosis at L3-4 due to
facet arthropathy and bulging and degenerative changes at the remaining levels.
On August 8, 2011 Dr. Laurence E. Mermelstein, a Board-certified orthopedic surgeon,
diagnosed lumbar disc displacement without myelopathy, thoracic/lumbar radiculopathy and
lumbar stenosis. He indicated that appellant was a letter carrier who sustained a reaching injury
and complained of lumbar, buttock and left hip pain, as well as left leg weakness and numbness.
Dr. Mermelstein opined that appellant’s status was total temporary impairment. He provided a
work/impairment status note indicating that appellant could not return to work due to the
aforementioned injury and diagnosis that same day.
Appellant also submitted physical therapy notes dated August 11, 2011.
On August 12, 2011 the employing establishment controverted appellant’s claim for a
second time.
In an August 22, 2011 report, Dr. Persaud-Mancusi stated that appellant suffered an
injury to his back on July 18, 2011. She indicated that an MRI scan was ordered which showed a
new disc herniation in the upper lumbar spine L1-3 causing neuropathy and paresthesia to the
left leg. Dr. Persaud-Mancusi explained that appellant had a history of old herniation of the
lower lumbosacral spine L4-S1 which aggravated his pain.
2

By decision dated September 6, 2011, OWCP denied appellant’s claim on the basis that
the evidence submitted was insufficient to establish causal relationship between the diagnosed
conditions and the July 18, 2011 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of July 18, 2011 occurred at the time,
place and in the manner alleged. The issue is whether appellant’s lower back, left hip and left
leg conditions resulted from the July 18, 2011 employment incident. The Board finds that
3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

3

appellant did not meet his burden of proof to establish a causal relationship between the
conditions for which compensation is claimed and the July 18, 2011 employment incident.
In her reports, Dr. Persaud-Mancusi diagnosed back pain and paresthesia, ruling out
herniated disc. She indicated that appellant was reaching backward in a car when he felt a sharp
pain in the lower back and hip radiating down to his leg on July 18, 2011. On June 29, 2011
Dr. Persaud-Mancusi advised that appellant was able to return to work without restrictions. On
August 22, 2011 she reiterated that appellant suffered an injury to his back on July 18, 2011.
Dr. Persaud-Mancusi indicated that an MRI scan was ordered which showed a new disc
herniation in the upper lumbar spine L1-3 causing neuropathy and paresthesia to the left leg. She
explained that appellant had a history of old herniation of the lower lumbosacral spine L4-S1
which aggravated his pain. The Board finds that Dr. Persaud-Mancusi failed to directly address
the issue of causal relationship as she did not explain how the mechanism of the July 18, 2011
employment incident caused or aggravated appellant’s conditions. She did not provide medical
rationale explaining how appellant’s lower back, left hip and left leg conditions were caused or
aggravated by reaching back to retrieve a package while sitting in a truck on July 18, 2011.
Lacking thorough medical rationale on the issue of causal relationship, the reports are of limited
probative value and not sufficient to establish that appellant sustained an employment-related
injury in the performance of duty on July 18, 2011.
In his August 8, 2011 report, Dr. Mermelstein diagnosed lumbar disc displacement
without myelopathy, thoracic/lumbar radiculopathy and lumbar stenosis. He indicated that
appellant was a letter carrier who sustained a reaching injury and complained of lumbar, buttock
and left hip pain, as well as left leg weakness and numbness. Dr. Mermelstein opined that
appellant’s status was total temporary impairment and advised that appellant could not return to
work. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.8 Dr. Mermelstein did not provide medical rationale explaining how appellant’s
lower back, left hip and left leg conditions were caused or aggravated by reaching back to
retrieve a package while sitting in a truck on July 18, 2011. Thus, the Board finds that appellant
did not meet his burden of proof with the submission of Dr. Mermelstein’s report.
The August 4, 2011 MRI scan report is diagnostic in nature and therefore does not
address causal relationship. As such, the Board finds that it is insufficient to establish
appellant’s claim.
The physical therapy notes dated August 11, 2011 do not constitute medical evidence as
they were not prepared by a physician.9 As such, the Board finds that appellant did not meet his
burden of proof with these submissions.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a July 18, 2011 employment incident, he
has failed to meet his burden of proof.

8

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

9

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

4

On appeal appellant contends that OWCP’s decision was contrary to the medical
evidence submitted. For the reasons stated above, the Board finds that his arguments are not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted sufficient rationalized medical opinion
evidence to establish that his lower back, left hip and left leg conditions were sustained on
July 18, 2011 in the performance of duty, as alleged. Therefore, appellant has failed to meet his
burden of proof to establish a claim for compensation.
ORDER
IT IS HEREBY ORDERED THAT the September 6, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 6, 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

5